good morning your honour's adam hansen on behalf of plaintiff appellant sharon i said and meant please the court the district court erred in concluding that appellee that no life insurance appeals nurse consultant position qualifies for the fair labor standards act professional exemption this court respectfully should follow the th circuits decision in clerk versus seventeen the leading appellate decision on this precise issue and hold that such employees are not exempt from the fair labor standards overtime requirement under the professional exemption there are two problems with respect to the governing statute and implementing regulations the st pertaining to the duties that these employees perform the nd pertaining to the minimum educational requirements required for this if for this position beginning with the duties the essence of this job is to take medical information gathered in a clinical setting by doctors nurses etc and apply that information to extraordinarily detailed clinical guidelines to determine whether those guidelines are satisfied for the purpose of accepting or rejecting a request for insurance coverage and when i do you with the proper training one year of lpn vocational education i believe you and i could do that stand correct with a qualification so this company does employed both registered nurse and happiness so approving the benefits on their own is something that only lawrence can do in my right you are correct to a point if i can make one follow point about that that's the only formal distinction for example in the job descriptions between the two it's pretty significant that's a pretty pretty significant trust that's been given to  ahrens that's knocking into the lp hands i'm not sure i would agree with that characterization the job is to look at the guidelines look at the clinical information and determine whether the guidelines have been clearly satisfied  review i would never suggest that this could be performed by a computer and that's an important point to make and i want to come back to the prior question but let me get to this one st the idea that a job requires human intervention that is not the touchstone of whether discretion or independent judgment exists it's human judgment that required unique it's it's human intervention i mean we require human beings to perform lots of jobs that don't qualify for the for the professional or administrative exemptions under the fair labor standards act the test speak to making a decision based on guidelines within a narrow range of options as being nonexempt work so it's not it's not that everything that's not robotic is exempt the test doesn't doesn't frame itself in that way but if i could return to your original question there's a very important point here whereas the distinction that your honor identified is the only formal distinction in the record what we found in discovery is that even that formal extinct distinction falls away the company allows the lower level lpn nurses the vocational nurses to in fact approve benefits when they find the criteria are satisfied and this is done by the nature of the job functions themselves are not ones encompassed by the professional exemption in the russian and for me in terms of practice one gets time  in practical nurses and on and on and the license nurses are on salary or act as a practical matter who makes what is the difference in their annual salary in other words is there a meaningful difference between the licensed nurse who who does not get time in the back to call nurse  so the best answer unfortunately is the precise answer that question is not on the record what is in the record is there was complaints from there they are and nurses about that this what they viewed as the artificial distinction the company had end their salary well the l p s don't have a salary so one has a salary one has an hourly rate you just get the amount that you work per hour plus the time and a half on all hours over forty so whether one would be higher and then the other would depend upon the number of hours worked in a given week and so forth and your clients looking to go on an hourly basis yes yes hourly with overtime this is a job that is a very production base and this is a job where there is intense pressure to have  turnarounds to get your files resolved over one thousand files considered per week by over a one hundred employees this is a pressure cooker of an environment and you know this point in that this court's davis case which was  administrative exemption case they really looked at that and said the fact that work can be measured and benchmarked and tested and audited in such a fashion is typically a dead giveaway that this is not a white collar position where such benchmarks and measurements are are more difficult to measure with respect to with respect to the duties the audit's i think in this case are one particular fact that is highly relevant with respect to the fact that that this is not a question of pure discretion and judgment the company looks at the results of the cases these nurses review and then basically test them on a limited basis to determine whether those decisions were correct or incorrect  well this is what i'm what i'm speaking of is something separate so denials are reviewed in every single case and so if we find paid this claim should be denied that goes up to a doctor for further review in addition to that the company has auditing it will simply grab a random sample of cases look at those cases and try to determine whether the result was correct or incorrect and the nurses are expected to maintain essentially a correctness score of ninety five percent so certainly there can be divergent outcomes but it's very important in this industry that as the th circuit said in the sense the clark versus seventeen case to wring as much discretion out of the system as possible aside from this litigation it's very bad from a regulation perspective and insurance policy perspective and accreditation perspective for two identical cases to be treated differently that's why at this level with the nurses entire point is to make the job application of the guidelines and as the as the regulations state simply applying well established techniques or procedures described in manuals or other social sources within closely prescribed limits to determine the correct response is a nonexempt function under both of the bigs administrative and professional exemptions i see that my time has expired i'll reserve my time for a bottle thank you mayor please of course i'm atlanta p d i'm with jones day i represent the employer let me just take immediate issue with the notion that the scenting case and this case are the same they're actually diametrically opposite cases the guidance to the clinical setting the regulations as aryans who are licensed by the state board are presumed to be professionals and that l p n s who are case were l p n s and the employer in that case had classified l p n s as exempt even though the rule is that they don't qualify and the part of the seventeen decision that deals with the professional exemption it's very straightforward the fish market said l p s do not have they don't satisfy the rd prong because they do not have a degree it was not obtained through a proto long course of specialized election will instruction that's black and white that true and the employer not case argued all europeans had experience that would bridge the gap and would qualify them to beat the equivalent of our ns and the fed circuit said no the department of labor has commented on that specifically with respect  s and has said that additional experience does not that is a gap that's the sum and substance of the seventeen case with respect to the professional exemption there is discussion and seventeen about the administrative exemption but it's very straightforward what what the court said professional exemption and i think it's apparent as a matter of law now if i could explain just a little bit highlight a few points about that this this case focuses on the st prong of the professional exemption which is was the r n degree necessary to do the job and this court this court's pippins case gives very useful guidance about what it means for that st prong to be satisfied when is it satisfied the advanced knowledge prong and what pipin says is it's really two things does the employee rely on the knowledge of the profession advance knowledge of the particular profession and the nd part is to exercise discretion and judgment that is characteristic of the field we would submit that the evidence in this case and in particular the plaintiffs own description of how she performed her job places her very squarely within the context of satisfying the advanced knowledge prong the st prong of the exemption she ad s very candidly that she does draw on her nursing education and her nursing experience in assessing patient's health status and in deciding what whether certain treatments are medically necessary or not and in applying the criteria that helps make that decision and it's not it's not at all surprising that she would have to use her nursing background and education when one focuses on the types of decisions that she's making and these are outlined in the record so for instance ms i said has to decide whether there is a substantial worsening of co morbid conditions when the criteria the guidelines do not spell out when what co morbid conditions should be considered or what constitutes substantial worsening that's a judgment call that the r n has to make and she's admitted that she draws on her are an education and experience to make that medical judgment call that's far from surprising another example in the record is that she has to decide whether the patient whether the record will reflect that the patients physiologic status is stabilized when there is no detail about what would constitute a stable physiologic corner making you have to do understand the r n is vested in and trusted by and to make a decision to grant benefits find that certain medical services are covered without any approval from above that's important if they are and decides that the that the services are not covered in other words is going to deny the benefits that decision has to be approved by a doctor but that's a very important distinction because are not vested with the authority to make independent decisions in either case which is perfectly consistent with the nurse practice acts that work well and let me let me problems in this case and no one was asked about what this e mail means and our position is that the e mail by no means what allow a non speculative conclusion that this  allowed to make determinations about medical necessity the very beginning of that e mail and person is questioning ms sarabia hussein would you consider these files and then put a a n a make the final you know until the final information this arabia has access to all of these files she's the supervisor of the department there's nothing on the face that e mail to suggest that she did not review these files but was delegating to others the process of going on a computer going through the various machinations and actually entering the the approval it's completely speculative of for plaintiff to argue that this you're going to get your salary no matter how many hours you work in a particular week if your hourly you get paid on an hourly basis you have to earn every penny that you make so to speak so being salaried is considered to be a valuable  classification by many people the trade off is salaried employees don't get overtime but the law tells us that what determines whether an employee is untitled overtime or not is whether one of these exemptions a satisfied and in this case again our position is that  plaintiff it's very comfortably within the professional exemption she is making the decisions that nurses make she is making those decisions based on her education and her training and they're very consequential as the court can certainly imagine that the record specifies that but certainly the r n is the one arguing it i mean why would we even consider that act if it's not because it shows the company isn't trusting the ahrens with the type of decision making that professionals  but if patients don't know it you can hardly ask us to consider whether patients would would have been different things i think we i don't know whether you're all right i  minimum salary requirement which in the regulations is four one hundred and fifty five dollars a week i believe is the minimum miss i said was well well above that minimum salary requirement so once that threshold is clear then the compensation that the employee makes is taken off the table and is no longer relevant thank you hanson your like to focus my rebuttal on the education project the minimal minimum educational requirement to perform this job st to clear up a misconception or a misstatement about the clark versus and teen case that case like this case also involved a company that used a mixture of l p and r and nurses the difference there was there was no formal distinction they were just all lumped into the same pot here of course we have the formal distinction between the two with the one formal distinction the company has drawn that is of course not honored in practice all the time  i would also point the court obviously non presidential to the recent rico decision from the western district of wisconsin this is a decision cited in our reply brief came down after our principal brief but it it's really the most thorough of all the decisions district court or circuit court on this question and i pointed out simply because in that case it was purely an r n position that company didn't even hire lpn nurses and the court still concluded that because the minimum i agree with my co counsel that that's not strictly necessary it's always nice to hear what the department of labor thinks but respectfully i think from the perspective of our clients we're looking forward to getting a decision on this and moving forward with the case in the event that we prevail here are the last address just this point of the practical breakdown of this formal rule please just rely on the record it's if anything the  inference on their side is the one that's weak you read these documents and it was there were witnesses that were question and depositions and it it's all about if you're comfortable with this let's do it again like we did last time you can use my name here or my credentials yes we can nurse approve with this position that the techs in the subtext just absolutely leap off the page to make it clear that this was happening and as i suggested earlier it doesn't matter whether it was happening all the time if it ever happened and it happened more than once we know that the minimum qualification for this position is the one year vocational nurse and the persons involved in this questioned about it when they were compos deposed wrecked where they did they were they asked about it and you think confirmed that it was being done as you were urging there the only deposition testimony that i can recall i don't believe it was asked of the nurses because that would have been the other side's deposition but the only deposition i can recall was of a corporate manager he was confronted with this information and he said this would be contrary to our policy i would assume that if someone's name was used to approve that that person did it that would be our standard up rating procedure simply not willing to confirm nor deny or under the factual existence that this was going on but read the documents and certainly at the summary judgment posher if not just a common sense problem here it's clear that this was happening i would ask the sente it should be in the opinion no i haven't a man ask you questions i have to get pinion right in front of me and i'm not finding the answer right away were they and where those employees able to prove  is in this case you essentially remove the duty from the l p s but that cuts in our favor certainly because if the lp ends in the r instigator could make the decision in seventeen at the competitors and in practice here that all shows