on a salary basis which is a prerequisite for determining the pluck ability of various other relevant exemptions to the overtime requirements and the federal labor standards act and the arkansas minimum wage act persuasive authority and that the reason i ask does your reply brief which struck me as almost interminable never addressed the key question and use which is ff worked less than the forty hours or eighty hours for a two week and did not have enough on you vacation and other time and therefore got paid less than twenty eight or whatever the whatever the number was for the annual salary base there was there must i mean opposing counsel brief makes it clear that there were there was such evidence and that that ends the in court and you never it sure you can put it on a piece of paper but that doesn't that doesn't that's not the proof of the putting so it's so is your argument that because there were fifty one out of two thousand weeks there were only fifty one many how many weeks out of the total number of weeks that you put in your eight a well there's a couple of exceptions but your honor clearly testifying that if they have no give up and they work less than the eighty hours they're not going to get paid for the eighty hour period so how can it be a guaranteed minimum well i believe you know we've addressed what mr carr testif little leave you are not required to pay them for that day and you are so in compliance with providing a guaranteed minimum salary the pre determined amount and oh by the way if you don't if you don't have if you don't work eighty hours and work pay period and if you don't have stuff and if you don't have an other benefit that you can give up th distinguish between i want to guy who didn't work eighty hours didn't didn't didn't have anything to give up that falls within what you're calling the allowed exception and still are instances where they didn't work eighty they didn't have a a benefit to give up were to burn and they failed to get paid a guaranteed minimum amount and that's consistent not only with the three times deposition that mr carter said they only get paid for the hours that they work but also during the written discovery phase they had thirty days to answer the question with the help of their attorneys how did these people get paid and they were very clear that they got paid by the hour for the hours that they worked tellingly mr coats on the other side clocked in at the beginning of the day and they clocked out at the end of the day and they got  tangent i'm sorry the salary basis test was not met according to the district court because the appellant did not produce a single fact that there was a guaranteed predetermine a minimum payment each week when they got it on their payroll records and ninety eight point nine percent of the of the of the pay checks that are produced in the record are consistent with why don't why can a jury find  the regulation does not provide for an analysis of what generally happens but instead now what language you're talking that's what hughes says which i which which basically jettisoned prior six  quantity and quality of work into it's got to be guaranteed yes i think that is one exception in twenty three years means the jury can't find they were paid on a salary basis what other what what case other than and who says that well we're not relying on hughes we're just relying on the reline use that's where i got it was from your brief we did reference used but we rely on the plain language of the c f r which says that the mout must be paid not subject your adduction based on the quantity of work or quality or quality although that's an issue in this case subject to the action doesn't mean that mistakes or accidents don't happen seems to me that's a jury question if the defendant could walk back mr car an imbalance actual evidence to establish whether or not the salary was guaranteed but the so how can she put forth no evidence and it's evidence of what they are intended i mean if you falsify something like that you get sued all the time i think that the district court was writing in viewing it as a self serving label of course of course of course employers strive to get these exemptions where they're warranted and therefore they put they put all the self serving labels they can in the record to demonstrate that what they want is what judgment was appropriate and what why is it i mean not just because the the you know i get their answers and mr card you know prescribe the normal i don't his testimony does not refute nor does the fact that it's an hourly rate nor does the fact that eighty hours is the norm and we pay some straight line overtime none of that refu quality of the work is the is the very fact that but not they don't have to they don't have to write in that you know they don't have to print the reg language of the regs in payroll  calculated described in hourly terms and with the clock punching and so forth which are facts a jury would take as suggesting it wasn't true self but the proof of the putting is how are they paid bran in order to get up to forty hours per week and  she was not paid the make up the differential between the forty and the twenty five seventy six falcon jets argument about that pay period is e could get to a jury but they don't actually explain what when did she work and why was she not paid the why was she only paid for the hours that she work yes more theoretical explanations that if mr carte didn't testify the way that he did and if they didn't answer discovery requests the way that they did it might have been inappropriate for the for the district court to in oppose its judgment  that the company's own deposition testimony about itself is not true and therefore they're entitled to a day before a jury to convince them otherwise  on jet at least five times admit that the employees were paid by the hour the admission came early in the case and the evidence in the record confirmed that and that's what  not always the f l a say in my experience with factual disputes in almost every case especially about the exemption the so basis test is a bright line rule and when there's not a kelsey's presence in the argument you provided to the court