right thank you may please before council i'd like to begin the argument by addressing a question that was raised at the closing argument and in the court's memorandum opinion and order below and it was a criticism of the of this case and what the court said was essentially with these fifty one gentlemen in this collective class that want to get paid for performing work off duty on their blackett berry devices they have sued the department the chicago police the city of chicago their employers why on earth do they not test their employer why don't they fix this matter and submit time slips why don't they say hey i work the overtime pay me and i want to return to that question and start with the answer that question with every single one of the collective class anyone that gets a blackberry in the chicago police department they are made to sign a compliance statement upon issue you have to sign it what does the compliance statement say about off duty work it says if i accessed my department e mail account respond to electronic messages or use the department issued electronic communication device related to department business off duty i will not be compensated unless i am on an official callback assignment as defined in the labor agreement or i'm directed by my superior to immediately perform a substantial task with overtime authorization from the superior directing the request n that's the first thing they get to see when they get that black berry and they're told you keep them on twenty four seven and you will respond now the district court in its decision  leads the city to argue that the seventh circuit here should adopt white and white vs baptist memorial case out of the sixth circuit and i would suggest that would be a something that the seven circuit should resist it has always been and it remains the law in this circuit that when an employer has actual or constructive notice of overtime work being performed the employer has to pay for it now why can answer no it's too late at oral argument to attack a decision that very strongly supports your opponent that's what the briefs are for right and it was  your briefs never contend the point using correct because it was our contention on reading the memorandum opinion and order that the court relied on catholic versus s precedent and white is about as adverse to your clients as it can be you have to entrust a paid that the court of appeals may follow well you don't just keep ignoring it in your opening brief which is what you did well i apologize the the white itself we would love to have had the facts of white because look at the factual underpinning of what there was we we address the party's arguments and the city of chicago has relied on white right then and now ok and we addressed that unfortunately in our reply prefer says our initial file  the the situation in white was these employees had to sign a document saying that they knew what the procedure was to get over time when they work during their lunch break none of the fifty one cook member collective class ever had to sign anything saying we know the procedure to get overtime pay when we work on our black berry devices because there was no such procedure there was no specific procedure really they all knew how to ask for overtime right they all knew how to ask for overtime the only type of overtime that was differentiated was black berry over time and that was a result of the fi that that started in two thousand and ten so yes did they know how to get overtime sure but consider where they work consider the things that they don't see in the memorandum opinion and order they're led by chief wrote one of the highest ranking members of the chicago police department he said when he was not exempt he would work for free and he said he felt that was his right resolve this case on summary judgment probably would have had to go back for the trial that you've already had there was evident plenty of evidence in the other way your out of respect were on clearly erroneous review respectfully i would disagree with that there was plenty of evidence the other way and here's an example the district court talked about saying  proposition to that we offered i think thirteen or fourteen different witnesses including some of their witnesses that said yes indeed we were the theory was that the city was aware that such work might be done i was not keeping track of whether the officers were submitting overtime pay requests ford there's no special category of quote black berry work there well there you know the city sort of made one when it issued general orders that essentially put up a bunch of roadblocks to anyone submitting a at over times that for the blackbird work and that is you know unfortunately the difficulty i have here is we are arguing that the district court got it wrong and you know hence we have this jar used to hearing arguments like that well so well it is a it's a generalist argument and the problem i have is we have all the sites we have is there any evidence is your offer any evidence that requests for overtime pay for this off duty black berry use were ever refused were ever refused  asked apartment there were some of the fifty one who did request right they knew how to do well and got paid right ok some of the fifty one there were two that testified one that didn't testify but the district court said he did testify there were two and those two were plaintiffs in this case hamilton and paid and what those two also said was they only did it when they worked two hours or more it was another question  did everybody keep track of these to their time and there were all of the fifty one they make notes about how much time they spent five minutes ten minutes into our house we said mitt you're on it and how the heck do you have get any payment if they didn't even keep time was right to off duty work i must say i don't understand that technically you may have records of at what time an e mail is sent but where is the record for how much time was spent composing it  reading the e mails that led to its composition that judge we do not have yet and that's sending an e mail this is the work of an instant right but the compensation sought would be for the time composing writing for thinking about or thank you and may it please the court of this court should affirm the judgment the district court at the trial in this matter plaintiffs uniformly admitted at the top that the supposed over time they see for which they seek compensation was never reported to the city in accordance with the city's established reasonable practices for reporting time the city's practice procedure is if you have overtime there is a slip to fill out report the time and it's paid by failing to comply with those reason procedures are that there plaintiff's f l s a claim is barred absent a showing of two particular exceptions to the rule first that the city somehow affirmatively prevented plaintiff from from reporting their time whether through a policy of through some other means the plaintiff chose in this case to proceed by showing attempting to show a policy or in a case in which the city could be shown to actually know that the overtime had been worked and was not paid neither showing was made here and the district court's findings in that regard were not clearly erroneous first responding to the judge he said brooks question regarding the status of white at present no court of appeals has disagreed in any way with the statements and in reason for disagreements been offered by plaintiff's counsel but given that the white rule is basically a culmination of a lot of authority that i believe can be traced back to at least then the early one nine hundred seventy s the brumby law decision i believe is one of the earliest examples it appears this is been a consistent case white basically is is what it is there was a dissent in white but not on the legal point correct and i thought it was on the point similar to the one george hamilton play the difference between summary judgment and trial correct and i believe in the reply of the portions that plaintiffs can quote from white were actually quotes from the dissent rather than that then the jordie just like that issued fair but again there was no there was no evidence here of actual knowledge of unpaid overtime there is no evidence of a policy for sure unwritten or written that prevented the payment of overtime were going there was some evidence of concerns that led congress to write the f l essays broadly as it did to avoid evasion that it does a supervisor who knows that off duty work or off schedule work is being done have any duty to follow up  and see if the if the employee has has actually been paid for that work or has requested pay for my understanding of the law is that there is there have been some there are some broad statements that employers are required to keep devices that are basically going to be on twenty four hours a day and police officers who are going to need to respond who can expect to be to be called upon to respond off duty whether it's a source that's contacting them or an emergency that comes up so it seems to be a supervisor is going to know in general that at least some off duty work is going to be conducted that way right that's that's why right right right and that and that and we're not we're not trying to push back against that knowledge of work but why it's quite clear that there is there are two components nesby knowledge of both its knowledge of the work and the knowledge of the work was not being paid and that's where plaintiff's right is the problem here there's absolutely no evidence in this record that the supervisors ever knew that this work was and wasn't being paid or that they had reasons and we said that constructive knowledge should be considered well i do want is it not is your theory as i understand it though that if you've if you've got the knowledge that the work is being done and you and the city have set up a reasonably convenient process for for taking care of that it's ok to just put the onus on the on the employee without further supervision absent some sort of affirmative knowledge that that it's not being complied with and what we have here is the opposite that we have supervisors who testified that they were under the belief that this time was being reported they had every reason to believe that when it was possible oftentimes it wasn't possible because no one's listing how work was performed in the city considered a relevant but when they had some sort of reason some sort of ability to ascertain from what was submitted to them that that there was a black berry work being done it was being paid plaintiffs have cited not a single instance ever in which an individual reported his time to the city in compliance of the procedures set reasonable procedure set forth people who are off were have their phone and cetera recalled lots of times and there's lots of work in there's some question in other businesses and about how they're going to compensate for that and there's a lot of talk about that because it is a lot of time after the office closes but in this case it seems that they're what they say is only two people but is there a change in policy now that i change standpoint because what we're looking at here i see no way how you can even compensate these people when they don't keep track of their time and don't have a documented thing this judge easterbrook points out the phone call is almost irrelevant it's the time spent developing and reacting to it all that sort of things and that's and that's exactly the problem the city faced with here and there were there was testimony that was impossible to to know because it's not just calls from supervisors it's calls from confidential informants it's calls from from subordinates that a supervisor would have no way was had no way to ascertain on his or her own that there was working for him or how much work was being perform  the issue is that plaintiffs implicitly consider this point that there's that the time slips are they don't differentiate between black berry and otherwise this was a concern this was a construct of the plaintiffs in this case the plaintiffs in this case for reasons that are the plaintiffs themselves differed on decided the black berry work was somehow different than everything else they did for some reason holding a black berry in your hand was somehow a unique event that would not be compensated but it was all speculation  which are pretty hard to reconcile with the a fellow say i don't i don't believe they are i but the problem i have with the problem i think is but is presented with plaintiffs reading of these orders as plain as a take an interpretation they say look how ridiculous these orders are it's impossible to get compensation that's that's a ridiculous requirement and doesn't apply they fell say but the response is there that the that those requirements are ridiculous because are being misread there's no requirement that a that a supervisor in advance authorize somebody to seek overtime plaintiff alan himself admitted when i get an e mail i know that it's implicit in that that i'm being off the right to answer that e mail and do what's being