[00:00:03] Speaker 04:
Good morning.

[00:00:03] Speaker 04:
I believe I reserved five for rebuttal.

[00:00:07] Speaker 03:
Thank you.

[00:00:07] Speaker 03:
Good morning, Your Honors.

[00:00:08] Speaker 03:
May it please you.

[00:00:09] Speaker 03:
Just so you know, the clock shows your total time.

[00:00:11] Speaker 04:
Great.

[00:00:11] Speaker 04:
Thank you.

[00:00:12] Speaker 04:
Good morning, Your Honors, and may it please the court.

[00:00:14] Speaker 04:
My name is Charles Ray.

[00:00:15] Speaker 04:
I'm here on behalf of the plaintiffs in this case, Hubbard and the other collective class members.

[00:00:21] Speaker 04:
The three major issues that are presented to you here on this case are one, to do a building block sort of approach on this is one, did the district court err in making the decision that there was no showing of willfulness or no question of fact of whether or not the actions taken by the county in this case were willful and whether or not that should continue to be decided by a jury.

[00:00:43] Speaker 04:
The second issue here is whether or not the... Just to interrupt for a minute.

[00:00:49] Speaker ?:
Sure.

[00:00:49] Speaker 02:
Don't you lose on everything else?

[00:00:52] Speaker 02:
If not, if he didn't err in that regard, isn't that basically the end of the case?

[00:00:58] Speaker 04:
It is.

[00:00:59] Speaker 04:
Yes, it would be because of the statutory issue that's there.

[00:01:02] Speaker 04:
However, if there is a finding of wilfulness, it does extend that statute from two to three years.

[00:01:09] Speaker 02:
Otherwise, you didn't make the two years and you don't have any argument about...

[00:01:14] Speaker 04:
We don't get to the next phase of those arguments.

[00:01:17] Speaker 04:
I would absolutely agree with that.

[00:01:18] Speaker 04:
And so the statute is clear that if there's a finding of willfulness, that it is extended from two to three years.

[00:01:27] Speaker 04:
And that's what we've been arguing from the inception of this case, that this was a willful failure to pay the overtime.

[00:01:33] Speaker 04:
And the district court's decision on the papers to say that it was not willful

[00:01:39] Speaker 04:
was error, because it's a question of fact, not a question of law.

[00:01:44] Speaker 04:
We're not here to define what an offer is.

[00:01:47] Speaker 04:
We're here to submit this to a fact finder and say, okay, when the county met with the union prior to beginning the COVID classes and had requirements of it, if there's a change in overtime pay or any type of change regarding wages, and they did- And what's the relevance of that to the Fair Labor Standards Act case?

[00:02:07] Speaker 02:
I mean, it might be a breach of, you know, the California collective bargaining laws, but what does it have to do with the Fair Labor Standards Act question?

[00:02:16] Speaker 04:
Because it's showing that their decision to not pay was willful.

[00:02:20] Speaker 02:
Well, it was certainly, I mean, they definitely made the decision if it's willful in that way, but whether it was willful in the sense that they knew that they were violating the Fair Labor Standards Act, what does the bargaining have to do with that?

[00:02:33] Speaker 02:
I was absolutely baffled by the connection.

[00:02:37] Speaker 04:
Sure.

[00:02:37] Speaker 04:
And in the MOU, there is a section that specifically cites the FLSA and says that where this is silent, where the MOU is silent, you yield to the FLSA.

[00:02:48] Speaker 04:
And FLSA says at 201 that you're supposed to pay for overtime for wages earned.

[00:02:53] Speaker 03:
So I mean, I'm having perhaps the same issue that Judge Berzon is having.

[00:02:59] Speaker 03:
I absolutely understand your argument that they willfully violated the CBA.

[00:03:06] Speaker 03:
but I don't understand how that relates to a possible willful violation of the FLSA.

[00:03:13] Speaker 03:
Are you saying that any willful violation of the CBA is automatically a willful violation of the FLSA?

[00:03:19] Speaker 04:
I would not make that wide ranging of a position.

[00:03:22] Speaker 04:
We're saying in the specific instance here, the county knew what the guidelines were and the FLSA does control in certain respects regarding overtime.

[00:03:32] Speaker 04:
The MOU says after over 40 hours, you're supposed to get certain over times and things of that nature.

[00:03:36] Speaker 04:
It's appellate's position that the evidence of the meeting shows that this was a willful failure of pay because 201 still applies.

[00:03:45] Speaker 04:
The MOU makes that clear.

[00:03:47] Speaker 04:
And so if we're willfully violating the FLSA per the MOU, we're still in the same position talking about the same issue.

[00:03:54] Speaker 04:
That's where those two points converge in our position in our mind.

[00:03:58] Speaker 04:
I understand that you're looking for at a starting point from the MOU to say, okay, now we're moving to the FLSA.

[00:04:05] Speaker 04:
I can understand that there's a step that's involved in that process, but it's a distinction without difference when the MOU says that the FLSA applies.

[00:04:15] Speaker 02:
Okay, and if the FLSA applies, then the question in this case is how does it apply, but what does that have to do with?

[00:04:23] Speaker 02:
whether there was a willful violation or not a willful violation.

[00:04:28] Speaker 02:
In other words, if you've had evidence that they had said to the union, you know, we're really not allowed to do this because the FLSA would require us to actually pay for the time in the hotel, but if you agree to it, we'll go ahead and not pay for the time in the hotel.

[00:04:46] Speaker 02:
But there's no evidence like that.

[00:04:50] Speaker 04:
So we're getting a little out over our skis in that respect because the issue here is whether or not the issue of willfulness should be submitted to a jury, to a fact finder.

[00:04:59] Speaker 02:
But you need a fact.

[00:05:01] Speaker 02:
What's the fact?

[00:05:03] Speaker 04:
The fact that it was willful was that they went and met with the union.

[00:05:06] Speaker 04:
They discussed the management folks, but not the recruits.

[00:05:09] Speaker 04:
And based upon the lack of discussion regarding the recruits, they walked away saying, we don't have to pay them.

[00:05:15] Speaker 04:
We have an implied understanding.

[00:05:17] Speaker 04:
Understand the implications of that.

[00:05:19] Speaker 02:
Well, even if they had an actual understanding, why would that matter unless the understanding was based on a recognition that they were violating the FLSA?

[00:05:28] Speaker 04:
The recognition is that no matter what they're supposed to pay for overtime that comes from a marriage of the FLSA which and the MOU.

[00:05:35] Speaker 01:
Council, the problem that you have to show that they knew that not paying for the time spent in the hotel as overtime pay violated the law.

[00:05:47] Speaker 01:
That they knew that and they willfully disregarded that legal conclusion.

[00:05:54] Speaker 01:
And that, yes, they definitely chose not to pay overtime for that time.

[00:06:01] Speaker 01:
What evidence do you have specifically that they knew the time spent in the hotel, not paying overtime for that time, violated the law?

[00:06:12] Speaker 04:
by specifically trying to obtain an agreement or an understanding that they would not pay for that time.

[00:06:19] Speaker 03:
Isn't that, I mean, this is a little far afield, but isn't that what management is supposed to do, to talk to labor and try to find out what their understanding is?

[00:06:30] Speaker 03:
Again, as Judge Berzon is saying,

[00:06:31] Speaker 03:
You know, if they'd sat down with the union and said, we know we can't do this under the FLSA, but here, why don't you help us violate the law, and maybe we'll give you something else.

[00:06:42] Speaker 03:
But isn't normally consulting with the union on something like this a good thing?

[00:06:47] Speaker 03:
Absolutely.

[00:06:47] Speaker 01:
And we're not, I'm not- To bargain for more than what the law requires.

[00:06:51] Speaker 01:
So if they're in negotiations with the union, we know that the FLSA doesn't require overtime for these hours, but we want to bargain for more.

[00:07:00] Speaker 01:
That was an option, right?

[00:07:02] Speaker 01:
So they had to reach an agreement with the union about what would happen under these circumstances that could go far beyond what the FLSA minimally requires.

[00:07:11] Speaker 04:
The FLSA in and of itself are 785.23, which allows reasonable agreements between parties that are not in violation of the law.

[00:07:18] Speaker 04:
And I think that bootstraps more or less the position that you're taking on it.

[00:07:22] Speaker 01:
So just reaching an agreement with the union be like, we can go above and beyond the law, or we can go to what the law requires.

[00:07:29] Speaker 01:
It doesn't necessarily imply that they were agreeing to violate the law, correct?

[00:07:33] Speaker 04:
I would say, I don't think you're ever going to get a defendant, especially the county, say that we're agreeing to violate the law.

[00:07:40] Speaker 04:
So we're never going to have an agreement for that.

[00:07:42] Speaker 04:
But what I'm saying here is that because they secured an implied agreement without even discussing the recruits, they knowingly believed that there was an issue of overtime pay.

[00:07:52] Speaker 04:
They did not discuss the recruits, just said, we're going to do what we want to do.

[00:07:55] Speaker 04:
That, in essence of itself, is the evidence of them knowing that they had a... So you're saying the problem is not that they agreed, but that they didn't agree.

[00:08:03] Speaker 04:
They did not agree.

[00:08:04] Speaker 04:
And here's the important distinction here is, think about the implications of what the county has presented as how this went down.

[00:08:12] Speaker 04:
They talked about the management structure and them being paid overtime.

[00:08:16] Speaker 04:
They never discussed the recruits, ever.

[00:08:19] Speaker 04:
And the county said because they failed to discuss the recruits during that meeting regarding overtime, they had an agreement with the union that they were exempt from overtime.

[00:08:29] Speaker 04:
That's an insane connection to me.

[00:08:31] Speaker 02:
But it wasn't that they were exempt from overtime.

[00:08:33] Speaker 02:
The district court here, or a district court in another case, found that there's an unusual and specific regulation here regarding firefighters and training and so on.

[00:08:50] Speaker 02:
Certainly.

[00:08:51] Speaker 02:
And so the question was whether the fact that they had to stay in the hotel was within or outside of it.

[00:08:57] Speaker 02:
The answer is not transparent.

[00:08:59] Speaker 02:
It's not.

[00:09:00] Speaker 02:
And so if it's not transparent, then how could they have willfully violated it?

[00:09:06] Speaker 02:
And especially when the district court ultimately found that they didn't violate it at all.

[00:09:10] Speaker 04:
The district court's finding they didn't violate it was based upon the meeting.

[00:09:15] Speaker 02:
And the meeting itself shows that the county was... The district court's finding was based on the meeting and not on the fact that there was an actual, his understanding of what the FLSA requires?

[00:09:27] Speaker 04:
The meeting with the union and the implied understanding and the consult, I believe the district court actually used the word consult, the consulting between the county and the union is what made this not willful in the eyes of the court.

[00:09:44] Speaker 04:
That's my understanding of how that... I thought he found it.

[00:09:47] Speaker 02:
In the other case, they found that it was actually legal, not willful.

[00:09:52] Speaker 02:
Legal.

[00:09:53] Speaker 04:
I'm not saying that these agreements are unenforceable.

[00:09:56] Speaker 04:
That's not the argument here.

[00:09:57] Speaker 04:
The argument here is whether or not this was a valid agreement, whether or not this was willful, because there was no agreement.

[00:10:03] Speaker 04:
They didn't even just, again, they never discussed the recruits, and walked away with implied understanding.

[00:10:10] Speaker 02:
But if what they did was legal under the, was valid under the FLSA, then it can't be willful.

[00:10:17] Speaker 04:
I completely disagree with that analysis.

[00:10:19] Speaker 02:
How could it be willful if it has to be a willful violation?

[00:10:23] Speaker 02:
First, it has to be a violation.

[00:10:24] Speaker 04:
Because you have the FLC which establishes overtime pay.

[00:10:28] Speaker 04:
We can start there.

[00:10:29] Speaker 04:
Then you can have a reasonable agreement to exclude certain time.

[00:10:32] Speaker 04:
We're saying there was never any agreement.

[00:10:35] Speaker 03:
So are you saying that the prior panel is just wrong?

[00:10:41] Speaker 03:
If we want to go there, sure.

[00:10:43] Speaker 03:
So it's, in your view, it's obvious that this is a violation, but the other panel, unpublished decision, just didn't see it.

[00:10:53] Speaker 04:
We never got to this specific issue because the implied understanding, by the way, did not come out in that case until discovery in the instant case.

[00:11:02] Speaker 04:
Although I took the other panel as talking about what the meaning is.

[00:11:05] Speaker 04:
785 23 I'm assuming is there the reasonable agreement I'm also looking at the discussion of the CFR right and so There the facts in this case in the implied understanding here the fact that the county tried to secure an agreement in place saying we are not going to pay you for certain overtime we think is indicative and evidence is that this was willful because they decided they secured an agreement that was in no way a force enforceable and

[00:11:30] Speaker 03:
That's what did you want to reserve the rest of your time?

[00:11:32] Speaker 04:
I have a few short a few short minutes I just want to know that's fine address your time the way you want Yeah, no, I thank you.

[00:11:37] Speaker 04:
Thank you for that moving to the next point And this is whether or not the application of the relation back should apply to FLS a cases specifically ones that fall under the 216 notice requirement

[00:11:49] Speaker 04:
We believe that the guy, the case of guy that we've fully briefed on this issue, makes it very clear that the relation back that mirrors rule 23 should also apply in these cases for the obvious reason of the utility of what it provides.

[00:12:04] Speaker 04:
If we're going to say that someone doesn't enter a case, their entry point is not until their written consent form is submitted, then we have a timing issue here that's not covered, that Rule 23 explicitly covers, and should apply in the 216 type of cases, which is these FLSA cases.

[00:12:21] Speaker 04:
So it's not a very complex, it's a change in law, and we think that the law should be updated on that point.

[00:12:27] Speaker 04:
And finally, I'll just add, reserving my remaining time, is that the third point is whether or not when the court looked at the underlying case, the Hunt case that's been discussed, and that was up on appeal, when the court took the decision from Hunt, which was not raised on MSJ, and then applied it in this case, it never gave the appellant an appropriate time to show the distinction between the facts of that case and the instinct case.

[00:12:51] Speaker 04:
And so with that, I'll reserve my remaining time.

[00:12:53] Speaker 04:
All right, thank you.

[00:12:53] Speaker 04:
Thank you.

[00:13:09] Speaker 00:
Good morning, Your Honor.

[00:13:10] Speaker 00:
May it please the court?

[00:13:11] Speaker 00:
Elizabeth Arcee on behalf of the County of Los Angeles, the appellee.

[00:13:16] Speaker 00:
I'd first like to address Council's argument regarding the issue of willfulness.

[00:13:21] Speaker 00:
First of all, I'd like to point out that council indicated that willfulness is a question of fact that should have been decided by a jury instead of the district court.

[00:13:32] Speaker 00:
I'd like to remind council or your honors of its decision in 2022, Ray versus the Los Angeles County of

[00:13:41] Speaker 00:
public social services where it found that a court can decide the issue of willfulness on summary judgment where there were no issues of material fact and that was the case here.

[00:13:53] Speaker 00:
We submit that the district court properly decided that the county did not act willfully under the FLSA and I think the issue here

[00:14:02] Speaker 00:
that the weakness in the appellant's argument is exactly what your honor's questions have revealed, that it seems to be that there's a fundamental misunderstanding between the obligations that are provided for under the FLSA versus what's provided for under a collective bargaining agreement.

[00:14:21] Speaker 00:
In this instance, it's the memorandum of understanding.

[00:14:26] Speaker 00:
You know, appellant seems to conflate the two concepts together and as the court is aware,

[00:14:32] Speaker 00:
The FLSA sets the minimum statutory requirements that an employer is supposed to follow for purposes of compensating employees.

[00:14:41] Speaker 00:
A memorandum of understanding or collective bargaining agreement can negotiate for greater benefits than that.

[00:14:49] Speaker 00:
So you can have a situation where you can be legally compliant with the FLSA by not compensating employees for firefighter trainees for the time spent in the hotel outside of training.

[00:15:03] Speaker 00:
but then potentially violate the collective bargaining agreement if there are provisions in the collective bargaining agreement that have been interpreted to compensate for that type of situation.

[00:15:14] Speaker 02:
In this instance, all the collective bargaining agreement seems to say is comply with the FLSA.

[00:15:21] Speaker 00:
So the collective bargaining agreement, so this is another issue that I'd like the court to focus on as well.

[00:15:28] Speaker 00:
is that the council's arguments in terms of what the collective bargaining agreement provides for are simply his interpretations.

[00:15:37] Speaker 00:
There's been no evidence admissible from any county personnel indicating what the provisions of the collective bargaining agreement provide for.

[00:15:46] Speaker 00:
The collective bargaining agreement does in places say that we are to comply with the FLSA, but there's also language that opposing council cites to

[00:15:57] Speaker 00:
in his briefing, which he says to support his argument that overtime should have been paid, is he cites your provision that says no agreement, alteration, understanding, variation, waiver, or modification of any terms of these provisions contained herein shall in any manner be binding upon the parties here to unless made and executed in writing by the parties and if required approved and implemented by the county's Board of Supervisors.

[00:16:25] Speaker 00:
All the plaintiff cites to is a provision that generally says that firefighters would be entitled to overtime.

[00:16:35] Speaker 00:
The MOU, the collective bargaining agreement, does not define what types of activities would constitute overtime pay for purposes of the MOU, nor does it define any sort of, nor does it define

[00:16:53] Speaker 00:
What the compensate?

[00:16:54] Speaker 02:
Compensability of time spent training in an overnight situation would be the I mean it seems to me that there the wilfulness issue here is not difficult particularly because we have a Published opinion saying that it wasn't even a violation.

[00:17:15] Speaker 02:
So how could it be willful?

[00:17:16] Speaker 02:
The one piece of this that we probably wouldn't reach but which I'm somewhat interested in is the question of whether there isn't or shouldn't be some tolling available if, for example, it was willful.

[00:17:35] Speaker 02:
based, I understand that the Sixth Circuit has a higher standard with regard to the threshold.

[00:17:42] Speaker 02:
But even so, I mean, as I understand this system, if the complaint was filed in the last day that it was of the limitations period, then

[00:17:58] Speaker 02:
And if the time to run to accrual date is the consent time, it's never going to be timely, unless there's a toll it.

[00:18:11] Speaker 02:
Particularly because anybody other than the class, than the original plaintiffs aren't even going to know there's a case in time.

[00:18:19] Speaker 00:
Well, under your honor's hypothetical, if a plaintiff were to file on the very last day,

[00:18:25] Speaker 02:
Or it doesn't have to be a lesson.

[00:18:27] Speaker 02:
That just exacerbates it.

[00:18:28] Speaker 02:
But it could be a month before, or two months before, by the time they get the notices out and anybody gets them and so on, almost surely the time has run.

[00:18:40] Speaker 00:
So, Your Honor, I would focus your attention on 29 USC 256.

[00:18:47] Speaker 02:
I know it says that.

[00:18:48] Speaker 02:
I know it says that, but that leads to the question.

[00:18:51] Speaker 02:
But there were two judges in the Sixth Circuit and a district court that said that under their circumstances, there should be tolling.

[00:18:59] Speaker 02:
And I'm wondering why this is different, even though we don't have as high standards for

[00:19:04] Speaker 02:
for preliminary for notice.

[00:19:08] Speaker 02:
We still have some standards for notice and it still takes some time and people are still going to be out of luck who didn't know there was a case.

[00:19:15] Speaker 00:
Well, Your Honor, I think the difference there between the Guy case, which is an unpublished Michigan district court case.

[00:19:23] Speaker 00:
But it's not only a district court.

[00:19:24] Speaker 02:
There were two dissents in the Sixth Circuit.

[00:19:26] Speaker 00:
Correct.

[00:19:27] Speaker 00:
So the Sixth Circuit and the Clark case.

[00:19:29] Speaker 00:
So the difference that we see there is that the Sixth Circuit has adopted basically a one-step process.

[00:19:35] Speaker 00:
I understand that.

[00:19:36] Speaker 02:
I understand that.

[00:19:37] Speaker 02:
But they said under those circumstances, there could be trolling.

[00:19:40] Speaker 02:
I'm saying

[00:19:41] Speaker 02:
even without a higher standard, there's still a standard, and it still takes time, and the time's still going to run before anybody knows there's a case.

[00:19:50] Speaker 00:
Well, I do think it does make a difference, Your Honor, between having a one-step versus a two-step process.

[00:19:56] Speaker 00:
This Ninth Circuit has adopted the two-step process in Campbell versus City of Los Angeles, and I believe they recently reaffirmed the two-step process in

[00:20:06] Speaker 00:
a case.

[00:20:08] Speaker 02:
The first step still takes some time.

[00:20:13] Speaker 02:
And the time could run before anybody is informed that there's a case.

[00:20:18] Speaker 00:
I understand your point, Your Honor, but because of the two-step process and that the first step is a more lenient standard

[00:20:26] Speaker 00:
that for the most part can be decided by at least district courts within the Ninth Circuit based upon the pleadings and maybe some declarations that it does.

[00:20:36] Speaker 02:
But the time is more than zero and probably more than a month or two.

[00:20:40] Speaker 00:
That is correct, Your Honor.

[00:20:42] Speaker 00:
But, you know, practitioners that have operated in this area have moved, typically moved expeditiously to

[00:20:51] Speaker 00:
try to seek conditional certification at that first step.

[00:20:56] Speaker 00:
Going back to the Hunt case, which was the first case before this one, the court actually set a 60-day deadline for the plaintiff, Brian Hunt, to seek conditional certification of the case as a collective action.

[00:21:11] Speaker 00:
Mr. Hunt did not satisfy that deadline, which resulted in Mr. Hubbard filing this incident lawsuit.

[00:21:18] Speaker 00:
So, Your Honor,

[00:21:19] Speaker 00:
You know, whether it's the court, you know, district court that provides a deadline close in time after the filing of initial complaint or in many situations it is the expedience of the council that has moved right away to seek collective action certification that there is no prejudice there.

[00:21:42] Speaker 00:
I understand in this situation that appellant waited several months until after

[00:21:48] Speaker 00:
the lawsuit was filed before seeking conditional certification.

[00:21:52] Speaker 00:
But what I'm advocating for is that the county should not be jeopardized by that strategic decision to delay seeking conditional certification of that motion.

[00:22:03] Speaker 00:
He had the freedom and the ability to do so shortly after the complaint was filed.

[00:22:08] Speaker 00:
And especially one would think given the urgency of the fact that

[00:22:14] Speaker 00:
Mr. Hunt missed the deadline to seek conditional certification that they would have moved more expeditiously in the Hubbard case.

[00:22:22] Speaker 01:
Is there a case that actually says a district court does not have discretion to grant equitable tolling between the time of filing the complaint and the opt-ins?

[00:22:35] Speaker 00:
I'm not aware of a case saying that it doesn't have discretion.

[00:22:38] Speaker 00:
I think based upon the case law, the court does have the discretion to apply equitable tolling.

[00:22:43] Speaker 00:
because there are two factors that would support equitable tolling.

[00:22:47] Speaker 00:
The first factor would be, you know, were there extraordinary grounds that existed beyond appellant's control that made it impossible for the appellant to file a claim on time or that the county engaged in some sort of wrongful conduct that prevented appellant from asserting that claim.

[00:23:04] Speaker 00:
It seems that in this case, so the appellant has asked for equitable tolling.

[00:23:10] Speaker 00:
This is now the third time.

[00:23:12] Speaker 00:
The first time you asked for equitable tolling... I understand there's two different equitable tolling issues here.

[00:23:17] Speaker 01:
There's one based on alleged wrongful conduct, but then there would... I'm asking specifically about the period of time between the filing of the complaint and opt-ins.

[00:23:27] Speaker 01:
Is there any precedent or rule that you can point to that says a district court cannot grant equitable tolling from the time the

[00:23:39] Speaker 01:
action complaint is filed to allow essentially time for the first step in the process for people to opt in.

[00:23:47] Speaker 00:
I'm not aware of a case that addresses that issue in this specific context in determining... So it's an equitable tolling.

[00:23:55] Speaker 01:
Assume there's some discretion here on the part of the district court just to grant equitable tolling on that basis.

[00:24:05] Speaker 01:
We don't necessarily have to address a categorical rule in this situation because even if the district court had the discretion to grant equitable tolling, they would also, the plaintiffs would also have to show a three-year statute of limitations.

[00:24:22] Speaker 01:
Is that correct?

[00:24:22] Speaker 01:
To even make it matter, essentially?

[00:24:25] Speaker 00:
Correct.

[00:24:26] Speaker 00:
Okay.

[00:24:26] Speaker 00:
And I think that's the fundamental issue as well is that, and I think appellant has conceded that the two and three-year statute of limitations has expired

[00:24:35] Speaker 00:
And he would only be able to avail himself of the three-year statute of limitations if equitable tolling were to apply.

[00:24:43] Speaker 02:
And he can't avail himself of the two-year statute of limitations no matter what.

[00:24:47] Speaker 00:
Correct.

[00:24:47] Speaker 00:
No matter what.

[00:24:48] Speaker 00:
Right.

[00:24:49] Speaker 00:
Exactly.

[00:24:50] Speaker 00:
And just to, if I can just put a finer point on your question, Your Honor.

[00:24:55] Speaker 00:
So I'm not aware, you know, now that you've clarified your question, the equitable tolling cases that I think both sides have relied upon

[00:25:04] Speaker 00:
are kind of just in a general context of whether equitable tolling applies because I do not believe there is a case that specifically addresses equitable tolling in this particular situation.

[00:25:13] Speaker 00:
However, I am going to revise my statement a little bit to say I'm kind of cautious to say whether discretion is involved given what 29 USC 256 says.

[00:25:26] Speaker 00:
I mean, it provides pretty explicit guidelines in terms of when a statute of limitation

[00:25:33] Speaker 00:
you know, when it applies in this type of situation.

[00:25:38] Speaker 01:
I understand, but if we agree with you on wellfulness, we don't have to reach that question.

[00:25:43] Speaker 01:
Correct, Your Honor.

[00:25:45] Speaker 00:
Correct.

[00:25:46] Speaker 00:
If there are any other questions?

[00:25:49] Speaker 03:
No, thank you, Counsel.

[00:25:50] Speaker 00:
Thank you.

[00:26:01] Speaker 04:
So I briefly have a few points to just add on the willfulness issue, which took the lion's share of the time during my first remarks.

[00:26:10] Speaker 04:
I want to revise one part of the statements here about the previous panel getting it wrong.

[00:26:15] Speaker 04:
And so in that issue there,

[00:26:17] Speaker 04:
That case, the Hunt case, was decided on an individual basis.

[00:26:22] Speaker 04:
And it was decided upon a finding that 785-23, which was an agreement based upon Hunt looking at his paycheck and showing up to work the next day, that there was this agreement.

[00:26:32] Speaker 04:
He was not supposed to be paid overtime during a portion of the hotel stay.

[00:26:37] Speaker 04:
Those facts in that case differ from the facts in the instant case, because the county in that case defended that case saying that the 785

[00:26:46] Speaker 04:
agreement and that part of the CFR applies.

[00:26:49] Speaker 04:
Here they're saying there's an implied agreement that was made between the union and the county

[00:26:55] Speaker 04:
Prior to beginning, this is a dramatically different set of facts that we have here.

[00:26:59] Speaker 04:
And so based upon that, I would like to revise my statement saying that the previous panel got it wrong.

[00:27:03] Speaker 04:
I misspoke on that, and I apologize.

[00:27:05] Speaker 04:
Moving to the will from this issue again, the fact that they had to secure an agreement where the MOU sets the standard that we are to comply with the FLSA, and even when you secure an agreement that says we are going to exempt you from certain overtime at a certain time and place,

[00:27:24] Speaker 04:
That is a modification that is showing that we are deviating from the FLSA, which says if you're working, you've got to be paid.

[00:27:32] Speaker 04:
And they were exempting time.

[00:27:33] Speaker 04:
I understand the overlap and acknowledge the overlap of an MOU affecting the FLSA.

[00:27:39] Speaker 02:
But the whole question in this case is whether they were working.

[00:27:43] Speaker 02:
That's the issue.

[00:27:44] Speaker 04:
And to that point,

[00:27:46] Speaker 04:
That's not up on appeal right here, but there has evidence that has come out during discovery that they asked and in fact wanted our clients to be physically and mentally available at all times.

[00:27:58] Speaker 04:
They actually said that.

[00:27:59] Speaker 04:
It was cheaper shares.

[00:28:01] Speaker 04:
First time we actually had some evidence to show that they burdened them with that task while at the hotel.

[00:28:07] Speaker 04:
Burden goes into whether or not someone is working.

[00:28:10] Speaker 04:
It's a whole other use of issues that are not up for appeal at this stage right now.

[00:28:14] Speaker 04:
I think if the case gets kicked back, we'll be right back here talking about it again, but that's where the case stands right now as far as the appealable issues before this panel.

[00:28:23] Speaker 03:
All right.

[00:28:23] Speaker 03:
We thank counsel for their arguments.

[00:28:25] Speaker 03:
Thank you.

[00:28:25] Speaker 03:
The case just argued is submitted, and with that, we are in recess for 10 minutes.

[00:28:43] Speaker 02:
This court stands on recess for 10 minutes.