[00:00:00] Speaker 03:
Our first appeal is appeal number 15-5003, Jorge Del Penoponte versus United States.

[00:00:11] Speaker 03:
Do we have Mr. Marion here?

[00:00:14] Speaker 03:
Yes, ma'am.

[00:00:15] Speaker 03:
Okay, terrific.

[00:00:17] Speaker 03:
Whenever you're ready.

[00:00:24] Speaker 01:
Good morning, Your Honor.

[00:00:25] Speaker 03:
Yeah, please come up here so we can hear you.

[00:00:27] Speaker 03:
Thank you.

[00:00:31] Speaker 01:
I must admit that I was approaching this with some trepidation up until this morning.

[00:00:39] Speaker 01:
Either I am completely correct or completely incorrect.

[00:00:43] Speaker 01:
And I was reading the regulations as late as this morning.

[00:00:48] Speaker 01:
The issue before us is whether or not the one in the regular rate is included in the payroll or, as I proposed, it should be calculated in the same manner as the 1.5%.

[00:01:02] Speaker 01:
Now I present to you first of all two issues.

[00:01:05] Speaker 01:
The two primary cases relied upon by the United States are Brooks v. Weinberger and the Bay Ridge case.

[00:01:13] Speaker 01:
Bay Ridge is based upon footnote 34, which is non-binding precedent, which as on page 20 of the brief gives a calculation that the regular rate is based upon the amount that is already paid.

[00:01:30] Speaker 01:
The Brooks v. Weinberger case

[00:01:32] Speaker 01:
have some serious issues, and this is why I would like this court to revisit the Brooks v. Weinberger case.

[00:01:38] Speaker 01:
First of all, the Brooks v. Weinberger case, incorrectly, according to their calculation, calculates the regular rate.

[00:01:45] Speaker 01:
We've already agreed upon the regular rate.

[00:01:47] Speaker 01:
Brooks v. Weinberger offers a second and incorrect calculation of the regular rate.

[00:01:53] Speaker 01:
The second problem with Brooks v. Weinberger is that it deals with firefighters under the OPM

[00:02:01] Speaker 01:
Title 5 has no application to the folks to work with under Title 29.

[00:02:08] Speaker 03:
You're saying the Brooks case is about firefighters?

[00:02:14] Speaker 03:
It is Section 5.

[00:02:15] Speaker 03:
I seem to recall the Zummerling case is about firefighters, right?

[00:02:19] Speaker 03:
You are correct on that.

[00:02:21] Speaker 03:
You've been talking about Bay Ridge and Brooks, but did you mean to say

[00:02:26] Speaker 03:
Bay Ridge and Zummerling?

[00:02:28] Speaker 01:
Those are the two cases that you want to... I'm relying on page 20 of the appellee's brief in which they cite Brooks starting at page 19 and then go into Bay Ridge.

[00:02:43] Speaker 01:
This is the basis of the legal case.

[00:02:46] Speaker 01:
The problem I have with the analysis is this.

[00:02:51] Speaker 01:
If we look at the payroll, which I've outlined on my reply brief on page 10,

[00:02:56] Speaker 01:
We have pay codes.

[00:03:00] Speaker 01:
207 says, and I'll quote what the statute says, and we'll start with that, no employer shall pay a work week loan within 45 hours unless his employee receives above the specified rate and not less than one and a half times the rate at which he's employed.

[00:03:17] Speaker 01:
There's no comma.

[00:03:19] Speaker 01:
Under the United States analysis, the United States goes into the dichotomy of aggregate and marginal, which is confusing.

[00:03:26] Speaker 01:
It's confusing to me, has confused the courts, I believe, across the board.

[00:03:31] Speaker 01:
The problem here is secondary, is the United States alleges that we cannot use the hours over 40 of the calculation for the one and the one and a half, and then turns right around and calculates using

[00:03:47] Speaker 01:
the same amount of hours over 40 to get to .5.

[00:03:51] Speaker 01:
So they're using a marginal rate apparently on the one half, but prohibiting it on the one.

[00:03:56] Speaker 03:
I'm sorry, did you say they're using the marginal rate on the one half, on the 50% of the 150%?

[00:04:02] Speaker 01:
Apparently, because they're actually, if you look at the calculations, for example, on my page 10, the hours, the overtime hours that we agree upon are

[00:04:11] Speaker 01:
712 and 835, these are the precise numbers that are used in the formula.

[00:04:17] Speaker 01:
So they use the hours over 40 to calculate the .5, but then turn around and say that you cannot use the over 40 under this aggregate approach for the one.

[00:04:29] Speaker 01:
So there's a logic between the two.

[00:04:31] Speaker 03:
Let me see if I can understand your argument.

[00:04:35] Speaker 03:
Let me repeat what I think is the gist of the government's

[00:04:39] Speaker 03:
understanding of how to calculate the overtime pay, and then you'll tell me where they get it wrong.

[00:04:48] Speaker 03:
First, they assume they need to pay one and one half times for overtime.

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And as I understand it, they've deemed that they've already paid the one.

[00:05:01] Speaker 03:
Now you have to calculate the one half.

[00:05:03] Speaker 03:
And they calculate the one half by figuring out the regular rate.

[00:05:07] Speaker 03:
And then they multiply the regular rate

[00:05:10] Speaker 03:
by 0.5 and then multiply that to the number of actual overtime hours worked for a given week.

[00:05:19] Speaker 03:
And then they arrive at the one half.

[00:05:21] Speaker 03:
And then that is what the employee gets.

[00:05:26] Speaker 03:
Do you agree with that approach?

[00:05:28] Speaker 01:
I disagree on two points.

[00:05:30] Speaker 01:
First of all, you say deem.

[00:05:32] Speaker 01:
We'll get to that in a second.

[00:05:34] Speaker 01:
We'll get to the secondary part of that first approach, the second.

[00:05:42] Speaker 01:
The fundamental issue is that the multiplier is not used in the one.

[00:05:53] Speaker 01:
The multiplier, it is the 0.5 times the regular rate.

[00:05:58] Speaker 01:
And there is a multiplier under, this type now went to the deeming part.

[00:06:02] Speaker 01:
Under their analysis, this is an aggregate.

[00:06:04] Speaker 01:
This is a total of all that is paid.

[00:06:07] Speaker 01:
But if we look carefully at the overtime hours that should be paid, for example,

[00:06:12] Speaker 01:
on week one of 8.35 hours.

[00:06:18] Speaker 01:
I'm sorry, what page are you on right now?

[00:06:19] Speaker 01:
Page 10 of my reply brief.

[00:06:20] Speaker 01:
This is taken out of Mr. Rosario's book, but this is an example.

[00:06:29] Speaker 01:
Under the United States analysis, they've paid the regular rate for these hours for the first 40.

[00:06:37] Speaker 01:
They, number one, put the over 40 hours into a bucket.

[00:06:42] Speaker 01:
and pro-rate all of the overtime under 40 and over 40.

[00:06:45] Speaker 01:
The statute says that you must multiply the regular rate times 1.5.

[00:06:50] Speaker 01:
They are alleging that you put it all into a bucket and because it's pro-rated across the hours, we all of a sudden have the regular rate.

[00:06:58] Speaker 01:
The regular rate is derived from the total divided by the hours, but then the statute requires that you pay the one using the regular rate.

[00:07:09] Speaker 00:
Do you agree that the one half and the one and a half is properly calculated?

[00:07:15] Speaker 01:
I agree that the one half is calculated, which brings me to a secondary portion.

[00:07:20] Speaker 01:
If we look into 29 CFR 778, 110, 11, 12, 13, 17, and 18, the Department of Labor has gone into excruciating detail to segregate, for example, specialty tasks, day workers, hourly rates,

[00:07:38] Speaker 01:
U.S.

[00:07:40] Speaker 01:
workers are not hourly rate workers.

[00:07:43] Speaker 01:
They deal well, and I checked it this morning, says for day workers, it's 0.5 times the regular rate, so not 1.5, not standard 0.5.

[00:07:53] Speaker 01:
And in each of these categories, they actually break down from what should be a regular full-time employee to lesser status employees, day workers, especially task workers, commission workers, office rate.

[00:08:05] Speaker 01:
Each one of these has a different rate, standard plus half.

[00:08:08] Speaker 01:
One half only.

[00:08:10] Speaker 01:
Only the full-time salaried employees are 1.5.

[00:08:14] Speaker 01:
If their analysis is true, what happens to the one percent or the one times under those scenarios?

[00:08:20] Speaker 01:
Is it magically reduced or deducted?

[00:08:22] Speaker 01:
The DOL says 0.5, four-day workers.

[00:08:26] Speaker 01:
What happens to the one?

[00:08:28] Speaker 01:
If the one is paid as a matter of course,

[00:08:33] Speaker 01:
What happens to that for day workers?

[00:08:36] Speaker 01:
Why did the DOL not say 1.5?

[00:08:37] Speaker 00:
I understand the government's brief.

[00:08:41] Speaker 00:
They try to explain this at pages like 28 through 30.

[00:08:44] Speaker 00:
They walk through how it is that the one is calculated and it's broken into different parts.

[00:08:51] Speaker 00:
And if you could, could you identify for me exactly which steps you take issue with or where you see them departing from what you expect them to have done?

[00:09:01] Speaker 00:
in their calculations at page 28 through 30?

[00:09:05] Speaker 01:
The fundamental issue is that their calculations, this is a good point, because we've had issues on how they actually arrive.

[00:09:13] Speaker 01:
And this goes into a genuine issue of material fact.

[00:09:16] Speaker 01:
How do they actually arrive at these hours?

[00:09:19] Speaker 01:
Where are they actually located?

[00:09:20] Speaker 01:
And don't forget, this is on summary judgment.

[00:09:23] Speaker 01:
This didn't get a trial.

[00:09:24] Speaker 01:
So we're dealing with a secondary issue, which is not really addressed in the brief.

[00:09:28] Speaker 01:
The problem is,

[00:09:31] Speaker 01:
Almost magically, the overtime hours that are listed in pay code 53, in these two instances, there's an additional 54 and 55, each of these are almost identical to the FLSA overtime.

[00:09:44] Speaker 01:
What they're doing is they apparently are cross paths.

[00:09:49] Speaker 01:
We don't know if this is where they segregate the FLSA overtime or how they do it, but what they do is they take the one-third reduction, but they don't add back in.

[00:09:58] Speaker 01:
They simply add all of the holiday pay, all of the weekend hours, and say, this is your one rate.

[00:10:05] Speaker 01:
This can't stand under the logical analysis.

[00:10:09] Speaker 01:
If we read all the statutes, if we read the case law, there's been a fundamental misinterpretation deriving from that one footnote in Bay Ridge, which is not authoritative.

[00:10:21] Speaker 01:
And Brooks v. Weinberger categorically, I believe, misapplied this.

[00:10:24] Speaker 01:
This has not really been litigated, hasn't been touched upon.

[00:10:27] Speaker 01:
We've touched upon firefighters, day workers, and other statutory, but this fundamental issue has never been really scrutinized.

[00:10:34] Speaker 01:
I would challenge this court to read with a strategic eye, Brooks v. Weinberger, and ask yourself, how is it that the one, if you read the statute carefully, how is the one paid?

[00:10:47] Speaker 01:
We have an aggregate amount of the first part of it.

[00:10:50] Speaker 01:
We have an aggregate total, which is across all 45 plus or 40 under.

[00:10:56] Speaker 01:
But the multiplier, there's two steps.

[00:10:59] Speaker 01:
We must identify the regular rate.

[00:11:02] Speaker 01:
The statute requires that.

[00:11:04] Speaker 01:
And then we must multiply those hours by the regular rate.

[00:11:08] Speaker 01:
There's a lot of misunderstanding and confusion on aggregate versus the marginal approach.

[00:11:14] Speaker 01:
I would suggest that we put that aside.

[00:11:17] Speaker 00:
But you agree it's appropriate to use the aggregate approach under Bay Bridge, right?

[00:11:22] Speaker 01:
I believe it.

[00:11:22] Speaker 01:
I would believe this is a misinterpretation.

[00:11:24] Speaker 01:
I believe it's a misinterpretation because I believe there's been a fundamental misunderstanding, a misreading of the application was due.

[00:11:31] Speaker 01:
This goes back to Bay Ridge.

[00:11:32] Speaker 01:
Look at the footnote.

[00:11:33] Speaker 01:
Look at the case law.

[00:11:35] Speaker 01:
I think that even the OPM and even the Department of Labor, and I've put in two of my footnotes, use a 1.5 multiplier.

[00:11:43] Speaker 01:
They take the actual hours over 40 and use it, and I can, if you want to

[00:11:48] Speaker 01:
I don't know if I can put it into the record, but it's actually two or three times up into my footnotes.

[00:11:52] Speaker 01:
We read the 1.5 multiplier on two websites where they actually placed that.

[00:11:57] Speaker 03:
Mr. Marin, you're into your rebuttal.

[00:11:58] Speaker 03:
Do you want to reserve the remainder of your rebuttal?

[00:12:00] Speaker 01:
I do.

[00:12:00] Speaker 03:
I do.

[00:12:01] Speaker 03:
Thank you.

[00:12:01] Speaker 03:
Okay.

[00:12:01] Speaker 03:
Very good.

[00:12:01] Speaker 03:
Let's hear from the government.

[00:12:06] Speaker 03:
Mr. Oliver?

[00:12:08] Speaker 02:
May it flee to the court.

[00:12:09] Speaker 02:
The trial court correctly held that postal service

[00:12:15] Speaker 02:
complied with the Fair Labor Standards Act and paid overtime in accordance with that act.

[00:12:19] Speaker 02:
But not only did it comply with the act, but it paid more than was required by the FLSA.

[00:12:24] Speaker 03:
So the standard is that postal service is required to pay one and one half times of the regular rate for overtime hours of work.

[00:12:34] Speaker 02:
That's correct.

[00:12:34] Speaker 03:
That's correct, Your Honor.

[00:12:36] Speaker 03:
So one theme from Mr. Marion is that that didn't happen here and that for the overtime hours work,

[00:12:44] Speaker 03:
the initial one of the one and a half was not paid out at the regular rate and it ought to be.

[00:12:51] Speaker 03:
And so for that reason alone, there's a flaw here because we need to go back in time and figure out how was the initial one of the one and a half paid.

[00:13:03] Speaker 02:
That's incorrect.

[00:13:04] Speaker 02:
Appellants concede on page 30 of their brief as well as at oral argument today that

[00:13:09] Speaker 02:
the government correctly calculate the regular rate.

[00:13:12] Speaker 02:
So we have to understand what the regular rate is.

[00:13:14] Speaker 02:
The regular rate by statute is all of the payments that are made to the employee minus overtime premium divided by the total amount of hours.

[00:13:23] Speaker 02:
And so what it is, it's an average.

[00:13:24] Speaker 02:
And so the payroll establishes that all of the various components of the regular rate were in fact paid.

[00:13:31] Speaker 02:
What are those components?

[00:13:32] Speaker 02:
They are, for instance, the base pay for all of the hours.

[00:13:36] Speaker 02:
Non-overtime and overtime, it's any differential premium,

[00:13:39] Speaker 02:
It's the territorial cost of living adjustment.

[00:13:42] Speaker 02:
All of those components were paid for all the hours, but specifically what's important is they were paid for the overtime hours, which means that the regular rate, before you even get to the calculation of overtime premium, the regular rate has been paid here because all of those components were paid.

[00:13:59] Speaker 02:
And so one time the regular rate has been paid, so what you then must do is calculate what half of the regular rate is times the overtime hours.

[00:14:07] Speaker 02:
And since he doesn't, the accountants do not

[00:14:09] Speaker 02:
dispute that we calculate the regular rate correctly, that necessarily means that the numerator in that formula, which is all of the components of the regular rate calculation, were correctly calculated.

[00:14:22] Speaker 02:
For instance, on page 32 of our brief, we have a table which we lay out the various components of the regular rate calculation.

[00:14:31] Speaker 02:
Code 52 is the base pay.

[00:14:33] Speaker 02:
That was paid for all hours.

[00:14:35] Speaker 02:
That correlates with what's in the

[00:14:38] Speaker 02:
Code 53 is the postal overtime, so for regular rate purposes, only the base portion of that goes into the regular rate.

[00:14:47] Speaker 02:
But that was paid.

[00:14:47] Speaker 02:
54 is a night differential.

[00:14:51] Speaker 02:
All $76 of that were paid.

[00:14:52] Speaker 02:
These are all directly correlated to the pay stub, because I don't understand appellants to be disputing that they were paid.

[00:14:58] Speaker 02:
Since they were paid, that means therefore that the one portion of the regular rate has been paid before you even get to the overtime premium.

[00:15:07] Speaker 02:
Appellants mentioned Bay Ridge and questioned, it's unclear to me to agree with their question whether or not the aggregate approach which falls from Supreme Court's decision is appropriate, but it's been, not only was it in the footnote in Bay Ridge where the Supreme Court found that that approach was reasonable, but in fact, all of the court challenges that have been made have sustained the aggregate approach, and it's entirely consistent with

[00:15:36] Speaker 02:
the Fair Labor Standard Tech.

[00:15:38] Speaker 02:
One, because the regular rate is an average.

[00:15:39] Speaker 02:
Second, because the alternative, which is the marginal approach, which would have you look at the hours that are to be multiplied by the overtime rate, and you assume that those overtime hours are the hours for which you must multiply the overtime rate.

[00:15:55] Speaker 02:
That approach does not match up with the FLSA, because under the FLSA, if you look at 29 USC,

[00:16:04] Speaker 02:
207 E5 and E6, this deals with non-overtime and overtime premium.

[00:16:10] Speaker 02:
Non-overtime premium is included in the regular rate regardless of when it was earned.

[00:16:15] Speaker 02:
One.

[00:16:15] Speaker 02:
Second, overtime premium, which is excluded from the regular rate and is credible in contract overtime premium is credible against FLSA.

[00:16:23] Speaker 02:
That may be excluded and be credible regardless of when that overtime was earned, whether or not it was during the first 40,

[00:16:31] Speaker 02:
for whether or not it was earned after the 40-hour mark, which tells you that for purposes of the FLSA, the aggregate approach is the correct approach, and it's certainly a reasonable interpretation of the FLSA's requirement.

[00:16:43] Speaker 02:
Now, in appellant's brief, their chief issue with our calculations, although I didn't hear it articulated today, their chief issue with our calculations is that they assume that the postal service is only calculating overtime with respect to the base rate

[00:16:59] Speaker 02:
times overtime hours, they concede we get the half times the regular rate correct, but they assume that we're not paying the full one.

[00:17:06] Speaker 02:
Well, I guess that is somewhat consistent with the argument, but he didn't mention the base rate.

[00:17:09] Speaker 02:
Well, again, his concession, the appellant's concession, that we have calculated the regular rate correctly defeats that argument, because the regular rate is not just the base rate, it's the base rate for all hours plus all the premium and any additional premium.

[00:17:23] Speaker 02:
So therefore, the regular rate necessarily is more than just the base.

[00:17:27] Speaker 02:
And so that defeats their argument.

[00:17:28] Speaker 02:
And another thing, and I think this perhaps is where appellants are getting that confusion as to, well, you're only paying the base rate.

[00:17:34] Speaker 02:
They, in their brief, continuously confuse postal overtime and FLSA overtime.

[00:17:40] Speaker 02:
Completely different concepts, because postal overtime, according to the Postal Services Manual, is, yes, you can get overtime for postal service if you're over 40, but also if you have any particular day over eight hours, which is not the case with FLSA.

[00:17:57] Speaker 02:
For postal service overtime, that's one and a half times the base rate, as opposed to FLSA, which one and a half times the regular rate.

[00:18:03] Speaker 02:
And again, that's where their confusion is.

[00:18:05] Speaker 02:
You conflict it to, and they assume that, oh, well, postal service time is, if that's the same as FLSA and postal service is one and a half times the base, that therefore means we're only paying at the base.

[00:18:14] Speaker 02:
That's incorrect.

[00:18:15] Speaker 02:
One, because these are two different concepts for the reasons I just mentioned.

[00:18:18] Speaker 00:
Is that why you have line 52 in the pay stub?

[00:18:22] Speaker 00:
Would that be the reason why?

[00:18:23] Speaker 00:
Why it's base pay times one is because you've got this difference with the postal pay versus the LFK.

[00:18:29] Speaker 02:
That's exactly right, Your Honor.

[00:18:30] Speaker 02:
52 is the base, and so that's paid for all of the hours, not just the 40, but for the overtime as well, as reflected in our table and reflected in the pay stubs.

[00:18:39] Speaker 02:
And so once you understand that postal overtime and FSA are completely different concepts, you can't commingle them and assume that they're one and the same.

[00:18:48] Speaker 02:
That leads to a large degree of their errors in their brief.

[00:18:52] Speaker 02:
In addition,

[00:18:53] Speaker 02:
And this is another error that they make in their brief.

[00:18:55] Speaker 02:
And actually, they can see that their math is wrong in the opening brief.

[00:19:00] Speaker 02:
In their reply brief, they acknowledge their opening brief calculations are wrong.

[00:19:02] Speaker 02:
So focusing on the reply brief, the chief error in their reply brief is that, again, they don't give the Postal Service credit for having already paid one times the regular rate.

[00:19:13] Speaker 02:
So when they're trying to calculate the net premium, the premium at the end of the day that's going to appear on the pay stubs, they multiply the overtime hours times

[00:19:22] Speaker 02:
One and a half.

[00:19:24] Speaker 02:
Well, that's incorrect because one, it doesn't acknowledge that we've already paid all of the various components of regular rate before you get to overtime.

[00:19:32] Speaker 02:
So in effect, what they're doing is, or they won't acknowledge this, but the effect of their theory is that it will require the Postal Service to pay two and a half times the regular rate.

[00:19:41] Speaker 02:
And that's something that various plaintiffs over the years have done in various, and I've cited for these briefs where the court also said no.

[00:19:47] Speaker 02:
Your theory, when you don't give us the agency credit for having paid the regular rate, results in two and a half times

[00:19:52] Speaker 02:
the regular rate.

[00:19:53] Speaker 02:
And that, at the end of the day, the error that the opponents make in their reply brick, which I believe is the calculations that they're standing by today.

[00:20:05] Speaker 02:
Unless there are any further questions, we ask that you affirm the decision by the trial court.

[00:20:11] Speaker 02:
Okay, thank you.

[00:20:15] Speaker 01:
Mr. Marion, you still have four minutes.

[00:20:18] Speaker 01:
Let's just predict.

[00:20:19] Speaker 01:
These are the very arguments that I was anticipating.

[00:20:21] Speaker 01:
First of all, we're not asking for 2.5 times the rate.

[00:20:24] Speaker 01:
We're asking for the difference between what is paid and 1.5.

[00:20:28] Speaker 01:
It's our position that the one has not been paid.

[00:20:30] Speaker 01:
It's one times.

[00:20:31] Speaker 01:
The United States just mentioned one times.

[00:20:34] Speaker 01:
The multiplier is there.

[00:20:36] Speaker 00:
How do you respond to the position that the various components of the FLSA have already been paid?

[00:20:42] Speaker 01:
They've been, it's not the components of the FLSA.

[00:20:45] Speaker 01:
These are premium payments.

[00:20:46] Speaker 01:
We're talking about the hours over 40.

[00:20:48] Speaker 01:
And I'm reading strictly from the statute.

[00:20:50] Speaker 01:
It requires 1.5 times the regular rate.

[00:20:54] Speaker 01:
These have been put into a pot.

[00:20:55] Speaker 01:
They've been prorated over 40, under and 40 plus hours.

[00:20:59] Speaker 03:
But at no point was... Well, you can't say that Mr. Marion hasn't been paid anything yet for those

[00:21:09] Speaker 03:
additional overtime hours, right?

[00:21:12] Speaker 03:
You've got various components of money attributed to those additional hours of work.

[00:21:20] Speaker 01:
Exactly.

[00:21:20] Speaker 01:
However, again, there's a two-part analysis I think has been fundamentally missing.

[00:21:26] Speaker 01:
The regular rate is the multiplier.

[00:21:29] Speaker 01:
The hours must, after the regular rate is calculated and the deductions and exemptions are applied, the regular rate must be applied to the 1.5.

[00:21:39] Speaker 03:
In addition to what's already been paid?

[00:21:42] Speaker 01:
No, not in addition to it.

[00:21:43] Speaker 01:
There should be some offset.

[00:21:45] Speaker 01:
There should be some offset.

[00:21:46] Speaker 01:
But the way that this is structured, there's no way to determine what is the offset.

[00:21:52] Speaker 01:
I take issue with, first of all, that all cases have fallen down this way.

[00:21:57] Speaker 01:
I point out to the Ag One Massachusetts case, as is an example, where 1.5 was upheld.

[00:22:03] Speaker 01:
But fundamentally, one more point as a quick aside.

[00:22:09] Speaker 01:
I'll point out to 778.203.

[00:22:13] Speaker 01:
Holiday pay in one of the fundamental errors in one of the lower cases, I think it was Brooks, arrived at the aggregate approach.

[00:22:22] Speaker 01:
And I'm simply asking this court to take a new look at aggregate versus, because it's not set in stone, it's never been set in stone.

[00:22:27] Speaker 01:
Even the DOL and the United States has admitted confusion, it's not set in stone.

[00:22:32] Speaker 01:
If you look at 778.203, the premium payments for overtime payments under 150%

[00:22:39] Speaker 01:
are not applied or applicable to the FLSA.

[00:22:41] Speaker 01:
Therefore, the analysis that's used on page 20 of the United States brief, which is based upon Brooks, has a faulty fundamental error because it mixes apples and oranges.

[00:22:56] Speaker 01:
It uses exemptions with FLSA, which shouldn't be.

[00:22:59] Speaker 01:
If it's under 150, it has no bearing.

[00:23:02] Speaker 01:
They should be paid on top of that.

[00:23:03] Speaker 01:
You can't mix it too.

[00:23:03] Speaker 01:
That's the very basis of the aggregate approach.

[00:23:06] Speaker 01:
And finally, we don't confuse postal overtime with the FLSI overtime.

[00:23:11] Speaker 01:
We've never confused the two.

[00:23:13] Speaker 01:
It's just that in this example, it just so happens that the two are the same.

[00:23:19] Speaker 01:
Eight hour overtime is exempt.

[00:23:22] Speaker 01:
You can reduce one third from the FLSI overtime.

[00:23:24] Speaker 01:
But the fundamental issue is that this, and this court will have the great opportunity to revisit this.

[00:23:30] Speaker 01:
This is not set in stone the marginal, the aggregate, or possibly a third approach.

[00:23:34] Speaker 01:
And I challenge this court to take a very, I've been over this law back and forth, and it's nowhere as clear set as the United States would have you present, because each of the cases that they presented deal with the specific section, the specific regulations of the different types of employment.

[00:23:50] Speaker 01:
The only way this makes sense is under our approach.

[00:23:53] Speaker 01:
If you cannot reconcile, if the Department of Labor says 0.5 from one section, a standard 0.5 for another type of employee, and for full-time employees, 1.5,

[00:24:04] Speaker 01:
How do you reconcile anything before the .5?

[00:24:09] Speaker 01:
If their analysis is correct, does that one magically disappear?

[00:24:12] Speaker 01:
Does that make sense?

[00:24:13] Speaker 01:
If part-time employees shall, by statute, by the regulation, be only paid .5, but full-time employees are 1.5, under their analysis, if the one is already paid, why did the Department of Labor go into all this rigmarole to isolate the .5 from the one?

[00:24:34] Speaker 03:
Thank you very much.

[00:24:34] Speaker 03:
We have your argument and the case is submitted.