[00:00:00] Speaker 03:
The next argued case is number 221140, Bridges Against the United States.

[00:00:07] Speaker 03:
Mr. Ricksecker.

[00:00:12] Speaker 01:
Thank you, Your Honors.

[00:00:13] Speaker 01:
Good morning.

[00:00:13] Speaker 01:
May it please the Court, my name is David Ricksecker, and I'm here on behalf of 42 correctional officer appellants in this matter.

[00:00:25] Speaker 01:
These 42 appellants are FLSA non-exempt correctional officers at a prison called FCI Mylan in Michigan.

[00:00:35] Speaker 01:
At FCI Mylan, the agency sets a schedule for coverage of shifts at local hospitals.

[00:00:43] Speaker 02:
I think we all know exactly what's going on here.

[00:00:46] Speaker 01:
So I'll go straight to some of this.

[00:00:49] Speaker 01:
They're not paid for this time between their regular shift and the overtime assignment at the hospital.

[00:00:57] Speaker 02:
This case is very tedious, just because I've never seen a case where there's so many different regulations coming out of everywhere and trying to put them together.

[00:01:06] Speaker 02:
Can you tell us what rule you would like us to adopt?

[00:01:10] Speaker 01:
Yes.

[00:01:11] Speaker 01:
So what I would suggest you first do is you look at the opium regulation.

[00:01:17] Speaker 01:
And the OPM regulations, I would say, pardon me one moment.

[00:01:24] Speaker 01:
First, you have to look at the definition of a principal activity.

[00:01:29] Speaker 01:
And I will summarize it, but it's activities that they are employed to perform as a principal activity.

[00:01:34] Speaker 01:
And those include activities they do during their regular shift, the regularly scheduled administrative work week, and occasions of periods of irregular or occasional overtime work.

[00:01:47] Speaker 01:
That's 5 CFR 550.112.

[00:01:53] Speaker 01:
And then you look at 5 CFR 551.411, which defines the work day as the period between the commencement of principal activities that an employee is engaged to perform on a given day and the cessation of the principal activities for that day.

[00:02:11] Speaker 01:
All time spent by an employee in performance of such activities is hours of work.

[00:02:17] Speaker 01:
Hours of work are, of course, compensable under Title V as well as the FLSA.

[00:02:23] Speaker 02:
I appreciate this, but you're giving me more than I wanted.

[00:02:27] Speaker 02:
I just want to know, what do you take away as being the rule from all of these six sets of regulations that we've got on the table here?

[00:02:37] Speaker 02:
We know the circumstances in your case.

[00:02:39] Speaker 02:
and you want money for your clients.

[00:02:41] Speaker 02:
But what is the rule that would allow them to have money?

[00:02:45] Speaker 02:
That in circumstances where this is voluntary over time, not involuntary over time, right?

[00:02:53] Speaker 01:
That is a distinction without a difference in the regulations, Your Honor.

[00:02:57] Speaker 02:
OK.

[00:02:57] Speaker 02:
So go with me.

[00:02:59] Speaker 02:
OK.

[00:02:59] Speaker 02:
OK.

[00:03:00] Speaker 02:
I'm trying to get you to tell me what the rule is.

[00:03:03] Speaker 02:
In circumstances where there is a voluntary over time

[00:03:07] Speaker 02:
in this circumstance, where there's an hour between the end of one shift and the start of the other, and there's some required travel within that hour than your clients?

[00:03:20] Speaker 02:
I just want to see the limits of what you're asking us, because the potential here is overwhelming.

[00:03:25] Speaker 01:
Yes, I understand that.

[00:03:26] Speaker 02:
In terms of what it's going to cost the government and the taxpayers, depending on whatever rule we would see fit to adopt.

[00:03:34] Speaker 02:
So tell us the limits of the rule.

[00:03:36] Speaker 02:
What are the limiting principles?

[00:03:37] Speaker 01:
OK.

[00:03:38] Speaker 01:
Well, first of all, let me just point out a couple of things.

[00:03:42] Speaker 01:
In this situation, there is no dispute that this exact same travel between work sites would be compensable if it came during a regular shift or during the overtime shift.

[00:03:54] Speaker 01:
If they were asked to travel to another work site.

[00:03:56] Speaker 02:
But from the regularly scheduled shift.

[00:03:58] Speaker 01:
Right.

[00:03:59] Speaker 01:
Or in the overtime assignment.

[00:04:01] Speaker 01:
OK.

[00:04:03] Speaker 01:
There is no dispute.

[00:04:04] Speaker 01:
that the government pays these employees for the exact same work during the exact same gap in time if they are driving a government vehicle or if the overtime is mandatory.

[00:04:17] Speaker 01:
Okay, although there is no distinction in the regulations between the type of vehicle and individual drives or whether an overtime assignment is voluntary or mandatory.

[00:04:27] Speaker 01:
And I'll make one other point on the... So what if there was a six-hour gap?

[00:04:32] Speaker 02:
What if there was a three-hour gap?

[00:04:34] Speaker 01:
Yes.

[00:04:34] Speaker 02:
Between the end of the regularly scheduled shift and the beginning of the voluntary overtime shift?

[00:04:41] Speaker 02:
Still, you'd say they still entitled to overtime?

[00:04:44] Speaker 01:
Absolutely not your honor.

[00:04:45] Speaker 02:
Okay, so what's the limiting principle of the time between so the time between the shifts has some Importance in your view.

[00:04:53] Speaker 02:
What is what is how do we know?

[00:04:55] Speaker 02:
What's the time it does?

[00:04:57] Speaker 01:
Well, okay, so it is not There is no hard and fast rule of what amount of time would not be compensable It depends on the factual circumstances and I'll give an example that was about three hours.

[00:05:10] Speaker ?:
I

[00:05:11] Speaker 01:
Three hours, if it was a three hour break here, I would not seek payment for that time.

[00:05:17] Speaker 02:
What's the difference between, but you're seeking payment for one hour.

[00:05:21] Speaker 01:
Right.

[00:05:21] Speaker 02:
What is the difference between one hour and three hours?

[00:05:25] Speaker 02:
Other than two hours, I know that's the difference.

[00:05:27] Speaker 01:
Correct, you're right.

[00:05:29] Speaker 01:
That's exactly right, but the difference is that

[00:05:35] Speaker 01:
When the amount of time here, and I will note that in situations here, the time that was between the shifts was 25 minutes.

[00:05:44] Speaker 01:
For some, it's 25 minutes.

[00:05:45] Speaker 01:
For some, it's 30 minutes.

[00:05:46] Speaker 01:
And for some, it's an hour.

[00:05:48] Speaker 01:
So there is a range.

[00:05:49] Speaker 01:
But here, the difference between one hour and three hours is, one, the amount of control that the agency has over these individuals.

[00:05:59] Speaker 01:
Here, the agency sets the schedule.

[00:06:03] Speaker 01:
They assign the overtime.

[00:06:05] Speaker 01:
They create this gap of time.

[00:06:07] Speaker 01:
They control that amount of time.

[00:06:09] Speaker 01:
They offer the overtime assignment.

[00:06:12] Speaker 01:
The employee accepts it.

[00:06:14] Speaker 01:
Once they accept it, they are required to work it.

[00:06:16] Speaker 01:
They can't then not show up.

[00:06:18] Speaker 01:
I mean, of course, if they get stationed.

[00:06:21] Speaker 01:
But that time is under control of the agency because the agency knows that they have to spend that time

[00:06:28] Speaker 01:
we're getting relieved on their post exiting out of the press at the time three hours if i may have two hours let's go to two hours sure in that amount of time an individual would have uh... uh... there's cases cited and there's uh... the apartment of labor regulations on this but you look at it and see if they are able to enjoy

[00:06:53] Speaker 01:
purely personal pursuits, OK?

[00:06:56] Speaker 01:
And here, we would argue that they would have time to do things personally.

[00:07:02] Speaker 01:
During that hour, they're in the two-hour period of time, depending on where they live, of course.

[00:07:07] Speaker 01:
They may have time to go home.

[00:07:09] Speaker 01:
They may have time to relax.

[00:07:11] Speaker 01:
They may have time to go to the gym.

[00:07:12] Speaker 02:
So that's the legal standard.

[00:07:14] Speaker 02:
So it's not one hour or two hours.

[00:07:17] Speaker 02:
We have to adjudicate whether or not that is enough time to pursue

[00:07:21] Speaker 02:
So right here, the prison and the hospital were around the corner from each other.

[00:07:27] Speaker 02:
So we're left with the hour they had here, but they're around the corner.

[00:07:32] Speaker 02:
So conceivably, they could have gone and got a cup of coffee and made phone calls and done whatever during that period of time.

[00:07:38] Speaker 02:
How does that work?

[00:07:40] Speaker 02:
So are we talking about time plus distance?

[00:07:45] Speaker 02:
Is that a factor?

[00:07:46] Speaker 01:
I'm just trying to figure it out.

[00:07:47] Speaker 01:
No, sure.

[00:07:48] Speaker 01:
I think if the prison was around the corner,

[00:07:51] Speaker 01:
I think here, if there was a gap of an hour, I believe that they would still be entitled to compensation because they really don't have... Counsel, I thought you were making a quite different argument than your briefs.

[00:08:11] Speaker 03:
I thought your position was

[00:08:14] Speaker 03:
What's the difference whether they work the second shift as a volunteer or mandatory?

[00:08:21] Speaker 03:
They should be treated the same way, whether it's one hour or three hours or whatever.

[00:08:26] Speaker 03:
They should be treated the same way, not what they do in the intervening time.

[00:08:32] Speaker 03:
Is that not your argument?

[00:08:34] Speaker 01:
No, that is not my argument.

[00:08:36] Speaker 01:
And our argument is that's partially correct, that we do not believe there is any difference whether you are assigned to work by taking volunteers and accepting it.

[00:08:49] Speaker 01:
Or if you're ordered to do it, there's no other option.

[00:08:51] Speaker 01:
You have to go do it.

[00:08:52] Speaker 03:
But you're not taking that position?

[00:08:54] Speaker 03:
That's not your argument?

[00:08:54] Speaker 01:
There's no difference between, in our position, whether or not the overtime is mandatory or accepted on a voluntary basis.

[00:09:02] Speaker 03:
Then it is your argument.

[00:09:03] Speaker 03:
I want to be clear what your argument is.

[00:09:06] Speaker 03:
Our argument is that they should be treated the same way and that ends it.

[00:09:10] Speaker 01:
That is, they should be treated the same way.

[00:09:14] Speaker 01:
Because once the overtime is assigned, they're required to work it and then they are required to leave the prison and get to that overtime assignment within 25 minutes or an hour depending on the end of their schedule.

[00:09:27] Speaker 04:
Why isn't this time post-liminary activity

[00:09:32] Speaker 04:
with respect to the principal activity, and therefore excluded under 551.412b.

[00:09:39] Speaker 01:
So Your Honor, there's several reasons for that.

[00:09:45] Speaker 01:
And first of all, 551.412b

[00:09:54] Speaker 01:
It only applies to post-liminary or pre-liminary time.

[00:09:58] Speaker 01:
And here, this is not that, because it goes from the time the first principal activity takes place that starts the workday to the cessation of those principal activities at the end of the workday in the regulations that I cited at the initial part of this argument.

[00:10:16] Speaker 01:
So everything in between the principal activities is compensable.

[00:10:20] Speaker 01:
This is part of the work day.

[00:10:23] Speaker 01:
Not only that, but under the travel regulations, this travel is hours of work.

[00:10:27] Speaker 01:
And hours of work must be compensated.

[00:10:30] Speaker 01:
So if it's hours of work, it can't be a preliminary or a post-liminary activity, because it's the actual hours of work.

[00:10:38] Speaker 01:
That's the work.

[00:10:39] Speaker 04:
But you're considering that the second voluntary assignment is a principal activity of the day.

[00:10:47] Speaker 01:
I'm sorry?

[00:10:48] Speaker 04:
You are considering that the second

[00:10:50] Speaker 04:
voluntary assignment is a principal activity of the day.

[00:10:55] Speaker 01:
Absolutely, Your Honor.

[00:10:56] Speaker 01:
The regulations are clear on that matter, that principal activities include irregular or occasional overtime.

[00:11:02] Speaker 01:
It's no different than if someone was working in the prison and their relief doesn't show up for whatever reason.

[00:11:10] Speaker 01:
Car, trouble, sick.

[00:11:12] Speaker 01:
And if they're required to stay on, they're still performing their principal activities.

[00:11:17] Speaker 01:
They're still entitled to compensation

[00:11:19] Speaker 01:
just because it goes over their regular shift.

[00:11:21] Speaker 01:
This is really no different.

[00:11:23] Speaker 01:
This time is under the control of the agency.

[00:11:26] Speaker 01:
The agency could have set up a system where they didn't allow officers to do this.

[00:11:31] Speaker 01:
They didn't allow officers to go from the one work site to the other work site within this time period.

[00:11:37] Speaker 01:
They could have had the schedules be exactly the same, where it would be impossible for an officer to do that.

[00:11:44] Speaker 01:
And then they would just get overtime volunteers from people that are off that day.

[00:11:48] Speaker 02:
Or they could have done it three hours later.

[00:11:51] Speaker 01:
Or they could have done it three hours later, but they didn't.

[00:11:54] Speaker 02:
No big deed goes unpunished.

[00:11:58] Speaker 02:
I'm sorry.

[00:11:59] Speaker 02:
OK, so it's the amount of control

[00:12:03] Speaker 01:
The amount of control here, and it is, I mean, you can't ignore the amount of time.

[00:12:09] Speaker 01:
So in your example of three hours, I do have a case where the individuals have to travel like 120 miles.

[00:12:17] Speaker 01:
I can't remember, but it's like 90 minutes to get to the hospital.

[00:12:21] Speaker 01:
This prison is located in a more rural region.

[00:12:26] Speaker 01:
In those situations,

[00:12:28] Speaker 01:
You know, they apply an hour and a half to get from the prison to the hospital.

[00:12:34] Speaker 01:
So the amount of time in this, it does matter.

[00:12:38] Speaker 01:
It's kind of a fact-specific basis.

[00:12:40] Speaker 01:
I believe I cited that.

[00:12:41] Speaker 02:
Well, it's not just the amount of time, though.

[00:12:43] Speaker 02:
I don't know that you finished answering the question I had, was what if it was around the corner?

[00:12:49] Speaker 02:
So we're talking about an hour, about built-in time that they might have in their control to do other things.

[00:12:56] Speaker 02:
And I didn't know what your answer to that was.

[00:12:58] Speaker 01:
Right, so there, that is a closer call.

[00:13:06] Speaker 01:
If they were given an hour and they only had to go around the corner, I would argue that they would still have to get out of the prison, they would have to be relieved, they would have to go to the second prison.

[00:13:20] Speaker 01:
It seems like that would be something they could probably do within 20 or 30 minutes.

[00:13:24] Speaker 01:
It's similar to if they were working within the prison and working an overtime shift and had to go from, let's just say, housing unit A to housing unit D. They're paid for that time to get there.

[00:13:37] Speaker 01:
And here, this should be paid too.

[00:13:38] Speaker 01:
I think when the amount of time is so small that the individual can't use it for any other purpose than to either work or be engaged to wait to work.

[00:13:50] Speaker 01:
That is the crux here.

[00:13:53] Speaker 01:
It's really no different than times of inactivity if you're working in a factory and the factory line goes down for 20 minutes or an hour and you're not working.

[00:14:02] Speaker 01:
You're still paid for that time because you're engaged to wait.

[00:14:05] Speaker 01:
For a small amount of time to get to a prison next door, if you're given 30 minutes or an hour or something like that to get there, that is not enough time for them to do anything else but be engaged to wait and to go to work under the control of the agency.

[00:14:20] Speaker 01:
However, if they have more time, again, it's a fact-specific analysis, the three hours to go around the corner would be ample.

[00:14:30] Speaker 01:
And they shouldn't seek compensation for that entire time.

[00:14:33] Speaker 01:
Similarly here, if it was three hours to go, they would have ample time to do something else.

[00:14:40] Speaker 01:
But here, they really don't have time except to engage in the process of going from one work site to the other.

[00:14:47] Speaker 01:
And there's no dispute that this would be compensated if the agency simply said, we need you to work from 6 a.m.

[00:14:54] Speaker 01:
until 11 p.m.

[00:14:56] Speaker 01:
and we need you to start at the prison and we need you to then go to the hospital.

[00:15:00] Speaker 01:
If the schedule was 17 hours, this time would be compensated.

[00:15:04] Speaker 01:
If it was traveled in a government vehicle, they would have compensated it.

[00:15:08] Speaker 01:
If it was mandatory over time, they would have compensated it.

[00:15:11] Speaker 01:
And there's also no dispute that if this was in the private sector, that this time would be compensable under the Department of Labor regulations, continuous workday rule, where they specifically say travel from job site to job site is compensable.

[00:15:29] Speaker 01:
Just because you are working and your shift ends at 4 o'clock and something happens and your boss needs you across town to go work on it,

[00:15:37] Speaker 01:
You're compensated for that time.

[00:15:39] Speaker 01:
It's all part of the continuous workday.

[00:15:41] Speaker 03:
Let's hear from the other side.

[00:15:43] Speaker 03:
OK, thank you.

[00:15:44] Speaker 03:
We'll save you some rebuttal time.

[00:15:45] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:15:48] Speaker 00:
The holding of the trial court should be affirmed because it correctly determined that the appellants are not entitled to pay for time spent traveling between their regularly scheduled shifts at the prison and the voluntary overtime shifts guarding inmates at area hospitals.

[00:16:05] Speaker 02:
I think I anticipated Judge Newman asking this question, and I have the same question, which is, is it correct that the government's position is if overtime is required or compelled, then they would have been paid for this?

[00:16:20] Speaker 02:
And if the answer to that is yes, why should the rules be different, whether it's voluntary overtime or required overtime?

[00:16:29] Speaker 00:
Well, Your Honor, I think there's evidence in the record that

[00:16:34] Speaker 00:
In fact, the guards are paid if it's mandatory.

[00:16:40] Speaker 00:
However, our position is that the voluntary nature is not in and of itself dispositive.

[00:16:49] Speaker 00:
What that goes to, what is dispositive,

[00:16:52] Speaker 00:
is the manner in which these shifts are scheduled.

[00:16:57] Speaker 00:
And the reason is that the overtime shifts at the hospitals are not part of the guard's principal activities.

[00:17:07] Speaker 02:
So the way that we get there is that... But then how does the government get away with paying for if it's required?

[00:17:16] Speaker 02:
I mean, if they are not part

[00:17:18] Speaker 02:
of the regular schedule activities, then why, in the context of paying of mandatory overtime, are you allowed to pay them?

[00:17:27] Speaker 02:
I mean, the government can't go around paying money that it's not obligated to pay.

[00:17:31] Speaker 02:
So there must be something that makes you feel that to pay for required overtime, there's a requirement.

[00:17:37] Speaker 02:
What's the difference?

[00:17:39] Speaker 00:
Yes, Your Honor.

[00:17:41] Speaker 00:
Just to be clear, as an initial point, no one's disputing that the time at the hospitals is paid for.

[00:17:47] Speaker 00:
I think the question is, and there's some lack of clarity in the record, as to when we say mandatory overtime.

[00:17:59] Speaker 00:
There is a distinction between a supervisor coming down to a guard and saying, I need you to get over to the hospital right now.

[00:18:07] Speaker 00:
Something's happened.

[00:18:08] Speaker 00:
Get in your car.

[00:18:09] Speaker 00:
Drive over there right now.

[00:18:11] Speaker 00:
If that's the definition of mandatory overtime, then yes, they would be compensated for that because they were directed to essentially proceed immediately.

[00:18:21] Speaker 00:
The question before the trial court, though, wasn't that.

[00:18:25] Speaker 00:
The question before the trial court was when we have this gap of an hour and the guards are asked, do you want to work this shift?

[00:18:36] Speaker 00:
And they say yes.

[00:18:38] Speaker 00:
then that means they have to appear at that time and that place.

[00:18:43] Speaker 02:
And what I would say to... So I guess I just need to put this to bed because it really is confusing to me.

[00:18:49] Speaker 02:
So if you have a workplace and they say, OK, every other month you, me, and Judge Newman are going to have to work double shifts at first at the prison and then move to the hospital and get overtime.

[00:19:03] Speaker 02:
So it's required.

[00:19:04] Speaker 02:
It's not necessarily forever, but it's required for a certain amount of time.

[00:19:10] Speaker 02:
Are we getting paid for that travel time, that one hour it takes us to get through in that circumstance?

[00:19:19] Speaker 00:
in that circumstance no your honor and i don't like that what i thought we were accepting that for voluntary no pay for required was well i guess that i think there is a bit of uh... you know confusion as to this distinction of what your honor just described which is the this this schedule nature or a gap in the activities are pre-planned gap

[00:19:44] Speaker 00:
as opposed to the other hypothetical of someone just being instructed to proceed immediately.

[00:19:51] Speaker 02:
OK, but you're saying in the regular mandatory not voluntary overtime, if it's not an exigent circumstance, et cetera, because you wouldn't be pre-scheduled.

[00:20:02] Speaker 02:
If this was an emergency, then that wouldn't be a pre-scheduled regular step.

[00:20:08] Speaker 02:
I just want to know what the record is, because if the government's doing two different things,

[00:20:12] Speaker 02:
I think we have to justify what the distinction is, but you're telling me that's not true.

[00:20:17] Speaker 00:
That's my understanding, Your Honor, is that when there is this gap in the shifts, that they are not entitled to pay for that time.

[00:20:28] Speaker 02:
Even if it's a part of your regularly scheduled thing, is that it's mandatory over time.

[00:20:36] Speaker 00:
That's my understanding, but I would also... That's not the record before us.

[00:20:41] Speaker 03:
Well, Your Honor, the... The record is clear, I thought, that if you are ordered to take the second shift, you get paid for the hour.

[00:20:50] Speaker 03:
You say no?

[00:20:54] Speaker 00:
Honestly, Your Honor, the record and the trial court's reference, I believe, is at the third or fourth page of the decision where they mention the mandatory overtime.

[00:21:06] Speaker 00:
It's unclear to me whether or not that's referring to this

[00:21:11] Speaker 00:
gap period or the instructed, the exigent assignment.

[00:21:18] Speaker 04:
But the question of what is mandatory isn't at issue here.

[00:21:23] Speaker 04:
Because this second activity was not mandatory.

[00:21:28] Speaker 00:
That's correct, Your Honor.

[00:21:30] Speaker 00:
And the point that I would like to make is that the voluntary or the mandatory nature of it

[00:21:39] Speaker 00:
is not the dispositive question under the regulations.

[00:21:42] Speaker 00:
And that's what the trial court held.

[00:21:44] Speaker 02:
So what are the dispositive questions?

[00:21:46] Speaker 00:
The dispositive question is the regularly scheduled administrative work week.

[00:21:51] Speaker 00:
In other words, the guards work their regularly scheduled shifts at the prison.

[00:21:57] Speaker 00:
And then there is this irregular ad hoc period where they volunteer, but they work an additional shift

[00:22:08] Speaker 00:
at the area hospitals.

[00:22:09] Speaker 00:
The trial court found, and again walking through the regulations, which admittedly is a, I think the court described it as a nested definition, but in going through the regulations what we arrive at is the regularly scheduled administrative work week is the principal activities.

[00:22:30] Speaker 00:
And while they're entitled to the compensation for the time spent working,

[00:22:36] Speaker 00:
at the area hospitals.

[00:22:38] Speaker 00:
That work is outside of the principal activities.

[00:22:41] Speaker 04:
And which regulation covers this?

[00:22:44] Speaker 04:
Is it 412B?

[00:22:45] Speaker 00:
Yes, Your Honor.

[00:22:46] Speaker 00:
We begin there, and then we look to the accompanying regulations for the definitions that inform that.

[00:22:54] Speaker 00:
So yes, it begins with 551, 412B, but then we also look to 551, 421,

[00:23:03] Speaker 00:
for the definition of regular working hours, and then 550.112 for the definition of principal activities.

[00:23:16] Speaker 03:
So you're saying that there's no difference.

[00:23:19] Speaker 03:
Neither one gets paid for that hour gap.

[00:23:25] Speaker 03:
That isn't the way it's been presented.

[00:23:29] Speaker 03:
But if there is no difference, then

[00:23:33] Speaker 03:
Their argument is weakened, but it seemed to me that the government was justifying because they say these are the OPM rules and we don't make the rules and this and that.

[00:23:45] Speaker 03:
And if you are ordered, you can always say, no, I suppose to an order.

[00:23:51] Speaker 03:
But if you're ordered to shift at the hospital, you get paid for the hour in between.

[00:23:58] Speaker 03:
You're saying that that's wrong.

[00:24:01] Speaker 00:
What I'm saying, Your Honor, is that on this record, there were no or next to no instances where anyone was ever ordered to do so.

[00:24:15] Speaker 03:
What I'm also saying that if... You're not being direct.

[00:24:21] Speaker 03:
Is it that you don't know the answer?

[00:24:24] Speaker 00:
In short, as a factual matter,

[00:24:27] Speaker 00:
I don't know, as I stand here today, whether or not the prison, in fact, pays someone for that hour if they're ordered to do it.

[00:24:40] Speaker 03:
Well, we're told here that the answer to that is yes.

[00:24:45] Speaker 03:
They do pay.

[00:24:46] Speaker 03:
So perhaps what we need is a statement on behalf of the government as to exactly what the practice is.

[00:24:56] Speaker 03:
A clear statement?

[00:24:58] Speaker 03:
The document?

[00:25:01] Speaker 00:
Potentially, Your Honor, if the court would like that.

[00:25:04] Speaker 00:
I guess the point that I'm making is that, again, under the regulations, they wouldn't be entitled to payment for that time, regardless of whether or not it's voluntary.

[00:25:14] Speaker 02:
That was my question.

[00:25:15] Speaker 02:
When you're reading the regs, all the regs you cited to us,

[00:25:19] Speaker 00:
uh... is there a distinction and argument one would make that this they would apply to mandatory even though they don't apply to voluntary or vice versa depending yes the bottom line is your honor the voluntary nature of it is not the dispositive question and the trial court didn't hold that the trial court noted that again under the facts of the record it essentially always is voluntary but the dispositive question was the irregular nature

[00:25:49] Speaker 00:
of uh... uh... of the overtime scheduling at the hospital so we have to accept that as a fact yes your honor because the the and and as and the opponents don't dispute that even in their briefing before this court i believe it's at pages thirty two to thirty four in their briefing

[00:26:09] Speaker 00:
They indicate that there isn't a dispute that the overtime shifts are irregularly scheduled.

[00:26:18] Speaker 00:
And there's good reason for that.

[00:26:20] Speaker 00:
Because, again, we're talking about... It's not the issue.

[00:26:24] Speaker 03:
The issue is whether these workers get the same pay for the same work.

[00:26:31] Speaker 03:
Isn't that what the government is all about?

[00:26:35] Speaker 00:
Well, certainly that is a principle of the government, your honor, but I guess what I'm saying is that whether it's voluntary or not, they wouldn't be entitled to payment for that time.

[00:26:49] Speaker 04:
What about 550-112A, which includes

[00:26:56] Speaker 04:
activities during periods of irregular or occasional all the time work does that not include traveling time to such irregular periods?

[00:27:09] Speaker 00:
Yes, Your Honor.

[00:27:10] Speaker 00:
It would be excluded because, again, it's a post-liminary or preliminary activity.

[00:27:16] Speaker 00:
Again, it's akin to commuting, which would be under the Portal to Portal Act.

[00:27:20] Speaker 00:
But one other point to make about

[00:27:24] Speaker 00:
55112 that came up, and the trial court addressed this at footnote 8 in the decision, which is that in 55112, there's this reference to activities performed by an employee during periods of irregular or occasional overtime work authorized under 55111.

[00:27:53] Speaker 00:
And the trial court noted that appellants are specifically excluded from that definition because they're not covered under 550.111.

[00:28:04] Speaker 00:
So again, in reading these regulatory definitions together, the point is that 550.112 demonstrates that the activities performed by the appellants

[00:28:20] Speaker 00:
at the area hospitals are outside the scope of principal activities.

[00:28:27] Speaker 04:
But here we're not talking about the activities performed in that irregular work, but travel time to such activity.

[00:28:38] Speaker 00:
Yes, Your Honor.

[00:28:38] Speaker 00:
But again, under the definition in 550-412-B, those would be preliminary or post-liminary activities.

[00:28:49] Speaker 00:
Essentially, this discussion about whether or not they're under the control of the agency or anything like that, they have concluded their activities at the prison.

[00:29:01] Speaker 00:
They have departed the prison.

[00:29:03] Speaker 00:
They're traveling to, commuting to another work site.

[00:29:07] Speaker 00:
And again, that travel time is no different from an employee traveling to their regular place of work.

[00:29:18] Speaker 00:
to perform work.

[00:29:19] Speaker 00:
And along the way, they can do whatever they want.

[00:29:23] Speaker 00:
They can make a phone call, listen to music, stop for food, whatever it may be.

[00:29:29] Speaker 00:
But that time is not work.

[00:29:31] Speaker 04:
I don't see the word control in any of these regs.

[00:29:35] Speaker 04:
Maybe I've missed it.

[00:29:36] Speaker 04:
So are you saying the issue of control isn't dispositive, whatever it means?

[00:29:46] Speaker 00:
Yes, I would agree with that, Your Honor.

[00:29:48] Speaker 00:
that the issue that is dispositive and that comes from the regs is whether or not they're performing their principal activities and whether or not the activity in this case, the travel, is considered a post-liminary or pre-liminary activity, which it is.

[00:30:09] Speaker 00:
If the court doesn't have any further questions.

[00:30:14] Speaker 03:
Anything else?

[00:30:14] Speaker 03:
No.

[00:30:15] Speaker 03:
Good.

[00:30:15] Speaker 03:
Thank you.

[00:30:15] Speaker 03:
Thank you.

[00:30:16] Speaker 01:
Just a few points, if I could.

[00:30:20] Speaker 01:
First of all, this is not akin to a commute.

[00:30:22] Speaker 01:
It doesn't meet the definition of a commute in the OPM's regulations.

[00:30:26] Speaker 01:
Commutes are home-to-work travel or work-to-home travel.

[00:30:30] Speaker 01:
We are not seeking compensation for those situations here.

[00:30:33] Speaker 01:
This is not a commute.

[00:30:34] Speaker 01:
This is travel between work sites.

[00:30:37] Speaker 01:
That is very clear.

[00:30:39] Speaker 01:
And so the use of the word commute to try to conflate the two here is simply inapplicable.

[00:30:46] Speaker 01:
Second, the voluntary nature of accepting an overtime assignment, an employee can't volunteer to work for free under the FLSA.

[00:30:54] Speaker 01:
They can't say, oh, I'll work overtime, but you don't need to pay me.

[00:30:58] Speaker 04:
Well, the question here isn't whether they're working for pay.

[00:31:00] Speaker 04:
The question is the travel time.

[00:31:02] Speaker 01:
Exactly.

[00:31:03] Speaker 01:
And here, Your Honor, the overtime assignments are offered.

[00:31:07] Speaker 01:
And if accepted, they are then required to work that assignment.

[00:31:11] Speaker 01:
Okay, and so the travel is required.

[00:31:13] Speaker 01:
The agency knows they're working at the prison for eight hours.

[00:31:16] Speaker 01:
They know they have one hour or 30 minutes or whatever the shift may be to get to that assignment.

[00:31:22] Speaker 01:
It is under their control and indeed the definition in the OPM regs, and I didn't find it in a moment, your honor, it does include the definition of a control.

[00:31:33] Speaker 01:
If it's for the benefit of the employer and under the control of the employer, the time is compensable.

[00:31:37] Speaker 01:
It is hours of work.

[00:31:39] Speaker 01:
Here, the travel is solely for the benefit of the employer.

[00:31:43] Speaker 01:
The employer has to have someone watching this inmate.

[00:31:46] Speaker 01:
It's required.

[00:31:48] Speaker 01:
Okay?

[00:31:48] Speaker 01:
And so the employee is doing this travel for the benefit of the employer to get there to be able to guard this inmate when they're in trouble.

[00:31:56] Speaker 02:
Why is that any different than me traveling from my house to the court?

[00:32:00] Speaker 01:
because that is specifically excluded in the OPM regulations, which said home to work and work to home travel is not considered hours to work.

[00:32:09] Speaker 01:
However, if you are required to drive a vehicle... Right, but that's not even... That's not going on here.

[00:32:16] Speaker 01:
Yes.

[00:32:17] Speaker 01:
I mean, they are required to drive a vehicle to get to the hospital assignment.

[00:32:21] Speaker 01:
And here, commutes are specifically excluded.

[00:32:25] Speaker 02:
We are not... You're not using company cars, right?

[00:32:28] Speaker 01:
If they did use a government vehicle, they would be paid for it, for the exact same travel, for the exact same gap.

[00:32:32] Speaker 02:
Right, but they're not.

[00:32:33] Speaker 02:
There's no dispute on the record here.

[00:32:36] Speaker 01:
They do do that occasionally, on the record.

[00:32:39] Speaker 01:
And that is compensated.

[00:32:41] Speaker 02:
OK.

[00:32:42] Speaker 01:
And I will also add, under the record, the record is clear.

[00:32:47] Speaker 01:
We're not talking about a situation where someone's working during their shift and the lieutenant says, oh, the guy at the hospital just got sick.

[00:32:55] Speaker 01:
You have to get over there to cover.

[00:32:57] Speaker 01:
Here, they go through the overtime assignment process.

[00:33:02] Speaker 01:
And if no one accepts that overtime assignment, then they have to mandatory someone to work that.

[00:33:09] Speaker 01:
And that is exactly what we have here.

[00:33:10] Speaker 01:
They're doing the exact same thing.

[00:33:12] Speaker 01:
They're working his shit.

[00:33:13] Speaker 01:
They're like, sorry, no one picked up this assignment.

[00:33:15] Speaker 01:
I'm sorry, it's Christmas Eve, but you've got to get to the hospital.

[00:33:19] Speaker 01:
And then in that situation, they would pay him for it.

[00:33:22] Speaker 04:
I didn't hear that those are our facts.

[00:33:25] Speaker 01:
Those are the facts.

[00:33:26] Speaker 04:
That no one accepted it, and therefore, it was made mandatory to someone else.

[00:33:31] Speaker 01:
That is exactly the facts.

[00:33:34] Speaker 01:
It was asked, if no one accepts the overtime assignment, can it be assigned, like, mandatorily assigned, ordered?

[00:33:43] Speaker 01:
And the answer was yes.

[00:33:44] Speaker 01:
And in those situations, the individual would be paid for.

[00:33:46] Speaker 02:
But the individuals, your clients, were not in that circumstance.

[00:33:51] Speaker 02:
They voluntarily agreed to that.

[00:33:54] Speaker 02:
I think that's Judge Laurie's point.

[00:33:55] Speaker 02:
And isn't that the case?

[00:33:56] Speaker 01:
I'm sorry.

[00:33:56] Speaker 01:
They voluntarily agreed to it.

[00:33:58] Speaker 02:
They didn't say, nobody volunteered, so you're required to do it.

[00:34:03] Speaker 02:
They volunteered, right?

[00:34:05] Speaker 01:
So if that happened to my clients, we are not seeking that because they were paid for it.

[00:34:10] Speaker 01:
The government in the... OK, so the complaint here... Is they accept the overtime assignment.

[00:34:15] Speaker 02:
Voluntarily accept the overtime assignment.

[00:34:17] Speaker 02:
Our case is not about people who, in other circumstances.

[00:34:20] Speaker 02:
Our case involves employees who voluntarily accept the overtime.

[00:34:24] Speaker 02:
I think that was the point, Judge.

[00:34:26] Speaker 01:
Yes, that's correct.

[00:34:27] Speaker 01:
They voluntarily accept this because somebody has to.

[00:34:31] Speaker 01:
And if it's assigned, mandatory, if no one accepts it, then people are dealing with childcare issues.

[00:34:36] Speaker 01:
They can't do, you know...

[00:34:38] Speaker 01:
these people step up when there's overtime to be worked because they want to help everybody out.

[00:34:44] Speaker 01:
And they also want to receive eight hours of overtime pay.

[00:34:46] Speaker 01:
I mean, let's be honest.

[00:34:48] Speaker 01:
They simply are not getting paid for that time in between, which they should be and are entitled to under the regulations, under the FLSA, under the continuous workday rule, and more.

[00:35:00] Speaker 01:
And there's really no way to distinguish why an individual who is driving a government vehicle or is

[00:35:06] Speaker 01:
ordered and mandated to work the overtime assignment is compensated for it when someone who voluntarily accepts an overtime assignment or drives a personal vehicle is not paid for the exact same amount of time for the exact same work.

[00:35:23] Speaker 03:
OK.

[00:35:24] Speaker 03:
Thank you.

[00:35:25] Speaker 03:
Thank you, counsel.

[00:35:26] Speaker 03:
The case is taken under submission.