OA37: FLSA and Exempt Employees, Part 1

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 37. I'm your host, Thomas Smith, and that over there is your host Andrew Torrez. How are you doing today, Andrew?

0:01:28 Andrew: I'm great, Thomas. I think you are host number one today. So

0:01:32 Thomas: Oh, today I get to be—okay, cool. Host number one. Let me change chairs here, get the taller chair. There's a whole—we have a whole ceremony for who's host number one, I can put on the host number-one jacket. So it's the way we get through these recordings, guys. Don't judge us, okay? Okay. No. So yeah, very excited today. First listener question is going to be from somebody you guys may know. But before that, our first thing we need to talk about is a little bit of a correction, Andrew, I guess.

It's not so much a question, but it's a point made by patron Victoria McNair and she says, "Hi guys, I'm a certified payroll professional and I hate to contradict you about the FLSA, but the law does require that tipped employees must make minimum wage between their tips and wages, or the employer is required to make up the difference.

Please see DOL fact sheet number 15 if you'd like the details." I hate to say I told you so, Andrew, but I did kind of question that a little bit at the time, so maybe count this as one time, you know, I had something interesting and slash maybe technically correct to add,

0:01:45 Andrew: No,

0:02:42 Thomas: But I very quickly cowered down to your superior expertise on the matter. So yeah.

0:02:47 Andrew: You did. A, we appreciate the correction. Obviously, we try and run a transparent show here. And I was answering the question. This was, we were down sort of a little bit of a rabbit trail. And, and I was answering it, you know, without research and kind of off the top of my head. I do these FLSA cases, but I have never litigated a tipped employee case. There's a tremendous amount of law on this. So it is, and I've read some of those cases.

So it really was kind of an inexcusable error on my part. It's definitely a mistake. Ms. McNair is 100% correct. Uh, and I retract that portion of my statement from that episode. Um, no, I got it, I got it wrong. That, that happens, and you know, it's, it's part of why we say don't take legal advice from this podcast. Um, but no, I, I mean, I, I believe in that accountability, and it's important. Um, it important to get that right, sort of for the understanding, obviously this is going to be a large FLSA episode generally. Uh, and I wanted to make sure we, uh, we began, you know, with

0:03:49 Andrew: With the record

0:03:48 Thomas: Yeah. Start off on the right foot. Well, it takes a big man to admit that his co-host was wrong, but yeah, I guess Andrew was wrong, everyone. So, I mean, I don't use the word hero lightly, but you know, whatever. Well, I'll let others decide. That's why Andrew was demoted to host number two today. But I'm sure he'll get, get that host number one distinction back soon. No, it's great. I expect, and the listeners, I think, have come to expect so much from Andrew, just like rattling off hours of incredible details and legal opinion and expertise per week, that it is completely understandable that occasionally you would get something incorrect, but we're happy to fix that. And just, I want to echo your sentiments that I like the idea that we've got this brilliant listenership who is just going to, you know, correct us when we get something a little off.

0:03:50 Andrew: Correct. Yep. Thanks.

0:04:43 Thomas: But for the most part, I think your batting average is incredibly high, Andrew. So don't don't let it get you down. All right. Let's go to our first listener slash host question.

0:04:50 Andrew: Yep.

0:04:56 Clip: He who questions training, only trains himself at asking questions. What?

0:05:04 Andrew: And

0:05:04 Thomas: All right, you know what? I've got a Listener Thomas S. question for you, Andrew. This is just something.

0:05:08 Andrew: That's a bingo for somebody. So, well,

0:05:14 Thomas: Listener Tomas S. asks, all right, so I just went and practiced some hockey today. You know I play ice hockey. I've talked about it from time to time. And I try to play. One of the reasons I had to quit my job was it was really cutting into my hockey time. I had to keep missing these games that I've already prepaid for. I miss tons and tons of games. But now I should be able to play all the time.

Anyway, point is, I go into play today, this morning. And I go to start to pay. It's like, whatever, I'm just doing one of the practice times. It's like open ice, can just do whatever on ice. And they tell me, like, "Oh, I need you to sign a waiver." And I say, for crying out loud, to try to keep this a clean show, I've not only have I signed 4,000 of these things in the past, I've signed 30 in the past, I currently have three waivers open for the three teams that I play on, and yet they're like, "Well, you know, it's 2017, we got I need a new waiver from.

So I just wanted to ask you, this is probably just a stupid policy thing, or maybe not, maybe there's some legal basis or something, why do I have to sign, not only can I not just sign one waiver for the, the rink itself, like, "Here's your waiver, Thomas, if you're ever on this rink, you recognize you could fall because you suck at hockey, you could trip over something, you could fall on the ice and hurt yourself." I can't just sign that forever.

Why can't I just sign one that's, Thomas recognizes that forever, this is an ice rink and hockey is played on it, like, every single season, this is twice a year, there's two seasons a year, I have to sign a waiver for

0:06:47 Thomas: Every single team I'm on, and apparently I have to sign a generic one each year for just anything else I might do on the ice. Does that make any sense to you?

0:06:55 Andrew: There's two questions. So the first question is, could you sign a generic waiver of liability going forward? And the answer to that is very clearly, yes. OK, you could. But then the question is does does this make any sense to me? And as somebody who drafts liability waivers for people, makes sense. Here's what happens. Right. So what happens is the ice rink has a relationship with a lawyer like me, and they've called someone like me up and said, okay, what do I have to do in order to not get sued? And as a lawyer, I get different kinds of questions. Right. So, for example, it might be the case that I happen to provide advice on a regular basis to a certain podcast that comes very, very close to libeling people on a weekly basis. Right. If the question is, what do I have to do not to get sued? The answer to that podcast is stop doing the podcast. Right? Like you're you're saying horrible things about certain presidential candidates. And at some point, you probably will get sued.

0:07:06 Thomas: Hmm. Yeah. Right

0:08:00 Andrew: So with them, I answer a different question. I answer the question, what do I do such that if we're sued, we win? Ice rink has said to their lawyer is, I don't care how inconvenient it is to the people who walk in the door. I want to make sure I do not get sued. And if we get sued, we can move to dismiss right out of the box and, you know, make this a hundred

0:08:24 Thomas: Out of the penalty box. Oh, just trying to tie it in.

0:08:25 Andrew: Right. Yeah. Oh. There you go. Yeah. Uh, uh, and and I want to make sure that there is just absolutely zero doubt. And so what a lawyer is going to do, even me, in this situation

0:08:37 Thomas: Have them sign a damn thing every time they enter the building. They don't even, you know what, each period, every period, a new mission, like get together. We got to have you sign another waiver for the next period. Just, you Know, we got to be covered.

0:08:37 Andrew: Yeah. Is say Right. Yeah. Right. Yeah. Yeah. Yeah. And and that's and that'S the answer, because you're going to go and slip and fall on the ice and call some crappy plaintiff's personal injury lawyer. And He's going to be. Yeah, exactly. And he's going to be like, "Mr. Smith, this is the greatest lawsuit since, you know, my suit against The NeverEnding Story, too." And uh, yeah.

0:08:57 Thomas: Lionel Hutz.

0:09:08 Thomas: Forgot about that one.

0:09:09 Andrew: And and then the the ice rink is going to call on me and I'm going to come in and I'm going to be like, Thomas Smith has signed four separate waivers of liability over the past 12 months you know, yeah.

0:09:15 Thomas: You know what to do another tie in when they bring in When you bring in the waivers of liability to the courthouse, you can recreate the Miracle on 34th Street scene where they just dump tens of thousands of these freaking waivers your honor You want to see how many times this gentleman has signed a hockey waiver, the judge is killed instantly, and then you win the case. Okay.

0:09:24 Andrew: Right. Yeah, bags bags and bags of waivers Yes. Yes. Yeah, yeah. But there was, but there will still be gaveling sounds going on in the background. And if you want to understand that joke

0:09:42 Thomas: Okay. Hey, you gotta sign on to patreon.com slash law to hear what we're talking about there. We go.

0:09:45 Andrew: That's right. But yeah, no, so and that's, and that is why, and that, exactly the conversation I would have with the rink as a client, to be like, yeah, uh, do you make them sign four waivers? No, but if they, but sign four separate waivers, then you are, it is my judgment that you are about as covered as you can possibly be in this situation. And as long as the rink itself is not negligent, this is a tie to last Tuesday's episode 31. As long as The Rink is abiding by a due standard of care for the field of providing a hockey rink, then, you know, then they're fine. And this is this is good illustration of the.

0:10:10 Thomas: Yeah, all right.

0:10:22 Thomas: But I But I hate this. Give me, I'm sorry, okay, I understand that's the safe, you know, uh, safe as possible thing. Give me, give me an estimate. I, I'm, you have to do this, or I'm gonna be mad at you. Give me, gimme an estimate percentage. Okay, let's say if the, if the case for dismissal with the 47,000 waivers is 100, let's say, what's the case for dismissals with a one waiver a year, 99.9999 with a line over, like, come on, what is it? Well,

0:10:23 Andrew: Yeah.

0:10:46 Andrew: Well, the difference would be if you've signed a waiver for your, the teams on which you play, I could certainly see a plaintiff's lawyer making the argument that there's a difference between playing hockey and practicing skating. Right, and to say, hey, look, yeah, like, he came in and he signed a waiver for playing hockey, which involves, you know, big guys crashing into him and beating the hell out of him with their sticks, but he, he didn't just think it was inherently dangerous just to be on the ice itself. And so, you know, that's that would be the Argument.

0:11:20 Thomas: I Okay.

0:11:20 Andrew: That I would make. So, Well,

0:11:21 Thomas: I get it, I think it's the exact same form every time, just, just add that in there. So how's that factor and just because I'm signing it for a, like, at a different time, that makes a difference, or

0:11:27 Andrew: Now, well, there I would, would say the hockey rink probably needs a better lawyer, and they can call me that.

0:11:34 Thomas: I'm Gonna, I'm, you some homework. I'm going to see if it's the exact same form. I think it is, but if it is, then that's true. We got to just be useless, right? If I'm signing the same exact form four different times, that's just making copies of a form. How about you just sign it once and then make four copies and be about the same thing? Anyway, all right. Well, thanks for indulging me. It's just those little legal frustrations that I'm sure some of us have felt in our everyday lives, although I don't know how many people play as much hockey as I do, but there you go. Oh, good.

0:11:58 Andrew: Yeah, we we have we have gotten and and there is another question about waivers in the queue. So

0:12:11 Thomas: Oh, good.

0:12:11 Andrew: I I think that I think it's it's useful. There is probably some ability to generalize beyond the ice hockey context, which may be a little specific for our listeners. Listeners but um but no you know obviously

0:12:22 Thomas: Yeah, our Canadian listeners are loving it right now, they're like, "Ah, I've been wanting to ask this for so long." Although, you know, what, that might be in the Canadian Constitution, though, there's not even, you don't need a waiver for hockey. It's just like, it's understood in the Constitution of Canada that, like, yeah, okay, hockey's hockey, we don't, no one's gonna sue anyone for hockey, that's just part, part of Canada. All Okay, for our main topic of the day, Andrew, there's another opinion you've expressed in the past that, fortunately, I don't think we're doing a correction on. That's good. But maybe a clarification on, FLSA.

In as you alluded to earlier, you've said the new threshold for, I now I'm not the expert, but it was the threshold for for exempt employees, that you expressed a high level of confidence that that's going through. And I think people, including myself, I think I've asked you about it, were a little confused with the new administration coming in with Congress and all that, how you have such a high-level of confidence there. So maybe this is a chance for, I guess, to explain that a littlebit, it, where that confidence comes from. And I think you're going to talk about a lot of other components of FLSA. So I'll throw it over to you for that.

0:12:25 Andrew: Right yeah yeah Let me say at the start of this segment, we have the disclaimer at the beginning of the episode. I think I have already independently said, don't take legal advice from a podcast. This is really an area where I have been meeting with my clients, and there's a ton of of individual client-specific recommendations that I have given to individuals who are employers or who are decision makers for companies that have employees. I'm going to talk about specific principles, but if you have a company that does over $500,000 in business and is subject to the FLSA, it's a pretty low threshold.

0:14:21 Thomas: Yeah.

0:14:21 Andrew: Um, then, uh, you know, if you don't want to give me a call, uh, don't give your lawyer a call. Um. You want give to me that's fine.

0:14:27 Thomas: Well, I think my lawyer could kick your lawyer's butt. So maybe call my lawyer, Andrew Torrez.

0:14:27 Andrew: Um yeah. Uh, but seriously, I mean, we're talking about principles, don't try and sort of export these directly from this conversation into your practice without consultation with a lawyer. So with that in mind, me take a step back a little bit. The Federal Fair Labor Standards Act imposes maximum hour and minimum wage requirements. And those work in sometimes some counterintuitive ways. So for example, Um, if your employee is paid weekly and works and there's a maximum hours of 40 per week, otherwise under the FLSA, that employee is entitled to time and a half for overtime. Um, The employee works 38 hours in week one, uh, and then 42 hours in week two, uh. You are responsible for two hours of overtime to that employee, right? In other words, you cannot, on an employee who's paid weekly, you cannot sort of carry forward or backwards or less hours. And that's something that a lot of employers, I think, find sort of counterintuitive.

0:14:43 Thomas: Sure.

0:15:39 Thomas: Yeah, if they're paid paid every two weeks, you might be able to do that, right?

0:15:43 Andrew: No, that's That is not the case. So, uh, 29 USC 207 a1, uh, imposes a maximum work week, and it does not, uh, it does does not matter how frequently the employee is paid, uh, within that work week. If you have worked overtime hours, you were entitled to overtime compensation. Um, So yeah, there's, you can't kind of jigger it, forwards and backwards. Now, uh, know what you're thinking, which is to say, um, well, it sure seems like an awful lot of people are salaried employees. They're off the clock. Um, how does that work? And right, the way that works is, uh, there's a a later section in the act. Um, it is 29 USC 213. So a couple provisions later, and 29 USC 213 a, uh, says that the provisions of the act that apply to a minimum wage and maximum hour requirements shall shall not apply to any employee employed in a bonafide executive, administrative or professional capacity, dot, dot, dot, as such terms are defined and delimited from time to time by regulations of the secretary of labor, uh, subject to the provisions of blah, blah, blah.

0:15:44 Thomas: Okay. Yeah.

0:16:53 Andrew: Okay. So what does that mean? That means those three categories of employees, executive employees, administrative employees, professional employees, can be exempted. They can be off the clock. And everybody that you know who does not get paid overtime is considered by their employer, if not considered by the FLSA, to be in one of these categories. There are some other exceptions that I, you know, with regard to the catching, taking and harvesting of fish and shellfish.

0:17:24 Andrew: But by and large, yeah, that's, I have a combination law firm slash fishery. So look, this covers millions and millions of employees. And you'll notice that within the definition of what's an executive capacity, right? And it says, well, as defined by the Secretary of Labor, right.

0:17:23 Thomas: Well, that's what I did at my old job, so that's why I was exempt. No, I was just exempt. Yeah.

0:17:48 Andrew: Right. So, right.

0:17:47 Thomas: I like that from time to time, too. That was kind of a weird, I didn't expect that to see, to see that in a law, like, here or there, every once in a while we're kind of updated whenever we feel like.

0:17:53 Andrew: Well, that that so that's actually a fairly common construction. And what it means is that, example, let me give a plug for Serious Inquiries Only, your other podcast, one of your other podcasts, I should say.

0:18:00 Thomas: I've heard of that show, yeah. It's

0:18:10 Andrew: And episodes two and three, I thought you did a fantastic job of going through Donald Trump's cabinet appointees. And this is how that how that episode interrelates with opening arguments. So, yes, this is this is our crossover episode where, you know.

0:18:25 Thomas: All one universe. Everybody, as Eli Bosnick would say, yeah. Turns out we're trying to just be in the real universe. It's not like a comic book universe, it just, we're try to cover the actual universe, so that's why they relate. But thank you, thank you very kindly for that plug. I appreciate it. Make

0:18:39 Andrew: Um, No, but in addition, in addition to the plug, which is well deserved, and, um, if we have Opening Arguments listeners who aren't listening to Serious Inquiries Only, uh, you should. Um, what a cabinet appointee does is, uh, they are. So the secretary of labor is the head of the executive agency, the Department of Labor. And one of the primary responsibilities of the Department of Labour is to promulgate rules. And what rules do is sometimes when Congress passes a law, sometimes they pass a law that very specifically says X. So for example, when, when Congress in the mid-90s banned semi-automatic weapons, the bill they passed banned 31, I believe, types of semi-automatic weapons and said, you may not buy the following guns, you know, blah, blah.

0:19:34 Andrew: Blah, blah, blah. Of the very obvious weaknesses of having a bill that specifies you may not buy, you know, the following types of guns is a gun manufacturer can just take that gun. Yeah, right.

0:19:44 Thomas: A new gun that's the same

0:19:46 Andrew: Exactly. And so it's it's there's sort of an instant obsolescence. Right. Right. So.

0:19:46 Thomas: Ah, yeah. Here's the new AK-48, yeah.

0:19:55 Andrew: Right. Exactly. So the way to get around the AK-48 dilemma is to say instead of saying you may not buy these types of guns, you may say you may Not buy any gun which is on the Department of Alcohol, Tobacco and Firearms prohibited list as amended from time to time by the secretary of the Department Department of Alcohol, Tobacco and Firearms. Right. And so then that delegates to the executive agency the ability to promulgate rules that implement the congressional statute. Make sense.

0:19:56 Thomas: Uh-huh. Yeah.

0:20:29 Thomas: So they make the new AKA-48, and then the secretary presumably would just be like, yep, add that to the list, and then they'd add it to the listen that'd be fine. So that makes sense. I just, the wording seemed a little, for some reason, casual to me, like, I don't know why, but I get, I mean, I get the meaning. It totally makes sense.

0:20:38 Andrew: Right, right. And that but that that time to time language is an indication that there is intended to be ongoing rulemaking authority. And this is something that is, it's the subject of some debate because, right, the executive agency by itself has no power to make laws, right? Like nobody elected the Secretary of Labor and the bureaucrats that work in the Labor Department, right. So they get their authority. It is delegated from Congress. And you have to look at what is the delegation from Congress in order to figure out what can they do, right.? Um, I want to anticipate a question that you might have, and this, this will probably come up a little later, but I'm thinking about it now. So I want to sort of block it out.

0:20:55 Thomas: Right, right, right. Okay.

0:21:26 Andrew: Um, it's it's fairly different than the process of, as a president issuing executive orders, right? So when you hear about Donald Trump saying, I'm going to come in and with the stroke of a pen undo, you know, know all of Obama's executive orders, um, he has reasonable flexibility to do something like that, right? Like executive orders are executive orders and the president can come in and and overturn

0:21:47 Thomas: Yeah. Just undo. Hit the control Z on all the Obama's executive orders.

0:21:52 Andrew: Right exactly um But you can't undo rulemaking authority that has been promulgated by an executive agency. What you can do is you could put new people into your department to come up with the new rule, uh, but that's a different procedure, it's a lengthier procedure, we're going to talk about that a little bit more. No.

0:22:13 Thomas: Well, interesting. Okay. Well I, sorry if you're going to talk about it later, but now I'm, I'm wondering if the equivalent would be, let's say we get it to continue with the gun example. We get a new new, uh, secretary of guns in there and he's better, he better have big guns by the way, I mean, nice, never wears sleeves, just secretary of guts and

0:22:18 Andrew: No, go ahead. Jesse.

0:22:35 Andrew: Jesse, Jesse the Body Ventura for Secretary of Alcohol, Tobacco and Firearms.

0:22:39 Thomas: Arnold. Or somebody, although Arnold not a Trump fan, uh, but anyway, uh, couldn't they just take off the AK-48, like, say, the prior secretary put it on there, you get the new secretary in there, it's using the same power, he's just like, I'm just going to erase that little AK-48 there. Now you can use that whenever you want. And applying that logic, will it apply to this law that we've talked about, about the threshold? So could they just change that threshold back?

0:22:40 Andrew: Right And the and the answer to that is no, um, when the answer that is somewhat no and somewhat yes. Okay, no, not in the way that you've described. Because the rules being promulgated by the executive agency have to be supported by fact finding. And I really, I mean, we do not have time to sort of go down the rabbit trail of how administrative bodies make their decisions. But there is, there's a considerably more involved process, and it has to be followed up by a period of public notice and comment as well. Right. So so in other words, there are more procedural safeguards that go into crafting an administrative agency's determinations and rulemaking than go into issuing an executive order. Right.

0:23:58 Thomas: Executive orders. Yeah.

0:24:00 Andrew: Right. So, you know, now that's not to say now, again, look like stick with our guns list. Right? You've got 40 guns on this list. And then all of a sudden, a pro gun president is elected. He appoints Jesse the body Ventura to be secretary of alcohol, tobacco and fire. I was picking him a because he's been governor of Minnesota B because he has huge guns and C because he is a he's a firearms nut. Right so in Yes.

0:24:25 Thomas: Isn't he a crazy libertarian, extreme libertarian? Yeah.

0:24:28 Andrew: Yeah. Yeah, I So he actually fit the role for all of that. And I think he lives in like a compound in Mexico somewhere.

0:24:28 Thomas: Okay. Yeah. Perfect. You know, I yeah, I think I heard an interview with him and it's an interview done from a yeah, from a remote location where nobody can find him. What a bit of a paranoid guy.

0:24:37 Andrew: Yeah, a little bit. So he comes in and restaffs the agency and they take a look and they say, you know, there was a previous agency filing that this that this gun qualifies as a semi-automatic under the Congress's grant of authority. But we've determined that it doesn't because of X, Y and Z reasons. So you could go back and undo that. But you are constrained. Remember, at the outset that these are executive agencies. So their power to make laws, they have no power to makes laws, but their power is a function of the authority that's been delegated to them by Congress. And so if Congress has said, we want this agency to determine whether weapons are semi-automatic as fits whatever criteria are set forth in the legislation, don't have the full discretion to say, as an agency, well, this probably is, but people ought to be able to own semi- automatic weapons, right?

0:25:40 Andrew: That exceeds your authority as an urgency. All you can do is, you know, you could you can advise the president, hey, look, like I've got this task delegated to me to to list off the types of guns I think people shouldn't be allowed to own. And I sure wish that were nothing. But based on what's delegated To me, I'm going to have to list, you Know, another bunch of guns. And can you get your buddies in Congress to do something about that?

0:25:58 Thomas: Okay.

0:26:07 Andrew: You know, that's that's sort of how you do it.

0:26:07 Thomas: So you can't use the eraser method that I was talking about. You can just go, here's a list, erase AK-47, 48, right?

0:26:10 Andrew: Yeah, you can't use the eraser method for political reasons, right? So Donald by contrast to the political justification, President right, Obama issued an executive order with respect to transgender individuals in government employ, right? Protecting them from discrimination in bathrooms. And Donald Trump can come in and say, I disagree with that for political reasons and undo the executive order, right. If it were a delegated agency authority, then you wouldn't be able to say, I disagree with the purpose of this. Now look, could you drag your your feet in identifying things. Sure. And that's what agencies do, right?

0:26:16 Thomas: Well, yeah.

0:26:51 Thomas: Well, I was

0:26:51 Andrew: When you disagree politically.

0:26:51 Thomas: Going to ask, could they

0:26:52 Andrew: Go ahead.

0:26:52 Thomas: Just put in some BS argument and then just assume that Congress or whoever will be like, yeah, sure. Could they just say, oh, AK-48, not the same because we just don't, it doesn't look the same. It's a new number. And because of the Republican dominated Congress and all that, would that just fly? Ah,

0:27:11 Andrew: And the answer to that is actually at the core of this pending issue over the FLSA. It is a doctrine called Chevron deference from a case that involved the former oil company, Chevron. But it basically talks about how when you bring a lawsuit, how much deference is due to an agency's determination. So couldn't have set up that transition any better myself. So now that we understand that, what happened here? Okay. Right. So we have 29 USC 213 says the Department of Labor can from time to time define and promulgate regulations about what constitutes an executive administrative or professional employee. So on May 18th of 2016, Secretary Perez, Tom Perez of the Department of Labor, issued final regulations said updated the definition of what constituted an employee fitting into to those categories.

0:27:18 Thomas: Perfect.

0:28:14 Andrew: And the changes are as follows, okay? So the new rule, number one, set the salary level equivalent to the 40th percentile of earnings of full-time salaried workers in the lowest wage region in the census, which was the U.S. South, which which was $913 per week, or, and this is the number to remember, $47,476 annual. But then also number two, made some changes to highly compensated employees, which is another exception we're not going to talk about today. And then number three, this will come into play, established a mechanism for automatically updating the salary and compensation levels every three years to maintain those levels at the percentiles to ensure that they, quote, continue to provide useful and effective tests for exemption. OK, so

0:29:09 Thomas: Interesting. Okay, just for the the slow people like myself, just to reiterate, this was, when you're describing this, this is what Congress did. This is what the original bill was.

0:29:17 Andrew: No, this is what the Department of Labor came up with as part of their from time to time defining who counts as a executive, administrative or professional employee. And so now, okay,

0:29:23 Thomas: Oh, okay. Okay. So I'll still, in the back of my mind then, I'll let you continue, but I'm still a little confused as to how the new administration couldn't undo that. But but I'll continue on and maybe it'll figure it out. No

0:29:39 Andrew: Now, the important thing is when this rule goes into effect, and I'm going to talk about that in a second, are existing regulations that are corollary to 29 US 213 that talk about what sort of duties does somebody have to have to be an executive employee, right? Right. Like in those, to fall into this exception, you have to have some decision making authority. Right. You have to have some ability to work independently and without oversight. And, you know, and there, there are other criteria that relate to the function, the job that you do. That was not changed. But what was changed was the salary floor. And it is now, when this rule goes into effect, if you make less than $47,476, you do not qualify as an executive administrative or professional employee, no matter what you do.

0:30:38 Thomas: What. So it doesn't matter if you're like a supervisor, you're called a supervisor or you work totally independently. None of that matters if you're below that amount at all.

0:30:42 Andrew: Correct. None of that matters at all. Yes. And

0:30:48 Thomas: Gotcha.

0:30:48 Andrew: That affects, I mean, like I said, the FLSA sweeps into its ambit a huge number of businesses. And there are a lot of businesses where people who serve in that supervisory sort of capacity who are making less than $47,476, round up to $47.5 as I tell my clients a lot. And Um, those employers, um, again, don't take legal advice from a podcast. Uh, when this rule goes into effect, uh. We'll need to, uh change their policies because they cannot presumptively say, oh, yeah, well, you know, uh Thomas is exempt because, you he, uh does all and he's got to stay here late at night, right?

0:31:34 Andrew: Like he runs my entire, you you know, California division of this company. That's all well and good, but if you run the California division in the company and they don't want to pay you overtime, they have to pay you at least, they Better up your salary. That is exactly right. So that is what is at stake here. Now, what happened? Once this rule was announced, various trade organizations and states brought lawsuits in a number of jurisdictions trying to get any federal court to enjoin the lawsuit and prevent it from going forward.

0:31:45 Thomas: They'd better up your salary.

0:32:12 Thomas: Sorry, could you remind us, remind me where we are time-wise? So when was this, that

0:32:12 Andrew: Uh-huh. Yeah. So the decision was made after the internal fact finding in May of 2016. Uh, it was then, uh, published in July. And and then there was a notice and comment period, which lasted until September. The Department of Labor received over 270,000 comments. They took those into account. They're required by law to take those into count and modify the final rule. And so the final date of the implementation was set for December 1 of 2016. So you might be asking yourself, well, if the rule took effect December 1, 2016, why why are you talking about it in January of 2017? And the answer is that several states plus major trade organizations representing businesses lawsuits around the country in federal court seeking an injunction to block that rule from going into effect. Okay.

0:33:14 Thomas: And they got it, right?

0:33:15 Andrew: Yeah. And they filed in like a dozen jurisdictions. Um, and they got one judge in the Eastern District of Texas to issue an injunction. Okay. And that's, you know, you sort of do a little forum shopping and you, you the place where you think is going to be sort of most favorable to your arguments. Um.

0:33:32 Thomas: Stupid non-lawyer Question. What level of judge does that have to be, because it's not like you can just get any old, you know, judge Judy trap any

0:33:33 Andrew: Sure. Yeah. You can't You actually can. This is this is, uh, this

0:33:41 Thomas: Judge on any sort of level can just

0:33:43 Andrew: Is this is the the trial court judge, the United States District Court for the Eastern District of Texas, um, and they can enjoin a federal law from going into effect. Yes, they can.

0:33:44 Thomas: Wow What Where's the line on that? Like, what if you're like a traffic court, could you somehow enjoy

0:33:59 Andrew: No, no, to enjoin to enjoin a federal law, you need to be in federal court. Uh, But but you can get but you. You can get an injunction in state court for the passage of a state law. And in fact, you know, I've I've litigated cases like this where I litigate at a billion dollar coverage case for seven and a half years in Cuyahoga County, Ohio, where Cleveland is located. And, um, we would show up, uh, I was, you lead counsel with 50 insurer code, uh, co-defendants, uh, and we would show up for status conferences and, you know, 9:15 on the docket would be a traffic accident, and 9:30

0:34:00 Thomas: Yeah, okay. Okay. So you at least have to be in federal court Yeah.

0:34:40 Andrew: On the docket it would be, you know, this billion dollar coverage case.

0:34:40 Thomas: Oh. What a pain in the ass, huh?

0:34:45 Andrew: It was, it was amazing. Um, and, and you, it was a case where, um, we had a status conference once, that I think the first one, where the judge refused to come out of her chambers and sent out her clerk to sort of gather information and come back. Um, I think because, you know, I was all of a sudden, you know, you take something that's, um, if your typical docket is, you know, traffic cases, and all of a sudden, you know, you've got got 75 lawyers in the room, uh, you can see how that would be a little bit intimidating

0:34:46 Thomas: Yeah.

0:35:11 Thomas: There must have been a very confused uh pedestrian, you know, or whatever, just normal guy ahead of time that had a $25 parking ticket or something. He was like, boy, this has got to be a hell of a ticket someone's trying to fight.

0:35:14 Andrew: Yeah yeah yeah I didn't I didn't look at who went after us, but uh, I I do feel sorry for those, uh, for whoever that was.

0:35:27 Thomas: Yeah. The guy before you is making arguments like, look, the line was faded. The paint was faded, I could not tell. And meanwhile, you got 75 high-powered lawyers waiting after him.

0:35:31 Andrew: Um no, I it, we did. I mean, that her clerk came out and said, uh, is the plaintiff going to to have an expert, right? And, you know, which is a question you ask, you know, in a traffic accident case. Right, but I mean, here, you know, the answer was yes, that the plaintiffs are probably gonna have a dozen experts and the defendants are probably going to have about 30, and, yeah, you know, I mean, it was just, um, yeah it was a very, yeah.

0:35:52 Thomas: Wow, That's so interesting, thing, and that's all because It sounds like you, any judge, in the appropriate, I guess, level of court, can get an injunction, can file an injunction for, or would that be the correct

0:36:15 Andrew: The judges the judges don't file, you, you the the litigants file, the judges rule in favor of it, but, yeah, so yep

0:36:16 Thomas: Right right, what okay okay Because there's grant an injunction is what I meant to say, they can grant an injection

0:36:23 Andrew: So this is a this is a trial court judge, uh, in the Eastern District of Texas, and and, look, like, I I don't want to pause lightly over that, right? Like, I'm not on the federal bench, right? Like, so, you know, it's it it takes a lot to get appointed, uh, to the federal bench, um, I wouldn't mind, if we have any governors, uh, you know, uh, you know, who who prepare recommendations, uh, senators. Uh, if it, yeah, that, that would, that might violate some legal ethics, but, um, yeah.

0:36:24 Thomas: Okay, okay.

0:36:38 Thomas: That'd be great then we can get some real Patreon rewards going, like, you know, get this injunction granted, or get, yeah, yeah.

0:36:58 Thomas: Well, I'm sure if the Emoluments Clause doesn't apply apply to presidents, then I'm sure you can get a way to, you know, find a way to have those ethics clauses not applied. No, just kidding. Just kidding.

0:36:58 Andrew: Um, no, anyway, you may remember back from our discussion that in order to get an injunction, right. You have to, uh. Demonstrate. Right. The following four things. Right. Right. And I'm going to I'm going to leave out number one because that's that's where the argument is. But you have to demonstrate number two substantial threat that the plaintiffs will suffer irreparable harm if the injunction is not granted. Number three, that the threatened injury outweighs any damage that the injunction might cause the defendant. And number four, that the injuction will not fail to serve the public interest. Right. And all of those. I mean, it's sort of not worth going through them because you could you could come out either way on the public But in particular, the irreparable harm, right? I think businesses are going to suffer an irreparable harm if rule is invalid, right, then all of the businesses that have to raise the salaries of their exempt employees from $23,000, which is the current level, to $47,476, right? Like that's, yeah, yeah.

0:37:55 Thomas: Mm-hmm.

0:38:10 Thomas: That is a huge difference. I don't think I caught that it was that low before.

0:38:13 Andrew: It is, it is, yeah more than twice. Um, Yeah, the current level is $455 per week, which is just over $23,000 a year. And the new level is $913 a week. Now the old level is low because it, hasn't you been increased in a very long long time

0:38:14 Thomas: Wow. Okay, yeah. Yeah. Well, I guess that explains the 230,000 comments or whatever. A lot of concerned people.

0:38:33 Andrew: Um yeah right um right So, uh, I think those those conditions are not hard to meet. Um, the argument that I think is very, very difficult to sustain, and was shocked that they were able to form shop and find any judge who who would sustain this, is, uh, remember, when you're seeking injunctive relief, the first element and the most important is you have to show a likelihood, a substantial likelihood of success on the merits, right? And we've talked about how it's a little bit weird, right, like you're at the outset of your case, how are you going to do that? So, you know, if you lose on an injunction, that doesn't mean you're going to lose on your case.

0:38:39 Thomas: Okay. Yeah. Right.

0:39:16 Andrew: But if you win on an injunction, it means you've persuaded a judge, like, gosh, you you know, even without any evidence, uh, you think you're likely to win already. Um, how can you do that? And how did these plaintiffs do that? Um, answer is the Chevron deference argument that I talked about before.

Um, so I will say that the uh plaintiffs first made an argument, uh, that said the FLSA does not apply to the states, um, and this argument I think is being preserved, uh, to a challenge at the Supreme Court level, right, like, because there's a very clear case, um, it's a 1985 decision that says Garcia versus San Antonio Metropolitan Transit Authority, that's 469 US 528, um, that says, uh, the FLSA does indeed apply to the States, um, it's it's crystal clear, no judge, particularly no uh U.S. district court judge on earth is going to say, "Well, you know, the the Supreme Court is great and all, but uh, I think they were out to lunch on Garcia."

Well, no, like, you know, you have to apply, there's clear precedent. This is a good example of you and I have talked back and forth about the good faith modification to the existing law argument. And this is a good illustration of that, that the plaintiff said, "Hey, look, we don't think Garcia is good law. You should say the FLSA doesn't apply to the states." So, you throw this rule out. And the court said, yeah, not buying that argument.

0:40:44 Andrew: Unsurprisingly, it's there so that if this case gets to the Supreme Court, which I don't Think it will. But if this The Supreme Court would then have the opportunity to consider that argument and maybe overrule Garcia. Right. So, you know, lawyers who bring cases of public interest do frequently have to engage in that three dimensional chess of, you I want to make an argument now, uh, that may not come into play for five years.

0:41:10 Thomas: Yeah. Just in case later on. As

0:41:13 Andrew: Yeah. And, and yeah, no, That was exactly right. Um, I see that, um, you know, not infrequently in some of the cases that I've done where, you know, I, uh, even at the state court level, you would say, here's an argument that nobody but the Maryland Court of Appeals, which is our state, state Supreme Court, is going to like. But I want to make sure that I make it now, because if you don't make an argument at trial and you don't raise it in your first appeal, it is not what they call preserved on appeal. And so you

0:41:13 Thomas: We saw with the slants, actually. Yeah.

0:41:44 Thomas: Yeah.

0:41:44 Andrew: Can't make it later on. So you've got to get kind of everything out, even your most creative stuff early on in order to have a chance at the Supreme Court taking it up later. So an argument that said Garcia's bad law. In fact, this judge says, you know, notwithstanding that there's some criticism of Garcia, and then the judge says, however, no Supreme Court case has specifically overruled Garcia. The Supreme Court has declared that lower courts must follow precedent and allow the Supreme Court to overrule its decisions with a citation to a case. Therefore, this court will follow Garcia. And then the argument that they did win on, though, was this Chevron deference argument.

0:41:45 Thomas: Okay. Sure.

0:42:25 Thomas: Alright, well, hold that thought, everybody, remember where we are, because we're gonna have to call it there for part one of today's episode on the FLSA, and we'll find out what the Chevron deference argument is on Friday, meanwhile we've got more segments to get to, lots of good stuff still coming up in today's episode, including, are you a cop? Up.

0:42:49 Clip: If you ask a cop if he's a cop, he's like obligated to tell you. It's in the Constitution. Constitution of America?

0:42:59 Clip: So, I should go ahead and ask. You a cop?

0:43:03 Thomas: All right. I'm glad we get to do this segment again. Are you a cop? Uh, this is interesting because you've answered this before. I'm cause I thought I asked you this before, but the, the today's topic for, are you cop is can Donald Trump revoke Obama's commutation of Chelsea Manning? That's something that was pretty recently in the news. I guess it will have been last week by now. But I thought I asked you in the episode about pardons, can a future president undo, or even the same president, I think I asked, can the same President undo a pardon? And I'm pretty sure you said no, like absolutely not. Is this different?

0:43:38 Andrew: No, so you are 100% correct, it we answered the question on the pardoning power, we received the question about Chelsea Manning, apparently there's a story going around, uh, on right-wing sites about, uh, Donald Trump coming in and, uh, undoing the commutation of Chelsea Manning's sentence, which was, uh, just put into effect by President Obama yesterday as of the time of this recording. Um, as you correctly note, the commutation power, commutation is just, uh, reducing the sentence but not eliminating, uh, as opposed To A pardon. Which Yeah.

0:44:08 Thomas: So different from a pardon. Okay. Yeah.

0:44:10 Andrew: Well, but it is an aspect of the pardon power, right? So It's less Than A Pardon

0:44:14 Thomas: Okay, comes from the same authority, like comes fromthe same place.

0:44:18 Andrew: Exactly correct, uh, and the rule applies just as you've described it, which is to say no, uh, once that commutation, uh, has been delivered, and, and with commutation there is actually some, uh, collateral litigation that, that suggests that, um, you don't even have to accept it, because Right, remember We Talked about How with A Pardon Because a pardon governs perspective, perspective, uh, as well as unprosecuted conduct, right? So Gerald Ford pardoned Richard Nixon. Richard Nixon had not been arrested, right, it was possible that he could have been, and Ford pardon him so that he would not be. So a pardon has to be accepted to become effective. That, that was what we talked about in that episode. When you commute someone's sentence, sentence, yes, there is a supreme court supreme court case, yeah.

0:44:37 Thomas: Oh, right. Yeah, we talked about that. That's interesting.

0:45:00 Thomas: Yeah. And there was case law on that, right? There, there was a case that said some, yeah, they, you have to accept the pardon. And, and I remember it kind of admits guilt a little bit, right. Like it has to, and that's a reason that people might entirely admit skill.

0:45:14 Andrew: It it entirely admits guilt, yes, Yep. So when you commute someone's sentence, they're already serving a prison sentence. So, so there is some law that suggests that you do not even have the the delivery and acceptance phase, right. That just commuting, stroke of the pen, that's sufficient. But either way, you by this time, uh, that commutation has been delivered to Chelsea Manning. She has accepted it. It will go into effect and and she, she will be released.

0:45:17 Thomas: Okay. Oh, excellent. Okay, I guess that what remains to be seen is whether or not, you know, he'll maybe pardon Edward Snowden. Do you have any any indication, does this for you to your mind, does this provide any evidence or indication that that might happen, or is it totally kind of different situation?

0:45:59 Andrew: I think I think it gives some evidence to the contrary. Right. Like, in other words, I think it would have made sense to announce both commutations slash pardons on the same day, if, if you were going to do that. You know, I don't have a great feel for it, but because this is going to air the Tuesday after President Obama, Obama is no longer in office.

0:45:59 Thomas: Oh, yeah, True.

0:46:26 Andrew: I will make if you ask me to make the prediction, my prediction would be that he does not pardon Snowden. But that is, that's more of a gut feeling. But but but if you asked me to prediction, there it is.

0:46:26 Thomas: Yeah, Well, that makes sense, though. I think I think your Your argument

0:46:37 Andrew: And you can hold me to it.

0:46:37 Thomas: Makes sense, but we'll see. Who knows? All right. Now is that part of the show where we've got to thank our wonderful, totally amazing, awesome patrons over on Patreon.com/law.

0:46:38 Andrew: Yeah.

0:46:50 Andrew: Yeah. We received a ton of new patrons last week. We really appreciate this. We have not done a huge plug for patronage recently. And I would say, you part of what supporting the show for as little as a dollar an episode does, it enabled Thomas to retire from his job and take this on full time. It enabled us to go twice a week on this show. It enables us to continue to devote the amount of time that we do to the show and bringing you sort of the best product that we think we can. And so, um, you know, we say this to everybody. If, if you're not in an economic position to support the show, uh, don't feel bad about that for a second. Continue to listen, tell your friends about us, share us on social media, you know, five star us on iTunes, that sort of thing.

0:47:36 Andrew: Uh, but it, you know, if you can toss us a buck or two, um that's, it's a huge, it makes this endeavor possible. It really does. So Um, with that in mind

0:47:42 Thomas: Not to mention all the benefits that You receive, like the monthly Law'd Awful Movies, and we're actually even talking about, we're trying to plan another thing to be able to give our patrons on a monthly basis, just because we really do appreciate the patronage so much, we want to make sure you're getting all the bang for your buck and all the extra content

0:47:44 Andrew: Oh which are so good and I do, I do newsletters sometimes yeah We you get early answers to Thomas Takes the Bar Exam, you get to, you get to go onto the Patreon boards and send us messages and be part of the cool kids. I mean, it's uh, it's it's pretty well, anyway, we've given that the hard sell. That's, that's enough of that.

0:48:06 Thomas: Yeah Patreon.com slash law so let's thank our new patrons for this week thank you so much much. Kirby Dickens, Robert Ray, Cindy Abawi, Chris Ellis, Tom McMillan, Dalradian, James Devine, and Stink Vomit. Thank you so much, StinkVomit, I never thought I'd say that. Andrew, how about you tackle the rest?

0:48:36 Andrew: Yeah yeah thank You to Donald Evan Case, Danny Baker, Laura Miller, Karen VS Crafty, Caitlin Gray, Michael, and Sage Scott. Thank you all very much. Oh, excellent

0:48:53 Thomas: Yeah, thank you guys, Sage Scott is somebody I know, actually, and I also want to point out that Danny Baker also has at Combat Nonsense in his name, and you You can definitely feel free to use your patronage to plug something. If it's in your name or if it's a, you know, website, whatever. I mean, we're happy to, uh, to toss you that little plug in exchange for a very kind donation. So thank you so much.

0:48:58 Andrew: Yeah

0:49:17 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:49:23 Thomas: All right, Andrew, I have to admit, I've really been nervous about this one. This, in my opinion, it seems like was maybe the most difficult question I've had yet. I don't, there's not really much I can draw on in terms of my instincts. Well, we'll see. Maybe I got it correct. Let's find out. But I'm a little worried. I'm little worried for this setback. Let's figure out how am I doing on question seven of TTTBE.

0:49:49 Andrew: OK, this is a question about hearsay. And it has to do with a painter working for a construction company is on the premises, and there's an accident, uh, when a section of the house falls down, and the painter shouts out, "I knew that was gonna happen, those idiots failed to reinforce the wall, it's all their fault." And then the owner of the building files against the, files a lawsuit against the construction company and wants to use the statement from the painter as evidence. Um, and the question is, uh, will the court sustain the company's objection to the admission of the painter statement? Um, and this, the reason, Thomas, that I think you, you found this a, um, a challenging question, uh, is that this is testing a rule of hearsay, um, and you, having despite your uh lofty standing at Harvard Law School, I don't know how often you studied the Federal Rules of evidence, um right

0:50:49 Thomas: Yeah, I just didn't really get to that in my law career, my law student, my education at prestigious Harvard Law. But yeah, what are you going to do? You can't can't know everything.

0:50:58 Andrew: Um So just kind of quickly to go over the answers, we had, uh, A, the objection will be sustained because the painter is not qualified to make such statements regarding non-painting duties. B, because yes, it will be sustained, because the painter is not a participant as the negligent party. C, no, it will not be sustained, because the painter works for the same company as the negligent workers, and he made his statements within the scope and course of his employment, which was the answer you chose. And D, no, because the painting may testify as a subcontractor as to what he observed while on the location. Um, so kind of immediately you can rule out D, right, because the question is about putting the painter's statement into evidence, and we know that it is hearsay, right, because what we want to do is put on the statement and not the painter, right? Um, so whenever you want to take somebody, something someone said, and put it on without putting them on as a witness, you are talking about putting on hearsay, um uh-huh

0:51:59 Thomas: Right. Well, couldn't. So I think I know what you mean. I think I kind of thought this, but let me know if I had it wrong for D. I was thinking you could just do both. Right. Like that wasn't a reason that.

0:52:06 Andrew: Yes yeah, no, you absolutely There's... there's nothing to stop you from calling the painter as a witness, but, but in this kind of case you don't want to do that, right, because the painter works for the company that's being sued and will be represented by the lawyer for the country, and so he's going to have a story about, like, well, this, this is why I said this and this and that, you know? And so, right.

0:52:11 Thomas: Yeah. Yeah. Right, right, right. Right. But I just want, what went off in my mind was, sure, that doesn't make sense that you would call him as a witness because, yeah, he works for the company you're suing. But it didn't make logical sense to me to say the reason that you, you, can have this admitted is that you could call him. As a witness, like, it didn't logically, that didn't make sense to me.

0:52:51 Andrew: I agree with that. So the, the question then becomes, is this an admissible form of hearsay? Right. And the yes answers, I can see why they're tempting, right? Right. The first yes answer says he's not qualified. So, you know, why would we accept the hearsay of somebody who's not qualified? And the second says yes, because he's not a participant. But as it turns out, I wish we had a drum roll sound. Maybe you could insert this dynamically.

0:52:52 Thomas: Or OK. Hmm.

0:53:16 Thomas: I know. No. Hey, I can put in a drum roll sound. Okay. Post-production. I'm putting in a drum roll. So I'm ready. Drum roll, please.

0:53:20 Andrew: As you get this question correct. Correct.

0:53:27 Thomas: Yes. Oh yes. Gosh. So good.

0:53:30 Andrew: So federal.

0:53:31 Thomas: You know, I'm glad we got that drum roll Sound in there to really punctuate the fact that I got this right.

0:53:36 Andrew: So Federal Rule of Evidence 801 D two says that you can introduce as hearsay at trial, an opposing party statement, and the qualifications are that the statement must be offered against an opposing party, and A, it was made by the party in an individual or representative capacity, which is to say the painter worked for the subcontractor, so that he represented him. B is, one, the party manifested that it adopted or believed to be true, right, he believed it to be sure at the time. C, it was made b by a person whom the party authorized to make a statement on the subject, okay, that doesn't apply here. D was made, D, by the parties agent or employee on a matter within the scope of that relationship?

0:54:01 Thomas: Right. Oh, sorry. So these are oars. These aren't ands.

0:54:21 Andrew: Yes. Sorry.

0:54:22 Thomas: Okay, gotcha.

0:54:22 Andrew: Yeah. Right. D was made by the party's agent or employee on a matter within the scope of the relationship while it existed, or E was made by the parties co-conspirator during an infurtherance of the conspiracy. Um, so, uh, obviously some of those do not apply. Uh, some of that was used, uh, as attractive distractors within, within the question.

0:54:44 Andrew: Uh but the, but the fact that it was made by a party witness, uh, and is being offered for evidence against the party who made the statement is sort of classic, uh applicability of hearsay. Um, and you managed to get that correct. So I don't know.

0:54:44 Thomas: All right.

0:54:57 Thomas: Yeah, I just was feeling like Like logically, you know, maybe what would happen is the defense could call him to the stand or whatever. And he could say, oh, yeah, I was wrong. I was drunk. I have some excuse. But the fact but it just seemed right to me that it would be able to be heard because he was like working, currently working for that company in his capacity. That that made intuitive sense to me. And fortunately, this for once or for I don't know what, four times. What's one of my record now? Five of seven?

0:55:29 Thomas: Yeah. Fortunately, for a fifth time, my intuitions happen to be right. But if someone was just, if the same guy was off the clock and just walking down the street when this happened, can I ask you, in that case, would it be admissible?

0:55:09 Andrew: Yeah. Yeah, you are now five of seven.

0:55:47 Andrew: No. And,

0:55:48 Thomas: Right, right. I didn't think so.

0:55:48 Andrew: And that's, that's exactly right. Yep. And so, you know, you've also applied sort of subconsciously a pretty good principle that we've seen at work already on a couple of these questions, which is to say a difference between understanding the weight of evidence versus excluding something as evidence, right? Right? And excluding something as evidence is a pretty drastic remedy. It's not to suggest that it doesn't happen. It happens fairly frequently, even in civil trials. It's always sort of good to ask yourself when you're evaluating a question like this, there a remedy short of of exclusion that would make sense here. Right. And, you know, if, if there's a, if there's problem, right. And so, you now, with respect to the contemporaneous utterance of, oh my God, you guys, you, I knew you should have, right, there is a remedy, right? And that is, put him up as your own witness and have him explain the context of that statement. But we're going to keep the statement in.

0:56:08 Thomas: Yeah, yeah, yeah.

0:56:48 Thomas: That's exactly what I was thinking. Wow, you know what? This show is making us all too good at these bar questions. I'm told that no illusions over at Scathing Atheist just gets all of these right. So I feel, you Know, I feel less good about my five of seven. But you know What? On the plus side, I think Andrew has made us all a lot better at these kind of questions. So really cool.

0:57:08 Andrew: Before we ask Friday's question number eight, I'm gonna, gonna try and get Noah to publicly tweet his answers. He's told me he's gotten them all right so far, so that's a that'a pretty big claim, and uh, let's see if we can't uh, put our tweets where our money is.

0:57:14 Thomas: Well wow if if he if he has that I'll be interested to see if he He has gotten them all right. I think we can definitely credit one Andrew Torrez for informing him so well through this show. All right. That's all we've got for today. I just want to repeat again, the most important thing that we covered during this show is that I'm five out of seven for the bar exam. I'm well on my way to passing and I'm going to be wearing myself a powdered wig very soon. A few short years of bar questions. I should be wearing that powdered wig. Uh thank you so much andrew and thank you so much to all the listeners all our patrons over at patreon.com/law and we'll have to say uh why don't you take it away andrew what should people stop doing there you go okay

0:58:03 Andrew: They should stop breaking the law, asshole.

0:58:14 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.