OA38: FLSA and Exempt Employees, Part 2

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 38. I'm your host Thomas Torrez and that over there is Andrew Torrez. How are you doing, Andrew?

0:01:26 Andrew: I've done great, Thomas. How are you?

0:01:27 Thomas: I am doing amazingly. Happy to be here with everybody on a Friday episode. You know, first things first, I forgot to put the winner of the last bar question in Tuesday's episode. I messed up, my fault. So here is that winner. Andrew, of course, recorded that and sent it to me and I just messed up. So, here's that recording.

0:01:48 Andrew: Yeah, a lot of folks got this one wrong. A lot of people went with A, including, I think my favorite answer for A was Jennifer, who is at jeckert79 on Twitter, who says, Answer A, because dude's a frackin' painter, and what does he even know about wall support? Which I thought was hilarious. But our winner, I'm going to go with Atheist Adrian, that is at Atheast Adrian on Twitter, who says, I am going with C, that the courts won't object because he, the painter, may have witnessed the event under employment. Um, there were a couple of other folks who got C correct, uh, not counting our lawyers who routinely play this, who, uh, who managed to get the question right. Uh, but I liked, I, Adrian, Atheist Adrian's, it was, it was nice, it was pithy. Uh, a reminder, I think we only had a couple of people play on Facebook. Um, you can pay uh, both on Twitter and on Facebook. So for, uh, question number eight, which is going to drop on Friday, um, if you want to play on Facebook, uh, remember that you can

0:02:45 Thomas: All right, thank you, disembodied recording of Andrew. I messed up. Thanks for getting that in and congratulations, Atheist Adrian. So let's move on to the rest of the show.

0:02:55 Clip: He who questions training, only trains himself at asking questions. What?

0:03:03 Thomas: Right, somewhat Prominent listener Noah L, who may be found on such excellent podcasts as Scathing Atheists and God Awful Movies. Noah has a, has a very interesting question. I can't wait to hear what your answer to it is. In regard to the discussion about minimum wage of tipped employees, and listeners will recall we talked about that, hence what Andrew did, a little correction on, on Tuesday, just to rub that in a little bit more. But in terms of minimum wage, or the wage you can pay tipped employees, being below minimum wage because it's assumed that they're going to make it up with tips, that sort of thing. Noah asks, as he understands it, federal anti-discrimination laws make it illegal to pay a minority employee less than a non-minority employee, even if that payment disparity is unintentional.

0:03:54 Thomas: Mountains of evidence support the fact that black waiters get significantly lower tips than white waiters. Shouldn't this make tip-based pay illegal? If not, why not? I would like to add on to that, to tack on to, I believe female waiters, waitresses, uh, they also get more tips than male, and gender would also be a protected class, right? So would that factor in as well?

0:04:17 Andrew: On the same aspect of analysis as the race, yes. I love this question, not just because we love NOAA, which we do, but because we're doing an FLSA, We're doing two FLSA episodes and the intersection of the FLSA and the statute to which NOAA is referring, we have referred to on numerous occasions. That is Title VII of the Civil Rights Act of 1964. That is, the citation is 42 U.S.C. 2000 E-2. And what Title VII prohibits is it prohibits employer discrimination in any aspect of employment. And that includes sort of the obvious, the hiring, firing, the level of compensation, how employees are classified, recruiting, testing, access to training and apprenticeship programs, benefits, disability leave.

0:04:20 Thomas: All?

0:05:16 Andrew: It's a comprehensive statute. And so I thought it made for a really interesting question to sort of look at the intersection with the FLSA issues. So let's start with tipped employees, right? Let's throw back to last week. Um, terms of the FLSA, the hypothetical employee who is receiving fewer tips on the basis of his or her gender or race would only have a case under the FLSA if their specific tips plus their base salary failed to add up to the minimum wage. So even if there was a disproportionality, the FLSA does not test proportionality. Right. The FLSA only tests whether you meet the statutory minimum wage and the maximum hours provisions.

0:06:08 Andrew: Right? So the claim you would have to bring would be a claim under the Civil Rights Act as we're talking about. So there's no, in other words, the fact that there is, yeah,

0:06:18 Thomas: So? Even if The conclusion of his question were true, then it still wouldn't be the FLSA. You're saying it just would be a different law that would govern this Particular

0:06:28 Andrew: It would be the Civil Rights Act of 1964, specifically Title VII. And I want to add one more provision that is, I think, an employer solution if there were these sorts of lawsuits that is provided under the FLSA, even though it might be particularly unpopular with the employees, and that is tip pooling. Yeah.

0:06:28 Thomas: Okay. To

0:06:49 Andrew: The FLSA specifically provides for tip pooling, and that would certainly equalize the problem for any discrimination. So the question would be, the way I would put all of this together would be, could you maintain a lawsuit against your employer for the failure to pull tips, right, under Title VII of the Civil Rights Act of 1964, or would the employer have the discretion to be able to say, no, this is what we're doing? And let me say, think I this is a really, really interesting case. I'm going to come probably in favor of the employer, not frivolous. Right. So

0:06:47 Thomas: Pool Tips, yeah. The Civil Rights Act Yeah. Right.

0:07:32 Thomas: Right.

0:07:32 Andrew: The difficulty. So what you have to do to prove an employment discrimination case is you make out a prima facie case. Right. And a prima fascia case is I am a member of a protected class. Right. Race, color, religion, sex, national origin. Those are the five protected classes under Title VII. We've talked about how different state laws may go further than that, particularly California, but for purposes of the federal act, we're limited to those protected classes. Would add that there is some interpretive authority that has included, recently, Obama's Department of Labor has included sexual orientation and being transgendered within

0:07:32 Thomas: Gender Identity

0:08:17 Andrew: The Concept of sex. Uh, but that is, that's a position taken by the Department of Justice, the EEOC, and the Department of Labor, and so that is something that is very much up in the air. You know, when we say elections have consequences, well, I think that is going to be a consequence. I do not imagine that, uh, lawyers for the Trump administration will continue to make that argument. Um, there is some case law law supporting that argument. There is some case law going the other way. Um, there has been legislation pending, uh, in the Congress. It gets renewed every year for each of the past six or seven years. It is called the Employment Non-Discrimination Act, or ENDA, E-N-D-A, uh, that would amend Title Seven and add, uh, sexual orientation as a protected class.

0:08:17 Thomas: Yeah,

0:09:08 Andrew: Um until Until that is amended, there is no statutory protection in 30 states. There are only 20 states, as far as I know, that have statutory protection for sexual orientation and even fewer for gender identity under state law. So, you know, it is legal in 30 States. States, again, uh, I mean, this as a call to activism and not as legal advice. Like if you're an employer, you know, please do not fire people on the basis of their sexual identity. That makes you a monster. Um, But in 30 states, there's, there is no statutory prohibition on that. Um. There may be some ambiguous case law. Uh. You know. But there, but there are are not solid protections for workers. So, you It can literally be the scenario of the employer saying, No, sorry, like, our business doesn't approve of your kind here and, and firing you.

0:09:59 Andrew: And there are, are many states, many jurisdictions in which, you know, sadly, that that's that a reality. So not to not to get get too much of a downer on that. How do you prove a Title VII case? You prove that you're a member of a protected class. Those are the five classes. And then you prove that you have been discriminated against in some way, which is very expansive, right?

0:10:21 Thomas: You have to, is the key going to be, you have proved to be discriminated against by your employer, and these, the employer doesn't control tips. But I'm guessing, I guess the question is, does not pooling the tips count? Well,

0:10:28 Andrew: Yeah, And I'm going to get to that in phase two, but in the prima facie case phase, I don't think that's a sufficient argument, right, like the employer doesn't control that, I don't think is a sufficient argument, because we have cases involving, um, all sorts of things that, um, to me seem fairly analogous to tips. Right, like use of, um, the company gym, for example. Right, like there's a, there'sa case that involved a company that said, look, we've we got eight male employees and one female employee, and like the guys are in there in the shower all the time and we don't want to have to put in another shower for the women. And, And, obviously, saying, you know, men can use the gym whenever they want and women have to, you know, my only female employee has to, you know, check in and different policies apply to her, right?

0:11:20 Andrew: Like that, you know, that was held to be a violation of Title VII. Sort of the paradigmatic case of, you know, many of these kinds of cases is disparate treatment by supervisors, right? So you have, you you know, three employees who are habitually late, but you know what? Only the black guy ever gets written up for it. Right. Um, that, that's an incredibly, uh, sadly common occurrence. Uh, and you know, it's a, it's another area where, you know, you're not talking about a direct policy, right? Like there's a policy, is everybody has to be here at eight in the morning, but the, but the application is, yeah, but you know, Biff here manages, it comes in at 8:05 and he gets exemplary performance reviews, you know, whereas another employee gets in at 8:03 every day and has been written up four different times and Given Demerits

0:12:09 Thomas: I Know, you're Just making The prima, uh, Facie case, but both those examples you bring up are still the employer doing something, and the tips thing is, you other people doing something, like the, the clientele Or whatever. Hmm.

0:12:10 Andrew: Yeah. Yeah. Yeah. But the employer is still doing things here. So, for example, one of the things the employer is doing is taking a tip credit against the, uh, minimum wage requirements of the FLSA. Right, like And, you know, the employer is also, you know, maintaining the, uh, know, credit card machine, right? Like, I, I don't know that, um, don't the employer saying, um, I've got my hand over my eyes, hey, whatever the customers do is fine with me, right? Right? Like, because the employer is relying on what the customers do in some way to comply with the FLSA. So I think you would, I think he would get across the, um, the prima facie, uh, case threshold. Um, as you point out, it's, there's nothing that's directly on point because of that lack of control. Um. And so, you. There's that tension at step step one. Uh, and then step two is, um, the burden shifts to the employer to justify the basis, uh, for the discrimination or distinction.

Um, and in some cases, you know, you can do this, right. There's, For um. Example, uh if I have as work, I manage an Amazon fulfillment center, right? And I have a policy that says in order to work as a senior fulfillment professional, you have to be able to lift 65 pounds over your head in order to put the heavy boxes on the top shelf.

0:12:31 Thomas: Okay. Okay. Yeah.

0:13:45 Andrew: And senior, uh, fulfillment professionals get paid 10% more than everybody else. And as it turns out, um, they're overwhelmingly male, right? You could bring a case, you would, you would fall within a, you would meet your prima facie burden if you were a small woman who was unable to lift 65 pounds over her head, to say, hey, look, like, I'm a woman here. I've been working here just as long and I'm making 10 percent less. You would meet your prima facie case. But Amazon might be able to refute that prima facia case by saying, yeah, but we're not discriminating against you on the basis of you being a woman. The job duties require you to lift 65 pound boxes, put them on the upper shelves. We're not going to let you do that in such a way that is, you know, going to to cause you to have an injury.

0:14:32 Andrew: Uh, and so, you as it so happens, you you as a woman are not in this position where, you know, men are, are occupying it. Uh. But it, you know, if it truly is, it's called a BFOQ, a bona fide occupational qualification. Um. If there truly is a good reason for it, uh. Then the courts can say, yeah, despite the fact that this has turned into a discriminatory pattern, we think there's a good underlying reason for And I'm not saying that you would always win as Amazon with the, know, the lifting the box case, right? Like the burden actually, the way you go forward in this case is if the employer meets their burden of giving a reason, then the burden shifts back to the plaintiff to show that that reason is pretextual, right. Right. And you could do that, too. You could say, yeah, look, like there's one sixty five pound box that comes in every 10 years.

0:15:19 Andrew: But by and large, we're putting, you know, three pound boxes. And this is just being used, you as a pretext to keep me down because, because I'm not a member of the old boys club and and those cases get get one, too, right? I mean, it again, remember when the burden shifts, what we mean by that is that that uh, party must prove that element at trial. Um, and that if, if it's 50, 50, or if there's insufficient evidence, the default goes the other way, right? So it's not, it's Not sufficient to say, well, it could be a pre right. You have to actually prove that. Uh, but you can, So, so right. That's the way that those title seven cases kind of ping pong back and forth prima facie case employer gives a reason. If it's a sufficient reason, then the plaintiff goes back to prove that it's pretextual.

0:16:06 Andrew: So So, um, in addition to the employer control problems in the prima facie case, uh, I think where you really would have a difficulty, uh would be on the second stage of the application, which is, uh the employer is going to to say, the reason that I have a tip-based system is because there is a significant differential in, and here are the studies that prove that having tipped-based service employees increases the kind of service. That's what I want to do. This is customary in the industry. So what I would say, if you're interested in that, and I think that that's likely to be a a successful argument, right? I would point out that a lot of the predicate of that argument to do with custom and practice.

0:16:56 Andrew: And so, you know, making it be known that the practice of tipping has a grossly disparate effect on African Americans, has a grosely disparate effect by race and or by gender can change how a court would view that, right? Like if lots of restaurant employers know that tips are handed out in a discriminatory manner, then, you know, that might change the way a court Would view a case like this in the future. So I thought this was a great question. Yeah.

0:17:29 Thomas: So, really Good Question Definitely Some, some ambiguity there. Yeah, sounds like you're not 100% confident that the if an employee brought this case that they wouldn't be successful, but you would bet on the employer winning, but, but it sounds like it's a very reasonable case. Yeah.

0:17:47 Andrew: Yeah, I think that's right.

0:17:49 Thomas: Interesting. Well, great question by Noah, thank, thank you very much. It was a very thoughtful question and a good answer.

0:17:59 Thomas: It's time for the main segment of the day, which is part 2 of Andrew's lesson on the the FLSA. You might recall we were talking about the fact that Andrew made a prediction a long time ago, several episodes back, that these changes in the law are going to take place, changes in the rules where employees of a certain level of compensation will have to be given overtime. And actually lots of other people asked how can he be so sure with the incoming administration, so Andrew has been explaining that to us in part one, and you might also recall that where we are in the story is the rule change was imminent, it was challenged in the courts, some conservatives found a certain judge to grant a an injunction, which is a little sketchy, and Andrew was just about to explain what argument was successful at least for this judge.

0:18:58 Thomas: And what he said was that the argument that was successful was the Chevron Deference Defense. ARGUMENT So here in part two we're going to begin with Andrew explaining to us just what is this Chevron deference defense. Argument.

0:19:11 Andrew: What is Chevron deference? It says, a lawsuit, you look at how an agency has construed the meaning of a law, A the court must use a two prong test to determine how that agency's determination is to be evaluated. The first step is to ask whether Congress has directly spoken to the precise question at issue. And the law says if the intent of Congress is clear, that's the end of the matter for the court as well as the agency must give effect to the unambiguously expressed intent of Congress. And that comes from Chevron versus National Resolution Defense Council, which is 467 U.S. 837. That's the case that gave rise to, that's why this is called Chevron defense, right?

0:19:57 Andrew: After Chevron case. But second step, and remember, we talked about that at the beginning of this, right, Right. Which is to say, because the agency's decisions, their authority comes from an express grant by Congress. Right. Like an executive agency isn't an elective body. They have no inherent power to make laws. So if Congress has said you can only do X, then the agency can't exceed the scope of that authority in construing a statute. If they have, thenthe court shouldn't give that any weight whatsoever. So think back to our firearms example. Right.

So Congress says, Department of Alcohol, Tobacco and Firearms, I want you to identify dangerous semi-automatic weapons. Department of alcohol, tobacco and firearms issues a lengthy report with, you know, numerous threatening references to the UN and, you know, Jesse Ventura sort of opining at great length about how awesome gun ownership is and saying, well, therefore, I think this statute means nothing. And then you file the lawsuit and you say, don't know what's up with the Department of Alcohol, Tobacco and Firearms, but they were way the hell off the reservation. You can say that in a lawsuit. Trust me, it's fine. Don't take that legal advice for a podcast.

And the court under Chevron defense would look at step one and they would say, what What was the grant of authority here? It was to define dangerous semi-automatic weapons. They exceeded that authority. Therefore, their interpretation gets no difference, right? Step two, if Congress has not unambiguously expressed its intent regarding the precise question at issue, then the court will defer to the agency's interpretation unless, and this is again, quoting the Chevron case, it is arbitrary, capricious, or manifestly contrary to the statute.

0:20:49 Thomas: Okay.

0:21:37 Andrew: Okay. OK, so, again, that's a really, really the words when you see arbitrary, capricious or manifestly contrary to the statute that excludes things like just plain errors. Right. So, for example, an agency could say, you know, think of our our let's go back to our gun example. Suppose the AK-49 is on the list and there's no such thing as an AK-47. AK49, right? Well, you could say, look, they put an AK49 on the list. So therefore you can't trust these guys when you're interpreting the statute. And ATF could come back and say, yeah, you know what? Like we screwed up. There's no AK49. Sorry about that. That's just a plain error, right. That's not arbitrary, capricious, uh, or, or manifestly contrary to the statute we're going to take off the AK49 because obviously we screwed that one up, but our, our interpretation should should still be given deference. Uh, and 100% of the time the court will be like, yep, yep. Yeah. Right. Like just a typo or just a mistake or just to whoopsie doodle. Like, right.

0:22:33 Thomas: Yeah. That's That's Just The Reality of government employees. Let's face it.

0:22:39 Andrew: Yeah, not So now what are the plaintiffs arguing? The plaintiffs, in order to defeat this Chevron defense standard, right? Because you have an application of the statute by the Department of Labor, right, like that's what they're challenging in and of itself, right. And so So presumptively, it's entitled to deference. And in order to defeat that, the plaintiffs have to prove that Congress unambiguously expressed the intent to not have the Department of Labor do what they're doing. OK. And in particular, plaintiffs are arguing that the congressional intent for for executive, administrative or professional was that they could only issue rulemaking as to the responsibilities of the job.

0:23:28 Andrew: Right. The job duties, but not to the job salary. So they have to win on that argument. Right. Like if they don't win on the argument that Congress specifically intended only for the Department of Labor to be able to define the kinds of job duties and not the salary in defining those executive administrative or professional employees, then you defer to the agency's findings. Right. So what argument what arguments were made and what arguments were accepted by the court? I'm going to read from the court's decision granting the injunctive relief right here. The statute, meeting the FLSA, is not silent in answering this question as to what constitutes an employee employed in executive, administrative, or professional capacity.

0:24:15 Andrew: This court assumes Congress's intent from the plain meaning of a word. When the statute does not define a term, because section 213 does not define the terms executive, administrative, and professional, the court considers their plain meaning at or near the time the statute was enacted. And then there's a citation. Beyond the law itself, dictionary definitions inform the plain meaning of the statute. The Oxford English Dictionary defines executive as someone, quote, capable of performance, operative, active in execution, energetic, apt or skillful in execution. And then I'm not going to read the rest of these stupid dictionary definitions. So this judge then says, after reading the plain meanings together with the statute, it is clear Congress intended the EAP exemption, that is executive, administrative, professional, to apply to employees doing actual executive, administrative, and professional duties.

0:25:02 Andrew: In other words, Congress defined the EEP exemption with regard to duties, which does not include a minimum salary level. The statute's use of bona fide also confirms Congress's intent. Bonafide modifies the terms, executive, administrative, and professional. The Oxford English Dictionary defines bona fide as in good faith with sincerity genuinely. Okay. So that is, and I am not making it up, sum of this court's analysis as to congressional intent is I looked these words up in the Oxford English dictionary. Will tell you, so there There was a motion for reconsideration, which goes back to the same judge that issued it in the first place, in which the Department of Labor said, are you kidding me? Like, you really might want to rethink this. And the court said, yeah, yeah.

0:25:44 Thomas: Did They say, Like, here the dictionary defines reconsideration as what were you thinking, can you please uh reconsider.

0:25:55 Andrew: They said that you messed this up. And the Court said, no, we're not. We're not persuaded. And again, on this ground, right, the likelihood of success on the merits. They said, no, we're not we're not persuaded by that. The Fifth Circuit has stated that a movement need not always show a probability of success on the Merit's. Instead, the movement need only present a substantial case on the merit's when a serious legal question is involved and show that the balance of equities weighs heavily in favor of granting the stay so that the The case has been fast-tracked to the Fifth Circuit Court of Appeals. Oral arguments will be heard on that case, I believe, at the end of the month. Um, This will get resolved, uh relatively quickly. Uh, but but, do not believe, uh that the that that, uh linguistic argument, uh is likely to carry a lot of weight, uh at the, uh fifth circuit level.

0:25:58 Thomas: So,

0:26:50 Andrew: Um, I, I think that, there are a number of factors that sort of go into, uh trying to asserting congressional intent. And this is another good overlap with our discussion with Seth Barrett Tillman from last week. So for example, one of the things that's relevant to me, and I believe will be relevant to the judges on the Fifth Circuit, even though there are conservative judges on The Fifth Circuit is that the prior Department of Labor 20 odd years ago, established the $455 salary floor, right? And so this is another good example of that application that we talked about where even though there isn't a Supreme Court decision that says the Department of Labor is entitled to set the floor at $454, like it helps give guidance to, well, the Department Of Labor 20 years ago certainly thought that it had this grant of authority.

0:27:42 Andrew: And the fact that there were not legal challenges, successful legal challenges brought at the time helps us, us some confidence that over sort of picking words out of the dictionary, that that references the congressional intent. The other thing is notice where the burden is, right? Like the burden is on the plaintiff to show the unambiguous and clear congressional intent to exclude the interpretation being offered. And was why I read you the full bit about professional capacity quote, parenthesis, as such terms are defined and delimited from time to time by the regulations of the secretary. And so I think it is just almost impossible on pure linguistic grounds to say that that delegation of authority.

0:28:36 Andrew: Right. These words are defined and modified, delimited from time to time by regulations of the secretary, meaning secretary of labor, that that was meant to exclude a category of regulations. Right. Like that it was meant to say, because this is their argument, is that the secretary was only given the authority within that passage to define the responsibilities of an exempt executive administrative or professional employee, but not the salary level on

0:29:05 Thomas: You're telling me their entire case rests on that? Wow.

0:29:09 Andrew: Appeal. Appeal? Yes, it does.

0:29:10 Thomas: That, that, just, I, that seems insane to me, especially with with what you pointed out, that the previous, you know, when they previously did this, the Department of Labor set the dollar range. Set the, you know, the threshold. So the idea that they would not have the authority to do that, that they could define the exempt positions in like their duties and kind of description, but not their salary threshold. That seems really flimsy to me.

0:29:22 Andrew: Yeah.

0:29:38 Andrew: Yeah, to me, too. And the argument that they that the plaintiffs have previously made is that the the previous floor was set at a very low level because it was first. I mean, I should point out when you talk about history, the Department of Labor has has been setting the floor for exempt employees since 1938. And so in 1938, they set that floor at $30 a week, which translates to $514.32 in today's dollars. Argument that they've made is that was meant to be a very, very low threshold as a form of administrative convenience to sort of exclude people that, like, now come on, you couldn't possibly be, you know, performing an executive function if you're making, you know, 12 cents an hour or whatever. Um, but that by setting it any higher, you're now getting into the substantive. It's, it's just, it's a bad argument. It really isn't a good argument. It's not supported by any case law as far as I can tell.

And it's going against, you know, a principle that by and large, like the principle of Chevron defense, right, of deferring to an administrative agency's findings, is often a very pro-business, it's often a very conservative kind of rule, look, typically. Right? When you you want to challenge an agency's findings, right, like to challenge those de novo, right, brand new, is pro plaintiff, right. And, and so, you know, pro plaintif usually tends to fall with the, you know, sort of on the left side of the ledger.

0:31:16 Andrew: So it's, there are an awful lot of, of things that in my view are sort of trending the wrong way with respect to prevailing on this argument at the Fifth Circuit. So all of that taken together is why I think the Fifth Circuit is going to reverse. They're going to dissolve the injunction and the rules going to go into place. Now, let's go back to the question you asked at the at the outset, which is what can Trump's Department of Labor do about this rule? Right. And the answer is they can start the process. Right. They can can engage in the fact finding and promulgate a new set of rules and say, you know what, well, this department was erroneous in carrying out its delegation in setting a salary level of X, but then they're still going to have that notice and comment period.

0:32:06 Andrew: It is still going to bring in hundreds of thousands of comments, that is still gonna require that they are required by law to read those comments. And so if think that Donald Trump's Department of Labor is going to come in and hit the ground running and promulgate a new set of regulations before the Fifth Circuit rules on this case, one way of looking at it. But I think that's not likely. We have not heard, this does not appear to be on Trump's radar. Kinds of cases are also very difficult politically, you on the other side of, right?

0:32:42 Thomas: Yeah. It seems like especially once you give overtime to people who weren't getting it before, taking it away again seems like it would be pretty difficult. Then again, uh, doesn't seem to be holding them back from taking away health care that, you know, people have gotten before, for now. So we'll see, like

0:32:43 Andrew: Yeah, yeah. Yes. Yes. Well, and look, that's part of this over the repeal of the ACA is, yeah, when people have come to expect a certain level of benefit or care, taking that away is very different universe than debate over legislation before it gets passed. Right. Like you could talk about, you know, when Obamacare was being debated and, you know, there were actual members of the United States Senate. This is one of the low points in American democracy, railing about death panels on the floor of the united states senate. You know, you can say things like that before a bill passes. Well, you Know, the ACA has been in effect for seven years and we know there are no death panels sending grandma off to the, you you know, the granola mines or whatever, like that, that didn't happen.

0:33:52 Andrew: So, you know you're left dealing with kind of the reality of, of what did happen. But, but, but you've hit on sort of the key point, which is to say, if the fifth circuit dissolves the injunction before Trump's department of labor promulgates new rules, then lots and lots of exempt employees are about to get a boost in salary, or they're about to be paid overtime, or, and this is a real possibility, and it's far worse than the other two if you're an employer, are about to make a lot of plaintiffs' lawyers very, very wealthy. And so if

0:34:28 Thomas: If the companies didn't follow the rules, you mean yeah, because we've talked about before, those penalties, what is it, like you can get double and then plus the fees or something like that, plus us the lawyer fees, so

0:34:30 Andrew: They don't do anything, it's exactly right. Right. You get statutory damages, which are double the amount of back wages that you're actually owed, plus 100 percent of your attorney's fees if you get even a dollar at trial. So my

0:34:51 Thomas: What you're saying is employers and hire Andrew Torrez, he's gonna need to help you through this.

0:34:57 Andrew: My belief is I'll allow you to make that commercial for me. And I and I do not I do Not dissociate myself from those remarks. I endorse those remarks, I think, if you were an employer and you were telling yourself, you know, we got through this. Uh, it, you know, right.

0:34:59 Thomas: Yeah.

0:35:12 Thomas: If you're, if you don't play, you're like, we're making America great again, I got the hats, uh, you know, I got several of those hats, I'm so excited that I get to ignore these rules because President Trump is coming in, he's going to get rid of all this liberal nonsense about paying people money, uh, thank God, we're, God bless America, bald eagle, if I mean, I don't know if you you want those people as your clients, but maybe, you know, I suppose, uh, you know, lawyers got to get work where he can't, but, but they can't just rely on that, they need to actually probably count on this rule going into effect for at least some period of time, yeah.

0:35:19 Andrew: Right. Yeah. And, and, and as you point out, once it goes into effect, it will be politically very, very difficult to, to turn around and take that away. You Know, and even if it's taken away, right, you, all you've done there is devolve the decision to the employer. So for example, um, let's take a hypothetical that's not far removed from a conversation I had with a client of mine. Uh, you have a small business, your, uh, general manager is making $39,000 a year and typically works about 60 hours a week. And so we sat down and I said, okay, um, you've got a couple of options here, right? You can, you can, uh. Tell him to only work 40 hours a year. Uh. And put in, put in place clear clocking in and clocking out rules that will prevent him from working more than 40 hours a week.

0:36:34 Andrew: Because by the way, under the FLSA, it is the employer's obligation to keep track of time, right? If there's an ambiguity, that ambiguity often favors the employee. And there are court cases that say, you know, an employee's contemporaneous reconstruction of a spreadsheet of the hours that they say that they've worked is valid and sufficient evidence upon which to award damages under the FLSA, right? So in other words, we disagree. I say, gosh, I've employed you, you've only ever worked 40 hours. And you say, what are you talking about? I came in two hours early and worked two hours late every day. So I worked an additional, you know, 16 hours a week overtime, and I want to be paid for that. And if I don't have records to dispute that, and what you've done is put together an Excel spreadsheet that shows you two hours in the morning, two hours of the evening, courts can consider that.

0:37:30 Andrew: And the of going to trial is going to make that a terrible case for me as an employer, right? Because of the whole attorney's fees thing, right. So you sit down, so you say, okay, working 60 hours a week, do you want to put these policies and procedures into place and do you want to prevent him from working those hours, or do you want to give him a $9,000 raise? And in that case, I think a lot of employers have said, okay, well, it's time to sit down and raise his salary to $47,476 dollars. Look, that can also present opportunities for employers too, right? Like if you have raised someone's salary, but you've looked at your previous employment agreements and maybe there are additional terms that you want to put into a contract, right, like you can sign a new contract, you can use that as an opportunity to things that are, um, beneficial to you as an employer, um, that, you know, we can talk about in a different episode, but, but so there are a lot of opportunities here, uh, that that go along with the additional cost.

0:37:36 Thomas: Your

0:38:35 Andrew: Um, it's, uh I do not mean to suggest, you know, uh for employers that you know there's there can be a real cost associated with it. Uh, but what I do mean to suggest is, uh think it would be a very poor business practice practice to, you sort of gamble on, um,

0:38:54 Thomas: Employees being too dumb to notice that, okay.

0:38:55 Andrew: Yeah. Yeah, I mean, one of the things I say, I said this at a, at a public, presentation I gave on this a couple of weeks ago, but, um there's a reason around here, this was in Maryland, so people knew the law firm to which I was referring, but you know I said, okay, how many people watch Monday Night Football and And everyone's hands went up. And I said, well, then you might have noticed that there's a certain plaintiff's firm that advertises for wage and hour overtime. It's a long, it's a minute long commercial on Monday night football games. And everybody sort of nodded. And I'm like, how do you think that firm can afford to advertise on Monday Night Football? Right. And that's true. And it's because this is such a huge growth area because of the provisions that you talked about. They are, plaintiff's firms are very, very active in soliciting people.

0:39:45 Andrew: They are doing it by commercials, they are doing it by word of mouth, and they're doing it directly targeting folks. And that, in my view, that is only going to continue going forward. And so, you part of my job is litigating those cases when people get sued, but also part of of my job is helping people not get sued. So I put that out there. Again, we've said our disclaimer multiple times over the course of these episodes. Don't take legal advice from a podcast, but do think about it because I think these are real issues.

0:40:19 Thomas: So all that is to say that for, for, so there's lots of different things at play here. There's the original law, even or not law, but I guess suppose the, the regulation and the change to the dollar threshold. There's... there's the fact of whether or not that will be reversed in the circuit court, right? And you made the argument and you pointed out that the appeal seems pretty weak, seems pretty weak to me as well. It doesn't make any sense to me they'd only have that authority to determine the type of worker that qualifies as exempt, but not the amount, the dollar amount. So that seems weak to be. So there's that aspect of it too. Too.

But there's also whether or not this conception that people have asked you about, I've asked you that, wait a minute, the new administration, can they just reverse all that? And it sounds like your answer to that is they can, eventually maybe, they may be able to steer that in a new direction, but that's going to take a lot of time. I'm guessing we'd probably even even have, in addition to the public comment that you mentioned and all that stuff,

0:40:42 Andrew: Correct.

0:41:27 Thomas: There's probably going to be another lawsuit, even if they tried to do that, if they try to reverse it again, maybe a judge in California will give an injunction. And so for that reason, there is definitely, most likely, in all likelihood, your prediction is, a very high chance that these new rules will go into effect for some length of time, if not permanently.

0:41:35 Andrew: Right.

0:41:51 Andrew: Yeah. I think that's an excellent way of summarizing it.

0:41:54 Thomas: All right. Well, good. It sounds like I picked up everything you were laying down. And that's interesting. That does explain it. It makes sense. I certainly myself, like I said, I was a little curious about your level of confidence there. But when you explain your reasoning and all the inner workings that are going on, all the wheels that are turning on that, it does make sense.

0:42:13 Andrew: Good.

0:42:13 Thomas: All right, well, I suppose that covers the FLSA. Portion that we wanted to talk about. So thanks so much for taking us through that, Andrew. I think that has real consequences for likely, you know, that's got to be a lot of our listeners, I would think. I mean, they could either be on the employer end of it, or maybe they're on the employee end of It. I wouldn't be surprised if that's going to affect a lot of people on either end who are listening to this show.

0:42:38 Andrew: I agree.

0:42:38 Clip: He who questions training, only trains himself at asking questions. What?

0:42:46 Thomas: We've got ourselves another listener question for today. Robert Rocio, I'm guessing. Over the holiday, Robert says, I heard an argument that road tolls are unconstitutional. Must have been a hell of a holiday party. Not On the basis that they are taxes, but because travel on public roads was a protected constitutional right, not a privilege that could be abridged by somebody's lack of ability to pay a toll. I had never heard of this argument, and my only logical justification would be a 5th or 14th Amendment argument about restricting liberty without due process. Then I went to research it, and it fell rather into a rather confusing case of what seems to be sovereign citizen mumbo-jumbo mixed with armchair lawyers. So what do you think, Andrew? Uh, are road tolls unconstitutional?

0:42:47 Andrew: Yeah.

0:43:02 Andrew: This Is 100% sovereign citizen mumbo jumbo, gold fringe on the flag level nuttery. Um, I greatly appreciate Robert asking me this question because, um, I looked at it and I couldn't figure out what what in the hell he was saying. Uh, and then I had to go research it, and researching these kooks always gives me a tremendous joy. So, uh, so let me parse this out. Okay. Um, what do you have that is a fundamental constitutional right? Okay. You have, and there are a number of cases that say this, um, a constitutional right of freedom of movement. Okay? But that doesn't just like you You wouldn't think privacy means abortion. Freedom of movement does not mean I get to drive a car. Right. Freedom of Movement.

0:44:05 Thomas: You know You can't just go into any building you want or something like that on the, yeah between

0:44:32 Andrew: Yeah. Right. Right. Yes. Let's all do the hokey pokey. Right. Freedom of Movement means the right to travel between states. OK. OK, so, for example, if the, say, city of Flint, Michigan, and the state of Michigan decided that, know, in the wake of the crisis, that what they were going to do was impose a tax on people leaving the state state of Michigan. Right. It would actually be a tougher case with people leaving the city of Flint because the right has been historically construed as only, you know, from state to state.

0:45:10 Thomas: States Okay.

0:45:10 Andrew: But I think you'd have a pretty good argument. Right? If the city of Flint was like, so if you want to sell your house, that's going to be a $10,000 tax, and like force people to stay there through the water crisis, right? Like things like that are unconstitutional, right. It is not, it is not permitted for the state of Michigan to say, nope, you know, you could, you can check in, but you can't check out. Right. That's what the constitutional freedom of movement means. That's it. Okay. In fine, fine nutball sovereign citizen fashion, what these folks have done is sort of cobbled together that language and language from decisions applying the constitutional freedom of movement with a host of crazy cases to make this argument that states have no constitutional right to require you to have a driver's license in order to drive your car.

0:46:09 Andrew: Okay. And, and, and now the answer is right. Like, and the reason is because remember, these people think like requiring you to have a diver's license is requiring you take the mark of the beast or something, like, I don't know, right. It is, it's part of you converting you into a corporation that they can sell you for a trillion years in a volcano. It's, it's, it's nuts, right? Like, these are the people that put put the colons in their names, and you know, so, so they don't want to have a driver's license because then they're going to be in uh the evil database of something or other, but they still want to drive their cars because they live in the 21st century, so they've come up with this notion that, um, you can drive a car without having a driver's license because you have freedom of movement, bit. Okay.

0:46:54 Andrew: And the things that I have seen, once you start researching this, you will come across the traditional sovereign citizens. And what it is, is just like a crazy ass jumble of quotes. The most common one that I've seen begins with a citation to Thompson versus Smith, 154 SE, which is the Southeast reporter 579. And it is often cited as the Supreme court proves that no license is necessary for use of an automobile. Okay. Now, let me say right away, we have not really talked about like the citation of reporters on this show specifically, but you may notice that when I cite Supreme Court cases, I almost always cite them in the form 489 U.S.

0:47:39 Andrew: 562, right? And that's because the U.S. is the U.S. reporter for Supreme Court case. If you think about this for, say, a tenth of a second, you might think, hmm, Southeast seems like an odd reporter to put Supreme Court cases in. And you would be correct, right? The Southeast reporter is a state reporter that covers state court decisions from the southeastern United States. And so, as it turns out, this Thompson v. Smith decision is a 1930 case from the Virginia Supreme Court, right? Not the U.S. Supreme Court. The Virginia Supreme Court's.

And they cite it for this quote: the right of a citizen to travel upon the public highway and the transport his property thereupon by horse-drawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but a common right which he has under his right to life, liberty, in the pursuit of happiness. Under this constitutional guarantee, one may therefore, under normal conditions, travel at his inclination along the public highways or in public places, while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another's rights. He will be protected not only in his person, but in his safe conduct. Okay.

So that sounds kind of like what these sovereign citizens people want to say, right? But shocker, the fact that something is a right, uh, doesn't mean that anything that touches on that right becomes prohibited. So, for example, that same case of Thompson versus Smith, uh, one page later, says the

0:49:12 Andrew: Exercise of such a common right, the state may under its police power regulate in the interest of the public safety and welfare, the regulation of the exercise of the right to drive a public automobile on the streets of the city may be accomplished in part by the city granting, refusing, and revoking, under rules of general application, permits to drive an automobile on its streets. Um, so yeah, like it is

0:49:34 Thomas: Well, that's pretty straightforward, why didn't they reference that part of the Southeast, uh, reporter? Oh,

0:49:39 Andrew: Well, no, shockingly right. Like, this, and I am going to link, uh, this narrow is the path to the truth, uh, gonna read you that, the start, on this, this, uh, website was designed, I think, in 1997 on Geocities, um. It it has five different colors on, on the first page, and three different fonts. And, uh, it's, it says the following argument has been used in at least three states, Pennsylvania, Ohio, and West Virginia, as a legal brief to support a demand for dismissal of charges of driving without a license. It is the argument that was the reason for the charges to be dropped, or for a quote, win in court, against the argument that free people can have the right to travel regulated by their servants. Um, and it is a masterpiece of crankery. Um, and and and these people are saying, if you are arrested, uh, or you are given a ticket for driving without a license, that you should file this document word for word, uh, in the courts, and you will get off, and I tell you, uh, is a case in which, like, I don't even want to read our

0:49:59 Thomas: Gosh

0:50:44 Andrew: Disclaimer here: if you file this document in a court, you will will be laughed at. Um, and then you will lose and then you will possibly be assigned at the maximum possible fines uh, that the judge could, could possibly assign you for, uh, wasting everyone's time and, and, and being a complete and total crank. Um. It's amazing. So, So the bottom line is, uh number one, there's no constitutional right to travel on highways or whatever these sovereign nuts think. There's a constitutional right right, to travel between states, that is a prohibition on, preventing you from leaving either by putting armed guards at the Michigan border or taxing you or something like that.

0:50:50 Thomas: Okay very, very quick question on that does that mean that a bridge that goes between two states, you therefore you couldn't put a toll on that? It's just, you couldn't totally stop like every road, or something, okay yeah

0:51:24 Andrew: Yeah, yeah, yeah. No, like you can. Right. Yeah. And That analysis would be at a very high level, uh, because, right, if you think if about it this way, right, you put a toll on the George Washington Bridge between New York and New Jersey, which there's an extensive toll um, it to be determined as restricting your right to leave the state, you'd have to show that that's the only way to get out of New York, right? Like, you can travel the back roads to get out of New York, it's, um, just that the Georgia Washington Bridge is much, much more convenient.

0:52:04 Thomas: That's What I thought, just asking the question but

0:52:05 Andrew: No, no, no. Good, good question. Those interstate bridges are ruled by an interstate compact, which is a special agreement between states that is then approved by the Congress because it governs interstate commerce. Um, the idea, it's why I wanted to read that bolded language, right? Like the, one of the hallmarks of the sovereign citizen movement is the idea that like, uh, you read some out of context stuff and say, this is a right. And then you say, okay, well, if it's a right, then the government can't take that away from you.

0:52:43 Andrew: And and like, it just sort of every step of that is wrong. You know, and they'll say, well, you know, it's a right and not a privilege. And it's just that, that's not even what a right means, right? Like, and we know this, right. Like, so for example, you have, I mean, think about things that are actually rights, right, like you have an actual constitutional right to, you due process of law, uh, but if you decide that you're not going to pay the court filing fees, then the court's going to dismiss your case, right? Like, if you can't pay the filing fees, then, you know, you can petition to have the fees waived, right? But but these sovereign citizen types

0:53:23 Thomas: Even a simpler example for these numbskulls, you have a right to move, but you can get arrested for breaking the law, right? I mean, that doesn't trump all other things, like, if you have a right movement, then no one can ever stop you moving.

0:53:27 Andrew: Yeah yeah right I am, I am in motion, therefore, yeah, yeah, And I guess they would go to the, remember the, the language that I, I read, the flowery language from the Thompson case says, you know, as long as you're moving peaceably and They'll say, well, you know, obviously, it's, it's implied that it's, you know, peaceable, and I am, and, you know, uh, you, you watch these like sovereign citizen stops, and they're like, "I'm being peaceable, officer. I'm not violating any laws." And the officer's like, "Well, you're violating the law that says you have to give me your driver's license."

0:53:42 Thomas: Oh Okay. Yeah. Okay. Gotcha. Yeah.

0:54:09 Andrew: And then they'll repeat the, "But I'm being peaceable." Well, no, no, you're not. When you're not turning over the thing that the law requires you to turn over, that you're no longer being peaceable, all of that is kind of a, it's a delightful structure of nonsense, um, so Robert, I'm sorry to say, uh, you have a family member who's a crank, or has been, or has be taken in by cranks, right, like you could, you, you should, you should do your best to deprogram them, um,

0:54:08 Thomas: Well, Hopefully it's just a co-worker or something, doesn't sound like it. Yeah, who knows, who knows, but

0:54:35 Andrew: Right. Yeah. The the hallmark of crankery is when you start seeing, being, series of quotes sort of smashed together with no analysis whatsoever, and, and this goes back, this is a good call back to, um, our, uh, discussions with, with Seth Barrett Tillman, and, and we talks about how in the context of the 2009 DOJ memo that just assumed that the Emoluments Clause applied to the President, and the phrase that, that Professor Tillman used that I thought was, uh, that I agreed with, was, "If this were a judicial opinion, this would be dicta," right? And that's true, what, right, that means is that, a, in a judicial opinion, um, judges say all kinds of stuff, right, and the stuff that they say that is not directly relevant to the holding of that case, right? Take the case of the slants that we talked about.

0:55:27 Andrew: So as long as we're calling back to previous episodes, let's call back to lots of episodes, right? The Supreme Court heard arguments about, the Lanham Act's disparagement clause, is that constitutional? Or does the First Amendment's prohibition on viewpoint point discrimination, prohibit the government from passing a law that says the U.S. Patent and Trade Office will not register offensive trademarks, right? If in that opinion, the court's going to say other stuff, right, so if they say other stuff that's not directly related to the fundamental question of the disparagement clause, that stuff is dicta, and you might cite it later on to say, well, you know, this This gives us some idea of what the court thinks, but the other side, yeah, it has zero precedential value if it's dicta.

And so other lawyers will say, "Yeah, but that's just dicta from the opinion." And sometimes it's useful dicta, sometimes it is not. But you highlighted the important part, which is it is not controlling, it's not binding if it was not part of the holding. So what does that mean? That means when you write a legal brief, when you see an actual legal argument, you'll have a pretty quote from a case, but then you have to describe what that case was with a full citation, which includes the court in which that case was brought and the year, and then a description, either within a parenthesis or within the text of the document that you're reading, that says what that, that case

0:56:10 Thomas: It's not like precedent, then? Gotcha.

0:56:59 Andrew: Was about, right, because if you don't have that, then you have no idea if someone is quoting the holding or quoting dicta or making stuff up, right, so when you see you, "The esteemed Justice Tolman of the Supreme Court of Washington said X," followed literally with no analysis by, "The most sacred liberties is this the definition of personal liberty," is yet another quote, and then, like, this kind of string of quotes mashed together with no analysis in between them, you know, the odds are very, very high that you're reading crankery.

0:57:30 Andrew: When you see cases that just say, you a citation and then no parenthesis that says which court it is, the odds are very, very highly you're reading crankery, so, you know, a good legal brief will, you know, will tell you where it's from, and will tell, tell you what the case was about, and, and we'll give you some analysis, and, you know, and think about, like, what you hear on this show, right, like, I don't just, you read random quotes at you and say case closed, right, we, we talk about what the cases mean, so that's, that's my, uh, that's my, uh, sort of helpful hints for, uh, thinking

0:57:30 Thomas: For, detecting

0:58:04 Andrew: About whether you're dealing with cranks.

0:58:04 Thomas: Crankery. Yeah, well, it's always fun to, uh, to visit that, that weird kind of bizarre crankery side of, of the law, must be, must be fun as a lawyer too, and, and, uh, you know, as someone who's doing really well on the bar exam, I can't wait to do that as well. Speaking of the bar exam, wait, first, before we get to the bar exam teasing, the bar exams. We've absolutely got to first thank Robert Rocio for that question, and then secondly, thank our top patrons, it's Top Patron Friday. So, that being said, would like to thank Roger Metcalf, Dan Irizarry, Eli Bosnick, Dave Nichols of Positively Doubtful Podcast, Steve Sigmund, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, La Bibliotecatrice, Heather Loveridge, Geeker41, Sean Pitty, Ian and Allie, Matthew Vernon, Violet Page Hall, and Heath Enwright. Why don't you take it from there, Andrew?

0:58:26 Andrew: Yeah. And I would like to thank Jeffrey Maynor, the Wayward Willis, detective Matthew Maxson, whom I met in Chicago last week and was a superstar in his own right, uh, Leon Hartley, Matthew Hillier, Zena, Dave Lovely, Danny Baker at Combat Nonsense, John Bodley Esquire, Hunter, Ash, Kylie Riser, Jeff S, Sakashite Fukasumi, Pro Panic, Philip Stromberg, Michael Schaefer, Michaela, Rob V, Michael Frederick, Alstromer, Sammy Conrad, Michaels Zabby, and the Inciting Incident podcast, and I also got to hang out with Risks in Chicago, so, uh, thank you all so much, uh, we really appreciate your long-standing, uh, hall of fame level patronage of the show, uh, this would not be possible without, uh, without your support, and if you'd like to be a hall of famed patron, and check us out at patreon.com/law. Okay.

0:59:12 Thomas: Nice.

0:59:21 Thomas: Excellent.

0:59:58 Thomas: All right, well, here it is, can the impossible streak continue, question eight of Thomas Takes the Bar Exam, TTTBE, okay.

1:00:08 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:00:13 Thomas: Okay.

1:00:15 Andrew: Now, Homeless people started residing on a strip of land located under a bridge. The land was owned by a nearby chemical manufacturer. The squatters did not ask permission and the company did not feel it was an urgent problem. The squatter's used a small lake on the property for bathing and drinking water. Within a few days, two squatters died from what was later revealed to be highly polluted water coming from the company's waste discharges. The company knew that it had a waste discharge problem. The estates of the two decedents sued the company. Will they likely prevail on their tort claim despite the company's defense that the decedants were trespassers?

Okay, so relatively, relatively straightforward, if horrible, question, um, everything clear, are they gonna win, uh, even though they were trespassing? A, yes, because even though they trespassed, the owner had a duty to warn because it knew that they were in danger. Yes, because the owner was strictly liable for any injuries caused by the hazardous condition of the water in the lake. No, because the The owner owes no duty to trespassers except if it acts with willful or wanton disregard, or D, no, because an owner of land never has to worry about protecting the safety of trespass. That

1:01:05 Thomas: Well, Okay, lots of stuff going on here, my intuition is yes, a yes answer, because of the part where they knew about it, where the company knew about it and they didn't see fit to warrant, to, you know, do anything about it, I, I mean, the libertarian in me, if there is such a thing, would like to think that if someone just trespasses on your property, it's all on them, like, you can't, you know, you're not to blame, however, I, I don't really think that's the case, so I, I could be wrong, but I'm pretty sure, given that they knew the homeless people were on the property, uh, that, they would have to work. Now, I, the question is between A and B now for me. And that was, that's interesting.

1:02:23 Thomas: Now, would they be strictly liable for the condition of the lake? Now, I think that's got to be, no, I'm pretty sure that if you're, if it's on your property, if It's something you own, I don't think you can just be strictly Liable for pollution that's happening on your, your property like that. So I don't know. Hopefully that made some sense. I'm on a roll, so hopefully that luck will continue. But I'm going to go with A, which I believe was, if I remember them all correctly, was the one that is yes because they knew about it and they didn't warn them,

1:02:56 Andrew: That is the answer to a, um, even thought they trespassed, the owner had a duty to warn because it, the owner company knew that they were in danger. Um, you would like to play along with Thomas, there are now two ways to play along. More and more people every week are playing along with Thomas Takes the Bar Exam. We are having a ton of fun with this. Um, the way to play along is either on Twitter or on Facebook. Uh, quote and retweet, if you're on Twitter, our announcement tweet that that releases this episode, and include with your, and any explanation. Or if you're on Facebook, share our post that announces the release of this episode onto your wall. Share us out with your friends and include your answer on Facebook. Make sure we're tagged in that. When you do that, we read all of those answers and we pick our favorites, and we're having a lot of fun. Hopefully you're having a lot fun playing along with Thomas, who

1:02:59 Thomas: Well, that's my final answer.

1:03:10 Thomas: Yeah, Absolutely. Thank you guys so much for participating in that. I love this segment. I can't wait to find out if I'm doing six for eight. Crazy. Who would have thought? All, all right, well, that's the end of today's episode. Thanks so much, Andrew, as usual, for being such a unparalleled expert and entertaining source of legal information. And thank you to our listeners for the great questions you send. Thank you, of course, to our patrons at patreon.com/law. And until next time, you know what to do.

1:04:33 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.