     Case: 09-30506     Document: 00511072939          Page: 1    Date Filed: 04/07/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             April 7, 2010

                                     No. 09-30506                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



HILDA L SOLIS, SECRETARY, DEPARTMENT OF LABOR,


                                                   Plaintiff - Appellee

v.

HOOGLANDS NURSERY, L.L.C.; MICHAEL HOOGLAND,


                                                   Defendants - Appellants




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:07-CV-533


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        This is an appeal from the district court's order granting summary
judgment for Plaintiff on behalf of various employees of Defendants Michael
Hoogland and Hooglands Nursery. The district court held that these Defendants
violated the overtime and record-keeping provisions of the Fair Labor Standards


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 09-30506     Document: 00511072939           Page: 2     Date Filed: 04/07/2010

                                        No. 09-30506

Act ("FLSA").       The district court awarded injunctive relief, compensatory
damages, and liquidated damages.1 These Defendants appeal the district court's
order as it relates to its non-salaried employees, arguing that there were genuine
issues of fact regarding whether their day rate plan was invalid under the FLSA
and whether they acted in good faith. After a review of the record, we find no
error and AFFIRM.
        "We review the district court's grant of summary judgment de novo, using
the same standard as the district court." Ikossi-Anastasiou v. Bd. of Supervisors
of La. State Univ., 579 F.3d 546, 549 (5th Cir. 2009) (citation omitted).
"Summary judgment is properly granted only when there is no genuine issue of
any material fact and the moving party is entitled to judgment as a matter of
law." Id. (citing F ED. R. C IV. P. 56(c)).
1.      Appellants first argue that there remained a genuine issue of fact
        regarding whether their day-rate method of paying their employees met
        the standards of 29 C.F.R. § 778.112. However, Appellants concede both
        before the district court and on appeal that their employees' wages were
        reduced when the employees worked less than a full day.2 Accordingly,
        Appellants did not have a valid day-rate plan in use, and their failure to
        pay their employees overtime compensation pay for time worked beyond
        forty hours per week violated 29 U.S.C. § 207(a)(1).


        1
        The district court also held that Defendant Fredric Hoogland was not an "employer"
under the FLSA and dismissed him as a party. Appellants do not dispute this holding on
appeal.
        2
         Appellants argue that they are not responsible for the employees' reduction in pay
because the decision to reduce pay was not theirs but that of their bookkeeper. In addition to
ignoring basic agency principles, this argument ignores our holding that an employer remains
liable for FLSA violations when the violations were a result of decisions by a lower-level
employee even under the higher standard for awarding liquidated damages. See, .e.g.,
LeCompte v. Chrysler Credit Corp., 780 F.2d 1260, 1263 (5th Cir. 1986) (defendant's "attempt
to thwart liability based on its asserted ignorance of [lower-level employees'] abuses is legally
unavailing").

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                                   No. 09-30506

2.      Appellants next concede that they failed to pay their employees for two
        fifteen-minute breaks per day, in violation of the FLSA. Nevertheless,
        Appellants argue that their purported overpayment to their employees as
        part of their day-rate plan compensated for the shortfall, pursuant to 29
        C.F.R. § 778.202(a).    However, as the district court properly held,
        Appellants did not employ a valid day-rate plan, because they reduced
        employees' pay for hours they did not work. Accordingly, the district court
        properly concluded that Appellants remain liable for the amounts
        deducted from their employees' compensable break periods.
3.      Finally, Appellants argue that even if they violated the FLSA by not
        implementing a proper day-rate plan and failed to pay proper overtime
        compensation, there remained a question of fact as to whether Appellants'
        failures were in good faith, thus precluding an award of liquidated
        damages. Liquidated damages are awarded as a matter of course for
        violations of 29 U.S.C. § 207. See 29 U.S.C. § 216(b). Pursuant to 29
        U.S.C. § 260, however, a district court may decline to award liquidated
        damages if the employer demonstrates that it acted reasonably and in
        good faith. Heidtman v. County of El Paso, 171 F.3d 1038, 1042 (5th Cir.
        1999). Nevertheless, even if a defendant shows both subjective good faith
        and objective reasonableness, an award of liquidated damages remains in
        the discretion of the district court. See § 260; Heidtman, 171 F.3d at
        1042. After reviewing the record, the district court correctly held that
        Appellants "ha[ve] submitted no evidence that [their] reliance on a
        bookkeeper with no managerial authority to ensure [their] compliance
        with the FLSA was reasonable." Accordingly, Appellants have not carried
        their burden of showing good faith, and an award liquidated damages was
        proper.
AFFIRMED.

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