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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30506

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

April 7, 2010

Lyle W. Cayce

Clerk

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No. 09-30506

 The district court also held that Defendant Fredric Hoogland was not an "employer" 1

under the FLSA and dismissed him as a party. Appellants do not dispute this holding on

appeal.

 Appellants argue that they are not responsible for the employees' reduction in pay 2

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").

2

Act ("FLSA"). The district court awarded injunctive relief, compensatory

damages, and liquidated damages. These Defendants appeal the district court's 1

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 FED. R. CIV. 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. Accordingly,

2

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).

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No. 09-30506

3

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.

Case: 09-30506 Document: 00511072939 Page: 3 Date Filed: 04/07/2010