concurring and dissenting.
I concur in Judge Michael’s opinion except part II which deals with plaintiffs’ right to liquidated damages. I think that the district court was in error in denying liquidated damages, and I respectfully dissent from our refusal to allow them.
I.
Judge Michael’s opinion correctly sets forth the governing law. FLSA provides that an employee who has violated the Act will be liable for the amount of underpayment and for an equal amount as liquidated damages. 29 U.S.C. § 216(b). The Portal-to-Portal Act modifies the strictness of this rule by giving a district court the discretion to excuse liquidated damages, in whole or in part, if the employer establishes that his “act or omission giving rise [to liability] was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of [FLSA].” 29 U.S.C. § 260. In Wright v. Carrigg, 275 F.2d 448, 449 (4 Cir. 1960), we said that § 260 operates to excuse liability for liqui*142dated damages only where the employer demonstrates both good faith and reasonable grounds for believing that he was not acting in violation of FLSA. Thus, under the law in this circuit, the .employer must satisfy both prongs of a two-prong test in order to be relieved of liability for liquidated damages. Moreover, we have held that the test of the good faith requirement to excuse liability is an objective one and not a subjective one. See Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4 Cir. 1969).
While I do not dispute, as Judge Michael states, that the record amply demonstrates that the employer had subjective good faith, I cannot read it to establish either objective good faith or reasonable grounds for concluding that he was not covered by FLSA.1
The district court emphasized Congress’s having changed from time to time the eligibility requirements for coverage under FLSA and suggested that that factor somehow made it reasonable for the employer to be unaware of his coverage. This does not impress me. Congress regularly changes numerous aspects of the tax laws, but nevertheless citizens are expected and required to conform to the changes. The only aspect of FLSA which has undergone relevant change is the threshold amount of annual gross sales necessary for coverage. The employer was under a duty to keep himself abreast of these changes, particularly where, as here, the employer is an experienced businessman.
From the record, it seems clear to me that noncompliance stemmed from the employer’s subjective belief that the gross sales of his two motels should not be aggregated to determine possible coverage.2 On this crucial issue, the employer did not seek the advice of an attorney, an accountant, or anyone connected with administration of the Act.3 He read only some newsletters or bulletins of a trade association, but there was no proof that even they commented on the crucial question of aggregation.
Of course, Richard v. Marriott Corp., 549 F.2d 303 (4 Cir.), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1100 (1977) is *143distinguishable from this case, because in Marriott the employer ignored an opinion letter of the Wage and Hour Administration indicating that its pay practices were illegal. Marriott is obviously a more flagrant case of violation of FLSA than the instant case. Nonetheless, on the record and under settled law, I think that the employer here should be held liable for liquidated damages.
I would reverse the district court’s denial of liquidated damages for the period of coverage.
. It is perhaps significant that the advisory jury answered in the negative to the interrogatory "Did the defendant, Spilman Short, act in a good faith belief that his motel operation at which plaintiffs worked was exempt from the coverage of the Federal Wage and Hours Law?" The district court rejected this finding for the reason that "There would be no evidence at all that Mr. Short was acting in bad faith until sometime up in April when Mr. Burnley [a plaintiff] testified that he told him that he had filed a claim or something with the wage and hour law.” I think that the burden was on the employer to establish non-liability for liquidated damages, not on plaintiff to prove more than coverage under FLSA.
. The employer testified that he attended conferences and meetings of the Virginia Motel Association, that FLSA was often discussed, and that he received a monthly newsletter from the Association. He added "Under two hundred, fifty thousand dollars ($250,000) did not fall under minimum wage. And I consider the Jefferson Davis Motel as property A and the Pinehurst Motel as property B and they came no where near close to two hundred and fifty thousand dollars ($250,000) volume per each.”
. In further testimony to that set forth in n. 2, the employer said:
[A]I1 inquiries that I made and all of the written material that I had seen coming from the Virginia Motel Association had the volume figures such that I knew that each property operating differently would not come under the minimum wage law.
Q. Did you ever go to the Virginia Motel Association and tell them that you had two (2) motels and ask them whether the law required you add them together?
A. I did not think that was necessary, sir.
Q. Was there an Executive Director of that Association ready and available to give you information when you requested it?
A. Yes.
Q. Did you ever make any inquiry to him to find out anything at all about the Act?
A. I listened to Mr. Hick Rice, J. Lynwood Rice, speak at many of our meetings, but I never went to him personally in the Virginia Motel Office.
Q. So as far as Spilman Short was concerned, it is correct that you never at anytime [sic] attempted to obtain any professional opinion of any source, whatsoever ...
A. I did not___
Q. ... As to whether or not you were required to pay minimum wage?