The Trump administration recently announced guidance that may expand access to the H-2A temporary agricultural worker program for dairy operations. Historically, the H-2A program has been limited to temporary or seasonal agricultural work, making it difficult for dairy producers with year-round labor needs to participate.
The new guidance from the Department of Homeland Security and Department of Labor signals greater flexibility for dairy employers seeking to utilize the H-2A program to address workforce challenges.
While additional implementation details are expected, dairy producers considering H-2A workers should be aware that the program continues to carry significant application, wage, housing and compliance requirements.
Varnum’s immigration attorneys are monitoring these developments and are available to assist employers in evaluating eligibility and navigating the H-2A process.
Attend our upcoming “ESOP Webinar for Medical Practices” on Wednesday, June 24, from 11:30 a.m. to 12:30 p.m. via Zoom.
The Succession Planning Challenge Facing Medical Practices
Physician-owners of medical practices face increasing pressure to plan for ownership transitions. Nationally, 75 percent of business owners plan to exit within the next 10 years, yet only 34 percent have a documented and communicated succession plan, and fewer than one-third successfully sell their companies. The challenge is especially acute for medical practices, where the traditional partnership succession model is fading. Younger generations of physicians are less inclined to buy into partnerships, and hospital acquisitions of practices, which peaked during the COVID-19 era, have slowed.
Private equity has stepped aggressively into this void, completing approximately 500 medical practice acquisitions annually since 2020, often through management services organization (MSO) structures. Private equity transactions have become a significant succession planning and growth strategy for physician practices, but they often involve changes to governance structures, physician autonomy, and financial objectives that physician-owners should carefully evaluate.
An Employee Stock Ownership Plan (ESOP) is another ownership transition option for physician-owners evaluating succession strategies. Because ESOP transactions can use many of the same economic features as private equity, including compensation adjustments, and bank financing, an ESOP may be a viable succession planning alternative to private equity. The two structures share certain financial and transactional characteristics but differ in areas such as ownership, governance, tax treatment, and long-term objectives.
What Is an ESOP for a Medical Practice and How Does It Work?
An ESOP is a qualified retirement plan that invests primarily in employer stock and is administered by a trustee acting as a fiduciary for plan participants. It functions as both an employee benefit plan and a corporate finance tool, creating an internal market for shares of the practice.
In a leveraged ESOP transaction, physician-owners sell all or part of their equity while allowing the practice to continue operating independently under an employee ownership structure. The ESOP borrows funds to purchase shares from the current owners, and the resulting debt is repaid with tax-deductible company contributions, effectively using pre-tax dollars to retire acquisition debt. Employees receive allocations of shares over time as the loan is repaid, and their benefits grow tax-deferred until distribution.
Because state professional corporation (PC) laws typically restrict stock ownership to licensed professionals, medical practice ESOPs often use a parallel MSO structure. In this arrangement, the ESOP holds stock in the MSO rather than the PC itself, allowing decision-making authority over clinical matters to remain with licensed physicians while profits flow to the MSO and enhance ESOP share value.
ESOP vs. Private Equity for Medical Practice Succession
The structural similarities between private equity and ESOP transactions are significant, but the differences in long-term outcomes are equally important. Both approaches rely on similar earnings and compensation adjustments and use bank debt financing to fund the acquisition. However, private equity transactions also involve equity financing from investors, and often include rollover equity requirements and equity-based management incentive plans, while ESOPs do not require outside equity.
From a liquidity standpoint, private equity deals typically provide mostly cash at closing, along with potential earn-out arrangements. However they are taxable events and generally involve a plan to sell the practice again within five to seven years. In contrast, an ESOP can provide cash at closing, with the remainder of consideration structured as seller notes with optional warrants. ESOPs may also allow sellers to defer capital gains under Section 1042 and can eliminate federal income tax on future operating income in certain circumstances.
The two structures often reflect different ownership objectives. Private equity investors typically seek liquidity through a future transaction, while ESOPs are designed to support employee ownership over the long term.
Governance structures also differ between the two models. Private equity transactions often introduce investor oversight and strategic growth objectives, while ESOP structures preserve existing management and governance frameworks. In medical practice ESOP structures, clinical decision-making authority remains with licensed physicians in accordance with applicable state laws. ESOP transactions and private equity transactions also differ in ownership timeline and governance structure. ESOPs are generally designed around long-term employee ownership, while private equity investments typically include outside investor oversight and a defined investment horizon.
Tax Benefits of ESOPs for Medical Practices
One factor that distinguishes ESOPs from many other succession planning strategies is their potential tax advantages for medical practices and physician-owners.
For sellers organized as C corporations, Internal Revenue Code Section 1042 permits a rollover deferral of capital gains, provided the seller transfers at least 30 percent of company stock to the ESOP and reinvests in qualified replacement property within one year. The practical impact can be significant: On a $30 million sale with a $5 million basis, a taxable transaction could generate approximately $6.25 million in taxes, whereas an ESOP transaction using Section 1042 could result in no current tax liability. If the holder of the qualified replacement property dies, the property receives a step-up in basis, potentially eliminating the deferred gain permanently.
For practices organized as S corporations, a 100 percent ESOP-owned S corporation pays no federal income tax on operating income, freeing additional cash flow for debt service, growth initiatives, and reinvestment. At the participant level, annual share allocations are made in proportion to covered payroll, and benefits grow tax-deferred, subject to vesting schedules and diversification rights.
Key Considerations When Evaluating an ESOP
Like any ownership transition strategy, ESOPs present both opportunities and challenges. Potential benefits include tax savings, increased cash flow, physician-owner liquidity, capital gains deferral, the ability for sellers to remain involved, and the creation of an ownership culture that can support employee retention and engagement. Considerations may include transaction complexity, fiduciary oversight obligations, balance sheet leverage, and long-term repurchase obligation planning.
Private equity transactions often provide substantial upfront liquidity and access to capital for growth, while ESOPs may offer unique tax advantages, employee ownership benefits, and continuity of long-term ownership. The appropriate structure depends on the practice’s goals, ownership objectives, succession timeline, and growth strategy.
A formal ESOP feasibility study is the recommended first step for medical practices exploring this ownership model. The study typically includes a preliminary valuation, tax analysis, debt capacity modeling, and transaction design.
Physician-owners considering succession should clarify their goals regarding timing, control, and liquidity. They should then work with experienced ESOP counsel, transaction and valuation advisors, and trustees to evaluate whether an ESOP aligns with their succession, ownership, and long-term business objectives.
Disney Vacation Club (DVC) contracts are more than vacation perks. They are deeded real property interests that require thoughtful estate planning. Whether points were purchased years ago or more recently, understanding how a DVC contract is titled, and how it will transfer at death, is critical to avoiding probate, unintended ownership outcomes, and potential family disputes.
Three Ways to Title a DVC Contract
Most DVC contracts are governed by Florida law. Generally, title may be held in three ways: individually, in a revocable trust, or through a corporate entity such as a limited liability company (LLC) or corporation. Each structure has different implications for estate administration, tax planning, creditor protection, and long-term membership management.
1. Individual Ownership
Individual ownership can take several forms, including tenancy in common, joint tenancy, joint tenancy with right of survivorship, or tenancy by the entireties. If the deed does not specify the form of ownership, and the owners are not married, Florida law defaults to tenancy in common, meaning each owner holds a separate interest that may be subject to probate.
Joint tenancy with right of survivorship allows a DVC interest to transfer automatically to the surviving owner without probate. Tenancy by the entireties, available only to married couples, provides similar survivorship benefits along with certain creditor protections under Florida law.
For out-of-state owners, the form of title may also determine whether ancillary probate proceedings in Florida are required upon the death of an owner.
2. Titling a DVC Contact in a Trust
A revocable living trust is a common planning vehicle for DVC ownership. A properly funded trust allows the grantor to retain full control during life while enabling the contract to pass to designated beneficiaries at death without probate.
Trust planning also allows families to establish customized provisions addressing maintenance fees, usage rights, and long-term governance of the membership. For example, a trust may require beneficiaries to contribute toward annual dues or risk losing usage privileges. These tailored provisions can help preserve the value of the membership and reduce the likelihood of disputes.
Families should also evaluate whether the trust should retain ownership through the contract’s expiration or distribute interests outright to beneficiaries. Ongoing trust ownership can provide centralized management but may involve continuing administration costs and tax filings.
3. Ownership Through an LLC or Corporation
In some cases, families may hold DVC contracts through an LLC or corporation. While less common, entity ownership can provide a formal structure for shared ownership, allocation of usage rights, and financial obligations through operating agreements or bylaws. Families considering entity ownership should consult legal and tax advisors regarding governance, liability exposure, and potential tax consequences.
Planning for Multiple Contracts and Multiple Heirs
Families with more than one child should consider whether purchasing several smaller contracts rather than a single large contract may allow for cleaner division of ownership. Separate contracts can be distributed individually and may be easier to sell on the secondary market if a beneficiary chooses not to retain the membership.
A key operational consideration is that contracts must carry consistent titling to be linked under a single membership number. Differently titled contracts or separate trusts may create additional membership numbers, which can complicate point management and reservation planning. Similarly, differing Use Years may complicate your vacation planning, but individual heirs may have differing preferences that may be accommodated.
Retitling an Existing DVC Contract
Owners who initially titled their contracts individually may later transfer them into a trust through an established retitling process. This process typically includes administrative fees and timing considerations, including potential restrictions related to pending reservations. Advance planning can help minimize disruptions.
Key Takeaways
Because DVC contracts are deeded real property interests, titling decisions directly affect probate exposure, transfer tax planning, creditor protection, and long-term family governance. Revocable trusts often provide flexibility and continuity, while entity ownership may be appropriate for complex shared arrangements.
Before changing title or relying on outdated estate planning documents, DVC owners should review their strategy with our experienced estate planning counselors to ensure their plan protects family interests and supports multigenerational use. Contact a member of Varnum’s Estate Planning Practice Team to discuss today.
On May 14, 2026, the U.S. Supreme Court issued a unanimous decision in Montgomery v. Caribe Transport II, LLC, No. 24-1238, holding that negligent-hiring claims against freight brokers are not preempted by the Federal Aviation Administration Authorization Act (FAAAA). The Court concluded that such claims fall within the FAAAA’s safety exception, which preserves a state’s authority to regulate safety with respect to motor vehicles.
The decision resolves a longstanding split among federal courts and significantly expands potential liability for freight brokers and transportation brokers. Going forward, brokers may face increased exposure to state-law negligence claims arising from their carrier-selection decisions.
FAAAA Preemption and the Freight Broker Safety Exception
Freight brokers play a critical role in the U.S. supply chain, arranging freight shipments between shippers and motor carriers. Congress enacted the FAAAA in 1994 to deregulate certain economic aspects of the trucking industry and included a broad preemption provision prohibiting states from enforcing laws related to a broker’s or motor carrier’s prices, routes, or services.
Congress also included an important limitation on that preemption. The FAAAA’s safety exception provides that the statute does not restrict a state’s safety regulatory authority with respect to motor vehicles.
For years, courts disagreed on whether negligent-hiring claims against freight brokers fell within that exception. The Supreme Court’s decision in Montgomery answers that question and establishes that states may allow plaintiffs to pursue negligent-hiring claims against brokers when injuries allegedly result from the selection of an unsafe motor carrier.
Facts Behind the Supreme Court’s Freight Broker Liability Decision
Plaintiff Shawn Montgomery suffered severe injuries when a truck hauling freight struck his tractor-trailer. The shipment had been arranged by freight broker C.H. Robinson Worldwide, Inc.
Montgomery alleged that C.H. Robinson negligently selected the motor carrier despite the carrier receiving a “conditional” safety rating from the Federal Motor Carrier Safety Administration (FMCSA). According to the complaint, the carrier had documented safety deficiencies involving driver qualifications, hours-of-service compliance, vehicle maintenance, inspections, and crash history.
Montgomery argued that the broker knew or should have known that selecting the carrier created an unreasonable risk of harm to the public.
The district court dismissed the negligent-hiring claim, finding it preempted by the FAAAA, and the U.S. Court of Appeals for the Seventh Circuit affirmed. The Supreme Court reversed.
Supreme Court Rules Freight Brokers Can Be Sued for Negligent Hiring
The Supreme Court unanimously held that negligent-hiring claims against freight brokers fall within the FAAAA’s safety exception and therefore are not preempted.
The Court reasoned that state-law claims requiring brokers to exercise reasonable care when selecting motor carriers directly relate to motor vehicle safety. As a result, those claims constitute an exercise of a state’s safety regulatory authority and may proceed under state law despite the FAAAA’s general preemption provisions.
The decision answers a question that has divided federal courts for years: whether freight brokers can be held liable under state law for negligently selecting unsafe motor carriers. The Court concluded that they can.
Increased Freight Broker Liability and Litigation Risk
The Montgomery decision removes a significant defense that freight brokers have relied upon to obtain early dismissal of negligent-hiring claims.
As a result, brokers should expect an increase in trucking accident litigation naming both motor carriers and freight brokers as defendants. Plaintiffs’ attorneys may seek to expand theories of liability by challenging the adequacy of carrier-selection procedures, safety reviews, and other due diligence efforts.
The ruling may also prompt litigation over whether brokers have ongoing responsibilities to monitor carriers after initial approval and onboarding.
Carrier Selection Practices Will Receive Greater Scrutiny
Because negligent-hiring claims can now proceed under state law, a broker’s carrier-selection and onboarding practices may become central issues in future litigation.
Transportation brokers should consider reviewing and strengthening procedures related to:
FMCSA safety ratings and safety records
Carrier operating authority and regulatory compliance
Insurance verification
Crash history and out-of-service rates
Driver qualification information
Documentation of carrier-selection decisions
Maintaining thorough records of carrier evaluations, safety reviews, and onboarding decisions may become increasingly important when defending against negligent-hiring claims.
Notably, the concurrence suggested that brokers who maintain reasonable carrier-selection policies and conduct meaningful due diligence before tendering loads may be better positioned to defend against negligence allegations.
How Transportation Brokers Should Respond to the Montgomery Decision
The Supreme Court’s decision significantly changes the legal landscape for freight brokers and transportation brokers. The ruling increases potential exposure to negligent-hiring claims and underscores the importance of robust carrier-selection and risk-management practices.
Transportation brokers should evaluate their onboarding procedures, documentation protocols, carrier-vetting standards, and safety review processes to assess potential liability in light of the Court’s decision. Strengthening due diligence procedures and maintaining detailed records may help reduce risk and improve defensibility in future litigation.
For guidance regarding freight broker liability, FAAAA preemption, negligent-hiring claims, transportation broker litigation, or the impact of the Montgomery decision on your operations, contact a member of Varnum’s Litigation Practice Team.
Update June 3, 2026: The U.S. Department of Justice has formally appealed the Court of International Trade’s universal injunction requiring U.S. Customs and Border Protection to issue IEEPA tariff refunds to all affected importers. The appeal will be heard by the U.S. Court of Appeals for the Federal Circuit and seeks to limit refund relief to importers that have filed their own lawsuits. If the government obtains a stay or ultimately prevails on appeal, importers that have not filed suit could lose their current pathway to recover refunds on liquidated entries.
On May 29, 2026, the federal government notified the court in V.O.S. Selections, Inc. v. United States, Court No. 25-00066, that it intends to appeal the U.S. Court of International Trade’s universal injunction requiring U.S. Customs and Border Protection (CBP) to issue refunds of tariffs imposed under the International Emergency Economic Powers Act (IEEPA).
The appeal could have significant consequences for importers seeking IEEPA tariff refunds, particularly those that have not filed their own lawsuits challenging liquidated tariff payments. If the government obtains a stay or prevails on appeal, importers who have not filed their own lawsuits could lose their pathway to refunds on liquidated entries.
Court of International Trade Ordered IEEPA Tariff Refunds
Several importers filed lawsuits in the Court of International Trade challenging the legality of tariffs imposed under IEEPA. On April 17, 2026, the Court entered an injunction directing IEEPA tariff refunds. The Court later expanded that relief through a universal injunction requiring CBP to reliquidate entries and issue refunds to all affected importers, including companies that had not filed lawsuits.
CBP is currently processing approximately $85 billion in refunds for tariffs on unliquidated entries, representing over half the total IEEPA tariffs paid. According to the agency, refunds are being issued in phases through its CAPE processing system because immediate full compliance is not feasible.
Federal Government Plans Appeal of Universal IEEPA Tariff Refund Order
In its recent filing, the government stated that it “intend[s] to appeal the Court’s universal injunction and to seek a stay of the injunction except as to the particular importer plaintiffs in each case in which the Court has entered the injunction.”
The government argues that the universal injunction exceeds the Court’s jurisdiction and equitable authority under Trump v. CASA, Inc., 606 U.S. 831, 839 (2025).
If the government files the appeal and obtains a stay from the U.S. Court of Appeals for the Federal Circuit, the universal refund order would be paused while the appeal is pending. Critically, the government has indicated the appeal targets only the universal scope of the injunction, relief for the named plaintiffs would remain intact.
What the Appeal Means for Importers Seeking IEEPA Tariff Refunds
The appeal creates the greatest uncertainty for importers that paid IEEPA tariffs but have not filed their own cases.
The universal injunction currently provides a mechanism for those importers to obtain refunds on liquidated entries without pursuing individual litigation. If the Federal Circuit stays the injunction, or ultimately reverses the universal relief order, importers that are not plaintiffs may no longer have access to those refunds.
By contrast, importers that are already parties to pending IEEPA tariff refund lawsuits should continue to benefit from importer-specific relief ordered by the court. This distinction makes the question of whether to file suit increasingly urgent for importers who have not yet done so.
Should Importers File an IEEPA Tariff Refund Lawsuit?
Importers evaluating whether to pursue IEEPA tariff refund claims should be aware that the Court of International Trade has established a streamlined process for new cases.
Under Administrative Order 25-02, new cases challenging tariffs based on IEEPA and the relevant executive orders are automatically stayed upon filing. No order of assignment is issued before entry of the stay, and the Clerk maintains a schedule of all stayed cases. The Court has indicated it expects to determine next steps for these cases following a final, unappealable decision in V.O.S. Selections.
As a result, filing a new IEEPA tariff refund lawsuit generally does not require immediate discovery, motion practice, or hearings. Instead, the primary benefit of filing is preserving the importer’s position while the legality of the tariffs and the scope of available funds continue to be litigated.
For importers who have paid IEEPA tariffs on liquidated entries but have not yet filed suit, initiating a case now may be the most efficient step to preserving refund rights while the appeal proceeds.
Legal Guidance for IEEPA Tariff Refund Claims
Varnum attorneys represent importers pursuing IEEPA tariff refund claims before the Court of International Trade. Businesses with questions regarding IEEPA tariffs, CBP refund procedures, tariff litigation, or potential refund eligibility should contact a member of Varnum’s Litigation Practice Team.
Owning a winery, brewery, or distillery is often a labor of love as much as it is a business endeavor. Whether family-owned or a newer venture, estate planning for alcohol beverage businesses must address ownership, licensing compliance, and long-term operational continuity.
Licensing and Regulatory Compliance
Alcohol beverage businesses are heavily regulated at the federal, state, and sometimes local levels. A key estate planning issue is that alcohol licenses are often not automatically transferable upon death or incapacity and may require regulatory approval or reapplication.
Without proper planning, a business may experience operational delays or interruption while licensing authorities review new ownership or management structures. Estate plans should therefore include a strategy to maintain compliance and continuity during transitions.
Business Succession and Operational Control
Succession planning should identify who will:
Inherit ownership interests
Manage day-to-day operations
Oversee licensing and regulatory compliance
Trusts and business entities can help maintain continuity where ownership is divided among beneficiaries or where the beneficiaries are not active operators. It is important to define the relationship between ownership and management control to support continued operations during post-death administration, and governance documents should also address whether the business will remain family-owned, be sold, or transition over time.
Valuation and Transfer of Business Interests
Wineries, breweries, and distilleries often include a mix of real estate, equipment, inventory, intellectual property, and brand goodwill. These businesses may also have significant debt or variable cash flow, making valuation more complex.
A clear valuation strategy is important for estate tax planning, gifting, and ownership transfers. Early planning can support more efficient use of transfer techniques such as trusts or other entity structures where appropriate.
Intellectual Property, Brand Value, and Real Estate
Intellectual property, such as trademarks, trade names, and proprietary recipes, can be a significant component of business value. These assets require careful documentation and ongoing protection.
In addition, many owners seek to preserve agricultural or production land as part of their legacy. Conservation easements and similar tools may be used where consistent with broader estate and business succession goals.
Legacy and Long-Term Planning
Estate planning should reflect the owner’s long-term goals for the business, including whether it should continue operating, be sold, or be wound down over time. These intentions can be incorporated into governing documents to guide future fiduciaries and decision-makers.
Coordinated Planning Approach
Effective estate planning for alcohol beverage businesses requires coordination between estate planning counsel, business advisors, and regulatory counsel to address licensing requirements, tax considerations, and operational continuity.
On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199, significantly shifting how the agency evaluates adjustment of status applications, the process for obtaining a green card while present in the United States.
Key Changes to the Adjustment of Status Process
USCIS now characterizes adjustment of status as an “extraordinary” act of “administrative grace” rather than a routine step in the immigration process, and it directs officers to favor consular processing abroad as the default pathway. This marks a shift from longstanding agency practice.
Officers must consider all relevant factors, including immigration history, visa compliance, moral character, and family ties. Applicants may need to demonstrate “unusual or even outstanding equities” for approval. The memo applies to all pending applications as well as new filings, and USCIS has indicated that additional category-specific guidance may follow.
A USCIS spokesperson recently said that individuals whose roles provide “economic benefit” or are in the “national interest” will likely be permitted to remain in the United States and pursue adjustment of status domestically.
The impact of the memo will vary depending on individual circumstances, including visa category, immigration history, and family situation.
How the USCIS Policy Affects Green Card Applicants
The memo does not change the law or prohibit new Form I-485 filings. However, applicants may see increased Requests for Evidence, Notices of Intent to Deny, and longer processing times. A shift toward consular processing could also extend wait times at U.S. consulates, many of which are already experiencing staffing constraints.
Varnum immigration attorneys are closely monitoring the situation and tracking further guidance from USCIS. As implementation develops, we will review cases to assess the most appropriate path forward, whether through adjustment of status, consular processing, or supplementation of pending applications with additional evidence of favorable equities.
Varnum recently hosted a webinar addressing employee bonuses, overtime calculations, Fair Labor Standards Act (FLSA) compliance, and new reporting obligations under the One Big Beautiful Bill Act (OBBBA). The program provided practical guidance for HR professionals, payroll administrators, and employers managing wage and hour compliance obligations in 2026 and beyond.
Below are key takeaways regarding overtime pay requirements, nondiscretionary bonuses, and OBBBA reporting obligations.
Why Bonus and Overtime Compliance Matters
Many employers use bonuses to support employee retention, productivity, and performance goals. However, under the FLSA, certain bonuses must be included in an employee’s regular rate of pay when calculating overtime compensation.
At the same time, the OBBBA introduces new payroll reporting requirements related to qualified overtime compensation and qualified tips for tax years 2025 through 2028. Employers should review payroll systems and compensation practices now to reduce compliance risks.
FLSA Overtime Rules and the Regular Rate of Pay
The FLSA requires nonexempt employees to receive overtime pay at one and one-half times their regular rate of pay for hours worked over 40 in a workweek. A workweek is typically a fixed and recurring period of 168 hours. Compensable time may include work performed at home, travel time, waiting time, training, and probationary periods.
The regular rate of pay is not always the same as an employee’s hourly wage. Under the FLSA, the regular rate generally includes most forms of compensation and is calculated by dividing total included compensation by the total hours worked during the workweek.
Because the regular rate affects overtime calculations, employers should carefully evaluate whether bonuses and incentive payments must be included.
Discretionary vs. Nondiscretionary Bonuses
Whether a bonus must be included in the regular rate calculation depends on whether it is discretionary or nondiscretionary.
Discretionary Bonuses
Discretionary bonuses, where the employer retains genuine discretion over both the fact and amount of payment, are excluded from the regular rate. Examples include employee-of-the-month awards, severance bonuses, and bonuses for extraordinary efforts not tied to pre-established criteria.
Nondiscretionary Bonuses
Nondiscretionary bonuses generally must be included in overtime calculations because they are tied to measurable expectations or communicated in advance to employees. Common examples include production, attendance, quality, and safety bonuses.
The Department of Labor considers bonuses nondiscretionary when they are intended to encourage employees to work more steadily, rapidly or efficiently, or to remain employed.
Labels alone are not determinative. A bonus described as “discretionary” may still qualify as nondiscretionary if employees expect payment based on established criteria, prior practice, or other communications from the employer.
How Bonuses Affect Overtime Calculations
When a nondiscretionary bonus applies to a single workweek, the employer must include the bonus in the employee’s regular rate calculation for that week to determine whether additional overtime compensation is owed.
More complex issues arise when bonuses cover multiple workweeks, such as quarterly or annual bonuses. In those situations, the bonus generally must be allocated across the workweeks in which it was earned using a reasonable and equitable method. Employers may then owe additional overtime compensation for weeks in which overtime was worked.
If overtime is paid before the final bonus amount is known, the employer may initially calculate overtime without the bonus. Once the bonus amount is finalized, however, the employer must recalculate overtime and issue any additional overtime pay owed.
Employers cannot avoid overtime obligations simply because a bonus is paid later.
OBBBA Reporting Requirements
The OBBBA created new federal tax deductions for qualified overtime compensation and qualified tips for tax years 2025 through 2028.
The updated 2026 Form W-2 includes new Box 12 reporting instructions related to these deductions. Employers should confirm payroll systems are configured to separately track and report qualifying compensation.
Qualified overtime compensation does not include all overtime pay. In general, it includes only the premium half-time portion required under Section 7 of the Fair Labor Standards Act for hours worked over 40 in a workweek.
Qualified overtime compensation generally does not include:
Overtime paid under collective bargaining agreements
Overtime required solely by employer policy
Contract-based overtime arrangements
Overtime paid under more generous state or local standards
Employers with Michigan employees should review Michigan House Bill 4961, a recent law which applies a similar “no tax on overtime and tips” concept to Michigan state income tax for tax years 2026 through 2028.
Common Wage and Hour Compliance Mistakes
HR and payroll teams should remain alert to several common FLSA compliance risks, including:
Excluding nondiscretionary bonuses from overtime calculations
Failing to recalculate overtime after deferred bonus payments
Misclassifying all overtime pay as qualified overtime compensation under the OBBBA
Failing to coordinate among HR, payroll, finance, and legal teams
Relying on bonus labels instead of analyzing actual payment structure and employee expectations
Next Steps for Employers
Employers should review bonus structures, overtime calculation procedures, and payroll reporting systems to confirm compliance with the FLSA and OBBBA requirements.
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