Monthly Archives: November 2026

November 6, 2026

Do We Owe Overtime for More Than 14 Hours’ Work In One Day?

Steven Eheart

By Steven Eheart

Question: Must a nonexempt employee who is scheduled to work 14 hours in a two-week pay period be paid overtime if they work more than the 14 hours?

Answer: This question gets at four core things to know about overtime:

First, overtime is based on hours an employee works, not hours the employee is scheduled to work. When evaluating whether overtime is owed, ignore any scheduled hours, and focus only on hours the employee actually worked.

Second, whether you must pay overtime is based only on hours worked during each regular workweek. So, if the regular workweek is Sunday at 12:00 a.m. to Saturday at 11:59 p.m., only the hours worked during that period are relevant to whether overtime is owed. The regular pay period is immaterial to whether overtime is paid, and you shouldn’t average hours worked in two or more workweeks to compute overtime.

Third, overtime under the Fair Labor Standards Act (FLSA) is due only if an employee works more than 40 hours during a regular workweek. Read more >>

November 6, 2026

DOL Guidance Pushes Back on Wave of Tobacco Surcharge Lawsuits

Alex Smith

by Alex Smith

Over the past couple of years, numerous large employers and their health plan fiduciaries have faced lawsuits regarding their health plan’s tobacco surcharge. A tobacco surcharge wellness program typically charges a higher monthly premium to employees and covered dependents who smoke or otherwise use tobacco products to account for some of the higher medical costs associated with tobacco use. Tobacco users can typically avoid the surcharge by completing a smoking cessation program, regardless of whether they actually quit.

This wave of putative class action lawsuits began in 2024 even though employer tobacco surcharges have been around for years and the Health Insurance Portability and Accountability Act (HIPAA) regulations permitting the surcharges were last updated in 2013. Since then, numerous lawsuits challenging employer health plan tobacco surcharge programs have been filed. Courts have tended to side with employers, but rulings have been mixed.

What the lawsuits claim

The lawsuits typically allege that the employer and its health plan fiduciaries breached their fiduciary duties under the Employee Retirement Income Security Act (ERISA) by impermissibly discriminating against tobacco users by charging higher premiums because of some combination of the following:

  • The wellness program doesn’t provide a compliant, reasonable alternative standard because the individual must become tobacco-free.
  • A participant who completes the smoking cessation program alternative isn’t able to avoid the full amount of the surcharge for the plan year.
  • A reasonable alternative standard, such as a smoking cessation program, wasn’t disclosed to participants.

The 2013 HIPAA regulations require health plans that use a tobacco surcharge wellness program to provide a reasonable alternative standard that doesn’t involve becoming tobacco-free and to enable individuals who complete the reasonable alternative standard to avoid the penalty or receive the reward. Read more >>