7th Circuit: Overtime pay not mandated for incidental activities

The Fair Labor Standards Act (FLSA) requires an employer to pay overtime for activities that are merely incidental to employees’ core job responsibilities when the employer elects—either by contract, custom, or practice—to pay for those incidental activities. However, are those incidental activities compensable even when an employee fails to meet the requirements established by the employer’s custom or practice? The U.S. Court of Appeals for the 7th Circuit (whose rulings apply to all Illinois, Indiana, and Wisconsin employers) recently addressed this question.

Background

The FLSA was enacted in 1938 and requires certain employers to pay overtime. Under the Act, only certain activities qualify for overtime, including activities integral to an employee’s job—principal activities—so long as an employer has reason to know the employee is performing those activities.

Alternatively, activities that are “merely incidental” to an employee’s core job responsibilities don’t count toward overtime. But when an employer elects—either by contract, custom, or practice—to pay for those incidental activities, the FLSA obliges the employer to pay overtime for them, as well.

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