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2d. Cir.: When Employees Required to Arrive Early But Unable to Enter Workplace or Clock In, Pre-Shift Time is Compensable Work
When a worker is told to arrive early but cannot enter the workplace or clock in until a manager arrives, is that time unpaid “waiting”—or time the employer must count as work? In Santos v. Lidl, the U.S. Court of Appeals for the Second Circuit said the worker’s allegations could support a claim for compensation, because waiting time may be paid time when an employer requires an employee to report ready to work and the employee cannot begin for reasons outside their control.
The decision does not establish that Lidl violated wage laws or that Santos is owed wages. The court vacated the dismissal and sent the case back for further proceedings, leaving the underlying claims unresolved.
What Happened in Santos v. Lidl?
Sandra Santos worked as a store clerk and stocker at Lidl grocery stores in West Babylon, New York, from approximately July to November 2021.
She alleged that Lidl scheduled her for opening shifts beginning at 5:00 a.m. but required her and other opening-shift employees to report 15 minutes earlier.
According to the complaint, employees sometimes found the store locked because opening managers had not arrived; workers could not access the time clocks until they were let inside.
Santos alleged that this happened about once a week, resulting in 15 minutes of unpaid time per week, and that overtime wages were implicated during five weeks of her employment.
She brought claims under the federal Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), seeking compensation for the alleged unpaid waiting time.
The Legal Issue: When Is Waiting Time Compensable?
Lidl argued that the Portal-to-Portal Act barred Santos’s claim because the waiting happened before her scheduled shift and was not compensable work time.
That federal law generally excludes certain activities before or after an employee’s principal work, but the Second Circuit explained that not all waiting before a shift is treated the same way.
The key distinction is whether an employee waited to be engaged—for example, by arriving early voluntarily—or was engaged to wait because the employer required the employee to report at a particular time, ready to work, when no work could begin for a reason beyond the employee’s control.
The court rejected Lidl’s argument that this principle applied only to traditional on-call jobs, such as firefighters. It said the regulation’s description of engaged-to-wait time was not limited to particular occupations.
Why the Court Allowed the Claim to Proceed
At this stage, the court had to accept Santos’s factual allegations as true and draw reasonable inferences in her favor.
Santos alleged that Lidl required her to arrive early and be ready to work, but that she could not enter the store or start work until a manager let her in.
The Second Circuit concluded that, if those allegations are proven, the waiting time could be compensable under the FLSA.
The court also declined to dismiss the claim as too minor, or “de minimis,” based only on the complaint. It said it could not then determine that 15 minutes of unpaid time per week was legally insignificant or that recording the time would be too difficult.
The Court’s Decision
The Second Circuit vacated the dismissal of Santos’s FLSA and NYLL time-shaving claims and remanded the case to the district court for further proceedings.
The court assumed, without deciding, that the NYLL and FLSA claims rose or fell together on the time-shaving issue because both parties treated them that way in their appellate briefing.
One judge dissented, reasoning that Santos’s pre-shift wait was not part of her principal work and should not be compensable under the Portal-to-Portal Act.
What the Decision May Mean for Employees and Employers
For Employees
Santos shows that being required to arrive early does not automatically make every minute before a shift compensable. But when an employer requires an employee to report ready to work and the employee cannot start because of an employer-related obstacle, the waiting time may support a wage claim.
If you believe you were required to wait before clocking in, keep records of your scheduled and actual arrival times, when you were able to enter and clock in, and any instructions about arriving early. Santos’s claim centered on the alleged early-reporting requirement and the time employees could not enter the store.
For Employers
Employers should review opening procedures, timekeeping practices, and instructions given to employees about when to report. If employees are required to arrive before their shifts but cannot begin work because the workplace is inaccessible, the timekeeping process may create a wage-and-hour risk under the reasoning in Santos.
The decision also makes clear that whether short waiting periods are too small to count cannot necessarily be resolved from a complaint alone; the circumstances and evidence may matter.
Bottom Line
Santos v. Lidl is a reminder that unpaid time before a shift may be legally significant when an employee is required to report ready to work but cannot begin because of circumstances beyond their control. The appeal ruling allowed Santos’s claims to proceed; it did not decide whether Lidl ultimately owes her or other workers compensation.
If you are an employee in a similar situation, document the reporting requirement and the time you are unable to work, and consider speaking with an employment attorney about your specific circumstances.
Click Santos v. Lidl to read the entire decision.
9th Cir.: Time Spent by Call Center Workers Booting Up Computers is Compensable
Cadena v. Customer Connexx LLC
The time a group of call center workers spent booting up their computers is inextricably intertwined with their work and therefore compensable under the Fair Labor Standards Act (FLSA), the Ninth Circuit ruled this week, overturning a win a district court handed to their employer, and joining sister circuits who have reached a similar conclusion.
In a unanimous published decision, the Ninth Circuit reversed a Nevada district court’s 2021 decision which had granted call center employer Customer Connexx LLC summary judgment on the workers’ overtime suit, reasoning that the workers needed to have a functional computer in order to do their jobs. Thus, the panel concluded that the time the call center workers spent booting up the computers is compensable under the Portal-to-Portal Act.
“The employees’ duties cannot be performed without turning on and booting up their work computers, and having a functioning computer is necessary before employees can receive calls and schedule appointments,” U.S. Circuit Judge Jay S. Bybee wrote on behalf of the panel.
Under the Portal-to-Portal Act, which amended the FLSA, employers are not required to pay for time workers spend traveling to and from the place of principal work activities or for time they spend on certain preliminary or postliminary activities which are not integral to their work.
Here, the workers sued in 2018, alleging that Connexx, failed to pay them overtime as required by the FLSA and Nevada law, because they failed to track and compensate them for the time they spent booting up and turning off their computers after they logged into and out of the company’s timekeeping system.
The district court granted Connexx summary judgment in July 2021, finding that the tasks the workers completed before and after they logged out of the company’s timekeeping system were not compensable preliminary and postliminary activities because they did not meet the legal standard to be considered part of their jobs.
The Ninth Circuit disagreed and reversed, saying the district court erred in focusing its reasoning on whether the activities were essential to the workers’ jobs and should have instead put emphasis on whether starting the computer led the call center workers to be able to perform their work. Discussing the issue, the Court explained:
When the employees’ duties are understood in this way, the electronic timekeeping system becomes a red herring. It is a convenience to the employer… It has no impact on the ‘integral and indispensable’ analysis except to show us when Connexx began counting the employees’ time.
Because the workers needed to have “a functional computer … turning on or waking up their computers at the beginning of their shifts is integral and indispensable to their principal activities,” the panel concluded.
The Ninth Circuit also rejected Connexx’s argument that the district court’s decision should be affirmed because the pre-shift time was de minimis and because the company was not aware of the alleged overtime, noting that those are “factual questions” that the lower court didn’t address, and thus not properly before it.
Of note, the panel clarified in a footnote that its opinion focused on the pre-shift activities, and stated that its opinion should not be read to hold that turning the computers off was an integral part of the workers’ jobs.
The Department of Labor had filed an amicus brief in support of the workers, in which it argued the time at issue was compensable under the FLSA, because the workers could not do their jobs without booting up the computers.
Click Cadena v. Customer Connexx LLC to read the entire decision.
*** Andrew Frisch and Morgan & Morgan are actively handling and investigating similar cases on behalf of call center workers. If you believe your call center employer is not paying you for all time worked, contact us for a free consultation at (888) OVERTIME [888-683-7846] today. ***
W.D.Pa.: Security Guards Not Entitled to Be Paid For Pre- and Postliminary Work or Time Spent Cleaning Uniforms, As Required By Employer; Complaint Dismissed
Schwartz v. Victory Sec. Agency, LP
This case was before the court on defendant’s motion to dismiss plaintiffs’ complaint for failure to state a claim. The plaintiffs, security guards employed by defendant, alleged that the defendant has failed to properly compensate them for pre- and post- shift work that defendant required them to perform as part of their jobs. In its decision, the court agreed, largely citing in apposite case law in support of its decision.
First, the court held that time spent performing pre- and post-liminary duties required by defendant, for which no compensation was received, was precluded by the portal-to-portal act. Accepting the facts underlying this claim, as required on the motion to dismiss the court explained:
“Throughout the relevant time period, Defendant ex-pected Plaintiffs “to be available to work before commencement of their shift, during their promised meal break and after completion of their assigned shift for work-related tasks.” Id. at ¶ 17. Plaintiffs per-formed pre-shift work including: receiving pass down instructions, checking equipment, reviewing post orders, collecting schedules, meeting with supervisors, guarding, monitoring, patrolling, inspecting, and surveying. Id. at ¶ 19. Plaintiffs regularly performed post-shift work that included: preparing logs and event reports, collecting schedules, meeting with supervisors and providing pass down instructions. Id. at ¶ 29. Such work was undertaken by Plaintiffs for approximately 15–30 minutes of pre-shift work each day and 15 minutes to two hours of post-shift work per week. Id. at ¶¶ 26, 36. Defendant knew that such work was regularly performed because “Defendant’s agents regularly encouraged, instructed, suffered and per-mitted” Plaintiffs to perform this work and observed them doing so. Id. at ¶¶ 22, 31. Plaintiffs did not receive full compensation for the pre-shift and post-shift work that they performed because Defendant’s timekeeping and pay practices improperly placed the burden on Plaintiffs. Id. at ¶ 23, 33. Defendants also failed to implement any rules, systems or procedures to prohibit Plaintiffs from performing such work or to ensure that they were properly paid for such work. Id. at ¶ 24, 34.”
Notwithstanding these detailed allegations, the court concluded “Plaintiffs do not detail how Defendant’s failed to compensate them for pre- and post-shift work” and dismissed the claim (without prejudice) on this basis.
Addressing plaintiffs’ second claim, regarding defendant’s failure to pay them for time (1 to 2 hours per week) they were required to spend cleaning their uniforms, in order to meet defendant’s dress code requirements, the court found this claim equally unavailing. After a brief discussion of recent case law regarding the definition of tasks that are integral to work (so as to make them compensible), the court summarily concluded that “[h]ere… while Plaintiffs may have been required to wear and therefore maintain their uniforms, such actions were not integral and indispensible to Plaintiffs’ principal activity, providing security.” In so doing, the court ignored the obvious parallels of the uniform maintenance to other cases where courts found that similar activities were integral (i.e. feeding, training and walking of K-9 dogs by police officers while “off-duty”). Given the fact that the defendant required the plaintiffs to wear these uniforms, and that they maintain the uniforms in a presentable fashion it is unclear how the court reached its conclusion in this regard.
It will be interesting to see whether the plaintiffs will appeal this decision, which seems to be out of line with prevailing authority outside of the Third Circuit regarding these issues.
Click Schwartz v. Victory Sec. Agency, LP to read the entire Decision.
E.D.Pa.: Time Spent Going Through Security And Walking From Security To Perform Production Work Not Compensable; Excluded By Portal-to-Portal Act
Sleiman v. DHL Express
This case was before the Court on Defendant’s Motion to Dismiss, based on its claims that certain activities that were the subject of Plaintiff’s “off-the-clock” claims were not compensable as a matter of law. In granting Defendant’s Motion, the Court addressed each of the the three types of activity in turn and found all three excluded by the Portal-to-Portal Act as pre- and/or postliminary in nature and not compensable “work” activity.
Defendant DHL Express operates a mail sorting facility in Breinigsville, Pennsylvania, and employs about 400 sorters, yard jockeys, and others. Plaintiff is a mail worker and seeks to represent Mail Workers who have been employed by Defendant during the past three years. It was undisputed that Defendant has paid Plaintiff and prospective class members for the time that they engage in actual production activities. Pursuant to Defendant’s internal policy, Class Members are randomly selected on a daily basis to proceed through a security screening before clocking in and after clocking out. Class Members are not compensated for time spent waiting for the security screening process or for time spent clearing the security process. Class Members are also not compensated for the time it takes for them to walk from the entrance to the time clock at Defendant’s facility and the time it takes to walk from the time clock to the exit.
Plaintiff brought a two-count complaint, alleging violations of the FLSA and WPCL. Plaintiff alleged that failure to compensate Class Members for the following three activities was a violation of these statutes: (1) waiting in line to go through security screening before entering and exiting Defendant’s facility; (2) participating in the security screening itself; and (3) walking between the security screening area and time clocks where Mail Workers clock in and out. Plaintiff seeks an award of damages in the form of reimbursement for unpaid wages, costs and attorneys fees, and other equitable relief.
Citing to several cases, as well as the Portal-to-Portal Act itself, the Court granted Defendant’s Motion to Dismiss.