Santos v. Lidl

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.