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Not all waiting time is treated alike under the Fair Labor Standards Act (“FLSA”). In its October 13, 2026 decision in Santos v. Lidl US, LLC, the Second Circuit held that employees who are required to report at a set time, but who cannot begin work for reasons beyond their control, may be entitled to pay for that waiting time. The court drew on a distinction from longstanding Department of Labor regulations: an employee who is “engaged to wait” must be compensated, while one who has merely “waited to be engaged” need not be. Applying that rule, the court revived a grocery clerk’s claims that Lidl required her to arrive 15 minutes before her shift, only to leave her locked out until a manager arrived.

Background

Sandra Santos worked as a store clerk and stocker at a Lidl supermarket in West Babylon, New York. Santos was scheduled to work the opening shift beginning at 5:00 a.m., but Lidl allegedly required her and other opening-shift employees to report 15 minutes before their listed start times. On some mornings, the stores were still locked when employees arrived, requiring them to wait for an opening manager to let them in. Because the time clocks were inside the stores, on the days those managers arrived late, employees could not clock in and went unpaid for the time they spent waiting. Santos alleged that this happened about once a week, costing her 15 minutes of pay each week, and that in five of those weeks the unpaid time should have been paid as overtime.

Procedural Posture

 Santos sued Lidl in the U.S. District Court for the Eastern District of New York alleging a claim for “time-shaving” under the FLSA and the New York Labor Law (“NYLL”). Lidl moved to dismiss Santos’ claims, arguing that the fifteen minute wait time was not compensable under the Portal-to-Portal Act. The district court agreed, dismissing both claims with prejudice and holding that the Portal-to-Portal Act barred recovery for the waiting time because it was a non-compensable “preliminary” activity.

Appealing to the Second Circuit, Santos asserted that Lidl “engaged her to wait” by requiring her to report to work fifteen minutes early, and she was only unable to clock in and begin work because a Lidl manager was not present to open the store. Santos maintained the waiting time was compensable according to FLSA regulations and Supreme Court precedent.

Second Circuit Holding

The Second Circuit held that Santos plausibly alleged she was engaged to wait by Lidl and the time she spent waiting was compensable. In so holding, the Court rejected Lidl’s arguments that Santos’ waiting time was non-compensable because she could have used the time to her benefit or, alternatively, that Santos’s waiting time was de minimis.

The Court began with the historical backdrop. Because the FLSA fails to define “work” or “workweek,” the Court looked to a series of Supreme Court decisions from the 1940s that read those terms broadly.  One of them, Armour & Co. v. Wantock, held that firefighters’ on-call hours were compensable because an employer may hire workers “to do nothing but wait for something to happen.” Congress responded in 1947 with the Portal-to-Portal Act. The Act relieves employers of FLSA liability for time employees spend “walking, riding, or traveling to and from the actual place of performance” of their principal activities, and for activities “preliminary to or postliminary to” those principal activities.

The court relied primarily on the Department of Labor’s regulations implementing the Portal-to-Portal Act, particularly 29 C.F.R. § 790.7(h). Under that regulation, an employee who voluntarily arrives earlier than required is engaged in a preliminary activity while waiting for work to begin.  By contrast, when an employer requires an employee to report at a “particular hour,” and the employee arrives “ready and willing to work” but has nothing to do “for some reason beyond his control,” the waiting is “an integral part of the employee’s principal activities.” As the regulation puts it, the second employee “was engaged to wait,” while the first “waited to be engaged.”

The court then turned to IBP, Inc. v. Alvarez to show how the Supreme Court has applied this distinction. In IBP, the Court held that meat-processing employees’ time walking between the changing area and the production floor fell “within a continuous workday” and was compensable under the FLSA. However, time spent waiting to put on protective gear was not compensable because that waiting was not “integral and indispensable” to the job.  The Supreme Court added that its “analysis would be different” if the employer had “required its employees to arrive at a particular time in order to begin waiting.” The Second Circuit explained that in that scenario § 790.7(h) would apply because the employer would have engaged the workers to wait.

The Court further rejected Lidl’s argument that Integrity Staffing Solutions, Inc. v. Busk abrogated § 790.7(h). Busk holds that a preliminary or postliminary activity, such as security screenings, does not become compensable simply because the employer requires it.  But the Court explained that Busk “doesn’t address the distinct scenario of a worker engaged to wait.” Instead, § 790.7(h) reflects the “longstanding principle that an employer may choose to engage employees to be present at a worksite ‘ready and willing to work’ whether there is work to be done at that hour or not,” because “[r]eadiness to serve may be hired, quite as much as service itself.” The Court refused to limit the “engaged to wait” rule to traditional on-call employees like firefighters, finding no such limit in the regulation’s text.

Finally, the Court declined to affirm the dismissal on the alternative grounds that Santos’ claim was barred as de minimis. The Court applied the Circuit’s three-factor de minimis test which consider “(1) the administrative difficulty of recording the time; (2) the size of the claim in the aggregate; and (3) whether the tasks occur regularly.” Circuit precedent did not support the conclusion that 15 minutes of uncompensated time a week is de minimis, as reflected in Addison v. Huron Stevedoring Corp., a 1953 decision rejecting a district court’s conclusion that unpaid compensation of less than $1.00 per week was de minimis. Nor could the Court conclude, based on the complaint alone, that recording the waiting time would be too administratively difficult to calculate.

Key Takeaways for Employers

The Santos decision provides important guidance to employers in distinguishing between compensable and non-compensable waiting time under the FLSA. Employers should recognize that when employees are required to report at a particular time and are ready and willing to work, time spent waiting to begin work for reasons beyond their control may be compensable. As the Second Circuit explained, the principle that an employee may be “engaged to wait” is not limited to traditional on-call employees, such as firefighters, but may apply in more traditional workplaces as well.

Employers should therefore review their scheduling and timekeeping practices, particularly where employees are required to report before they can access the workplace or clock in. Employers should also be mindful that regularly recurring periods of unpaid time may not be considered de minimis merely because each individual period is relatively short.

If you have questions about this decision or would like assistance reviewing your timekeeping, scheduling, or wage-and-hour policies and practices, please contact the authors or any member of Wiggin and Dana’s Labor, Employment, and Benefits Department.