Required Readiness to Work Makes Employer-Delayed Waiting Compensable Under the FLSA

1. Introduction

In Santos v. Lidl, the Second Circuit addressed whether employees must be compensated when their employer requires them to arrive before their listed shift begins but prevents them from working because the workplace remains locked. The majority held that the Portal-to-Portal Act does not categorically exclude this waiting time from compensation under the Fair Labor Standards Act (“FLSA”). An employee required to report at a particular time, ready to work, may be “engaged to wait” when circumstances beyond the employee’s control prevent work from beginning.

The decision applies a longstanding distinction to an ordinary retail setting: an employee who voluntarily arrives early may merely be waiting to become engaged, while an employee whose presence and readiness are required may already be performing compensable work. The employer’s listed shift time and the employee’s inability to access a time clock do not conclusively determine when compensable work begins.

Importantly, this was a pleading-stage decision. The court reinstated Sandra Santos’s federal and state time-shaving claims; it did not determine that Lidl had violated the law, award damages, or certify a collective or class action.

2. Background and Procedural History

Santos worked as a store clerk and stocker at Lidl grocery stores in West Babylon, New York, from approximately July through November 2021. She alleged that she earned $16.50 per hour and generally worked four ten-hour opening shifts each week, listed as running from 5:00 a.m. to 3:00 p.m.

According to the complaint, Lidl required opening-shift employees to report fifteen minutes before their listed start time. For Santos, that meant arriving at 4:45 a.m. Approximately once a week, however, the opening manager did not arrive to unlock the store until 5:00 a.m. or later. Employees could not access the time clocks inside the store and therefore received no compensation for the intervening wait.

Santos alleged approximately fifteen minutes of unpaid waiting time each week, with overtime compensation due for five weeks. She brought:

• An FLSA time-shaving claim proposed as a collective action under 29 U.S.C. § 216(b); and
• A New York Labor Law (“NYLL”) time-shaving claim proposed as a class action.

The Eastern District of New York dismissed both claims with prejudice. It concluded that the waiting was a preliminary activity excluded by the Portal-to-Portal Act and treated the NYLL claim as coextensive with the FLSA claim.

After dismissing the federal claim, the district court also declined supplemental jurisdiction over a separate claim concerning the timely payment of wages under NYLL § 191. Santos did not challenge that ruling on appeal, and the Second Circuit did not address it.

3. Summary of the Opinion

The Second Circuit vacated the dismissal of the FLSA and NYLL time-shaving claims and remanded for further proceedings. Its central conclusions were:

1. Required readiness can constitute compensable waiting. Under 29 C.F.R. § 790.7(h), an employee required to report at a specified time, ready and willing to work, is engaged to wait when work cannot begin for reasons beyond the employee’s control.
2. The Portal-to-Portal Act does not exclude all waiting before productive tasks begin. The character and circumstances of the waiting matter.
3. Security-screening precedent does not eliminate the engaged-to-wait doctrine. An employer’s requirement alone does not make an otherwise preliminary activity compensable, but hiring an employee’s readiness to work presents a distinct situation.
4. Santos pleaded sufficient facts. Her allegations established both a mandatory reporting time and an employer-controlled obstacle to starting work.
5. The alleged time was not demonstrably de minimis on the complaint alone. The court could not conclude that fifteen minutes of unpaid time approximately once each week was legally insignificant or impracticable to record.

The court assumed, without deciding, that the NYLL and FLSA time-shaving claims rose and fell together because both parties presented the appeal that way.

4. Legal Framework and Reasoning

A. The Portal-to-Portal Act limits compensable time without defining every pre-shift activity as unpaid

The FLSA requires minimum wages and overtime compensation for covered work, but it does not itself define “work” or “workweek.” Early Supreme Court decisions interpreted those concepts broadly. Congress responded in 1947 with the Portal-to-Portal Act.

As relevant here, 29 U.S.C. § 254(a) generally excludes compensation for travel to and from the place where principal activities occur and for activities that are preliminary or postliminary to those principal activities. The Act does not, however, exclude otherwise compensable time occurring within the workday after the first principal activity and before the last.

The central question was therefore not simply whether Santos waited before 5:00 a.m. It was whether, despite that listed start time, her required presence and readiness at 4:45 a.m. constituted compensable work.

B. The regulations distinguish voluntary early arrival from required availability

Department of Labor regulations recognize that the same activity may be preliminary under one set of circumstances and part of an employee’s principal activities under another. Section 790.7(g), for example, generally treats checking in and waiting to check in as preliminary activities under normal conditions. Section 790.7(h), however, identifies a different situation:

When an employee must report at a particular hour, is present and ready to work, but cannot begin for reasons beyond the employee’s control, “waiting for work would be an integral part of the employee’s principal activities.”

The regulation describes the distinction as being engaged to wait rather than waiting to be engaged. Section 785.14 similarly makes compensability depend on the particular circumstances, including the parties’ agreements and conduct, the nature of the work, and its relationship to the waiting.

The majority treated Santos’s allegations as falling within the former category. She did not allegedly arrive early for her own convenience. Lidl required her to be there, and the absence of a manager prevented her from beginning work.

C. Required readiness differs from a required ancillary procedure

Lidl argued that the Supreme Court’s security-screening decision foreclosed reliance on an employer-imposed reporting requirement. The majority accepted the underlying principle that an employer cannot transform every required preliminary activity into compensable work merely by making it mandatory. It rejected, however, Lidl’s broader conclusion.

The distinction concerns what the employee is required to provide. An employee required to undergo an ancillary screening performs an activity separate from the productive work for which the employee was hired. An employee required to report ready to begin work may instead be providing present availability for that work. As the majority emphasized, readiness itself can be hired.

This reasoning does not create a general exception for every mandatory workplace activity. It preserves a specific principle: an employer may engage employees to be available for work even when no productive task can immediately be performed.

D. The complaint controlled at the dismissal stage

The court reviewed the dismissal without deference, accepting factual allegations as true and drawing reasonable inferences in Santos’s favor. Her complaint alleged both elements central to the majority’s analysis:

• Lidl required her to report fifteen minutes early, ready to work; and
• She could not begin work because the manager had not unlocked the store.

The majority also inferred that, because the delays occurred approximately once a week, Santos ordinarily clocked in and began her duties at the required earlier reporting time on other days. That inference undermined the characterization of the entire fifteen-minute period as a routine preliminary interval.

Lidl’s suggestions that Santos could read the news, pay bills online, or leave the parking lot did not establish that the complaint failed as a matter of law. The holding rests on the alleged requirement to be present and ready for work, not on a categorical finding about every possible personal activity during the wait.

5. Precedents Cited and Their Influence

A. Historical foundations of compensable work and waiting

Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944)

The Supreme Court held that underground travel from mine portals to work areas was compensable because it was controlled or required by the employer and undertaken primarily for the employer’s benefit. The majority cited this decision to explain the expansive early interpretation of the FLSA that preceded the Portal-to-Portal Act. It did not adopt employer control or benefit as a sufficient modern test for all preliminary activities.

Armour & Co. v. Wantock, 323 U.S. 126 (1944)

This decision supplied the majority’s central conceptual foundation. In addressing firefighters’ on-call time, the Supreme Court recognized that an employer may hire someone “to do nothing but wait for something to happen” and that readiness to serve can be hired just as actual service can.

The majority understood that principle to extend beyond traditional emergency-response occupations. The dissent, by contrast, emphasized that readiness was a defining feature of the firefighters’ service and disputed whether Santos’s pre-shift presence had a comparable relationship to her work.

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)

The Supreme Court treated walking from a factory entrance time clock to workstations as part of the workweek and broadly described compensable time as including required presence at the employer’s premises or a prescribed workplace. The majority used the decision to explain the historical background of Congress’s subsequent statutory limitations, rather than as an unrestricted rule governing modern pre-shift claims.

B. The principal Supreme Court authorities governing the dispute

IBP, Inc. v. Alvarez, 546 U.S. 21 (2005)

This was the majority’s most directly relevant Supreme Court authority. The Court held that donning and doffing certain protective equipment constituted principal activities and that walking between changing and production areas within the resulting continuous workday was compensable.

Ordinary waiting to don protective equipment before the workday began was not compensable on the record presented. Crucially, however, the Court explained that the analysis would differ if employees were required to report at a specified time only to discover that protective equipment was unavailable. Section 790.7(h) would then apply.

The majority viewed Santos’s alleged lockout as analogous to that expressly identified situation: she reported when required but could not begin because the employer had not made work accessible. The dissent read the example more narrowly, as addressing an exceptional interruption of principal activities rather than routine pre-shift waiting.

Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014)

The Supreme Court held that warehouse employees’ post-shift security screenings, including associated waiting, were noncompensable. The screenings were neither the principal activities employees were hired to perform nor integral and indispensable to retrieving and packaging products. Their mandatory nature and benefit to the employer were insufficient.

The majority reconciled that holding with the engaged-to-wait regulation rather than treating the decision as displacing it. Waiting incident to a noncompensable screening differs from required availability to perform the job itself. The dissent considered this distinction unpersuasive and would have applied the integral-and-indispensable test to reject Santos’s claim.

C. Second Circuit authority on preliminary activities and insignificant time

Gorman v. Consolidated Edison Corp., 488 F.3d 586 (2d Cir. 2007)

The court previously held that required security measures at a nuclear power station were noncompensable because they were not integral to employees’ principal work. That holding reinforced the limitation that mandatory conduct is not necessarily compensable.

The decision also supplied the three-factor de minimis framework: administrative difficulty in recording time, aggregate claim size, and regularity of the activity. The dissent cited the same decision under the abbreviated title Gorman v. Consol. Edison Corp. to emphasize the demanding nature of the integral-and-indispensable standard.

Reich v. New York City Transit Authority, 45 F.3d 646 (2d Cir. 1995)

In that case, time spent actively caring for police dogs during commuting was compensable in principle but de minimis on the developed trial record. The aggregate time was not substantial or frequently recurring, and recording it presented significant practical difficulties.

The contrast mattered: Santos’s case involved only a complaint, not a factual record establishing comparable administrative burdens or insignificance.

Addison v. Huron Stevedoring Corp., 204 F.2d 88 (2d Cir. 1953)

The court rejected a conclusion that unpaid compensation below one dollar per week was necessarily de minimis. The majority cited it against resolving Santos’s claim merely by labeling its weekly amount small. The decision supported further factual inquiry, not an automatic rule that every short period must be compensated.

D. Procedural precedents

Salazar v. National Basketball Association, 118 F.4th 533 (2d Cir. 2024)

This decision supported accepting the complaint’s factual allegations and drawing favorable inferences at the dismissal stage. That approach was decisive because the majority accepted that 4:45 a.m. attendance and readiness were required.

Moreira v. Société Générale, S.A., 125 F.4th 371 (2d Cir. 2025)

This authority supplied the standard for reviewing a Rule 12(b)(6) dismissal: review without deference, liberal construction of the complaint, and favorable treatment of reasonable factual inferences.

Lotes Co., Ltd. v. Hon Hai Precision Industry Co., 753 F.3d 395 (2d Cir. 2014)

The court cited this case for its authority to affirm on any ground supported by the appellate record. Consequently, it considered Lidl’s alternative de minimis argument without deciding whether Lidl had forfeited it by first raising it in a district-court reply brief.

E. Additional authorities discussed in the dissent

Mitchell v. King Packing Co., 350 U.S. 260 (1956)

The dissent used compensable knife-sharpening by butchers to illustrate an activity inherently connected to productive work: sharp knives affected production, meat appearance, and waste. Judge Sullivan contrasted that connection with waiting outside a grocery store, which he considered unrelated to stocking or customer service.

Skidmore v. Swift & Co., 323 U.S. 134 (1944)

The dissent cited this firefighter case in discussing traditional on-call employment. Its role in the opinion was illustrative; the court did not undertake a separate analysis of the administrative-deference doctrine associated with the case.

Missouri, K. & T.R. Co. v. United States, 231 U.S. 112 (1913)

Appearing through the dissent’s discussion of Armour & Co. v. Wantock, this authority supported the proposition that employees may remain on duty when they can be called upon at any moment. The dissent used that feature to distinguish genuinely on-call service from Santos’s alleged waiting.

Donovan v. 75 Truck Stop, Inc., No. 80-9-CIV-OC, 1981 WL 2333 (M.D. Fla. July 20, 1981)

Santos invoked truck-washers standing by for customers as an analogy. The dissent rejected the comparison because availability was part of those workers’ service, whereas it regarded Santos’s clerking service as beginning only after the wait.

Moon v. Kwon, 248 F. Supp. 2d 201 (S.D.N.Y. 2002)

Santos likewise compared her circumstances to repair personnel whose on-demand availability formed part of their service. The dissent again found the analogy unpersuasive. Neither this decision nor Donovan v. 75 Truck Stop, Inc. supplied the majority’s governing rule, which rested on the regulations and Supreme Court authority.

6. The De Minimis Defense

The majority separately rejected dismissal on the theory that the alleged waiting was too insignificant to support recovery. Under 29 C.F.R. § 785.47, employers may disregard certain insubstantial, uncertain periods that cannot practically be recorded. The regulation does not permit arbitrary exclusion of fixed or regular working time or practically ascertainable assigned duties.

The relevant factors require attention to:

• The practical difficulty of recording the time;
• The claim’s aggregate size; and
• How regularly the activity occurs.

Santos alleged a recurring fifteen-minute interval approximately once a week. Nothing in the complaint established that recording it would be excessively difficult. The majority therefore could not deem the claim de minimis as a matter of law.

This was not a categorical holding that fifteen minutes can never be de minimis. It was a conclusion that Lidl had not established the defense on the existing record.

7. Understanding the Dissent

Judge Sullivan would have affirmed. His disagreement involved both legal characterization and the reading of the complaint.

Legally, he considered the integral-and-indispensable test controlling. Waiting outside the store neither constituted grocery-store work nor enabled stocking and customer-service duties in an intrinsic way. Because the waiting could be eliminated without impairing those duties, he regarded it as noncompensable preliminary time.

Factually, the dissent treated 5:00 a.m. as the point when Santos was expected to begin her principal duties. The majority instead accepted that Lidl required her to be ready to work at 4:45 a.m. and inferred that she ordinarily began then when managers arrived on time.

This difference is consequential. If 4:45 a.m. marks required working availability, the locked door delays work already demanded. If the period is merely routine preparation for duties beginning at 5:00 a.m., the Portal-to-Portal exclusion appears stronger. The majority resolved that dispute in Santos’s favor because her allegations and reasonable inferences controlled at the pleading stage.

8. Practical Impact and Limits

A. Reporting instructions matter more than schedule labels alone

Employers cannot necessarily designate a later official shift time while requiring employees to be available for work earlier without compensation. Future disputes will likely examine the actual reporting instructions, expectations of readiness, and reasons employees could not begin.

B. Access and timekeeping arrangements warrant scrutiny

A time clock records attendance; it does not conclusively establish when compensable work begins. Where employees must report before they can access a clock, the inability to clock in may create a gap between recorded time and compensable availability.

C. The rule extends beyond traditional on-call occupations

The majority rejected an occupational limitation confining engaged-to-wait principles to firefighters, drivers, or similar workers. The focus is the actual arrangement, not the employee’s job title.

D. Ordinary preliminary activities remain distinguishable

The decision does not make voluntary early arrival, ordinary commuting, or every mandatory screening compensable. Its reasoning depends on required presence and readiness to work, followed by an inability to begin for reasons beyond the employee’s control.

E. Important questions remain open

On remand, the parties may contest the alleged reporting requirement, actual waiting periods, practical timekeeping issues, and any remaining defenses. Santos must establish the applicable statutory requirements and any recoverable wages. Treating time as compensable does not itself establish every element of an FLSA minimum-wage or overtime claim.

The opinion also does not independently resolve NYLL doctrine, determine collective or class certification, or revisit the separate NYLL § 191 claim.

9. Complex Concepts Simplified

Principal activity

The work an employee is hired to perform. Certain closely connected activities may also legally count as principal activities.

Integral and indispensable

An activity that is intrinsically connected to the employee’s principal work and cannot be omitted if that work is to be performed. Employer insistence alone is insufficient.

Preliminary or postliminary activity

An activity occurring before or after principal work that the Portal-to-Portal Act generally excludes from compensation, subject to the activity’s actual character and circumstances.

Engaged to wait

The employer requires the employee’s present readiness for work, even though no task can immediately be performed.

Waiting to be engaged

The employee is not yet providing required working availability—for example, by voluntarily arriving before the required reporting time.

Continuous workday

The period between the first and last principal activities, during which otherwise compensable intervening time is generally outside the Portal-to-Portal Act’s exclusions.

De minimis

Too insignificant to require compensation under a limited doctrine considering practical recordkeeping difficulty, aggregate size, and regularity—not merely whether a period sounds short.

Vacate and remand

Set aside the dismissal and return the case to the district court for further proceedings, without finally deciding liability.

10. Conclusion

Santos v. Lidl establishes that required readiness to work can be compensable even before a listed shift begins and before employees can reach a time clock. When employees report as directed but employer-controlled circumstances prevent them from starting, the Portal-to-Portal Act does not automatically defeat their claims.

The decision’s broader significance lies in preserving a practical distinction: unpaid early arrival is not the same as employer-required availability. Whether the facts ultimately establish that availability, and what compensation follows, remains for further proceedings.