Second Circuit: Employees Told To Show Up Early Are “Engaged To Wait”

On October 13, 2026, a divided panel of the U.S. Court of Appeals for the Second Circuit revived a putative collective and class action alleging that discount supermarket chain Lidl failed to pay grocery workers for time spent waiting outside locked stores for a manager to let them in.  The decision in Santos v. Lidl US, LLC, No. 25-2357 (2d Cir. Oct. 13, 2026), holds that when an employer requires employees to report at a set time, ready to work, and they can’t start for reasons beyond their control, the wait is compensable under the Fair Labor Standards Act (FLSA), the Portal-to-Portal Act (PPA) notwithstanding.  

How We Got Here

The plaintiff worked opening shifts at two Lidl stores on Long Island, scheduled from 5:00 a.m. to 3:00 p.m.  She alleged that Lidl required opening-shift employees to report fifteen minutes before the listed start time and that the time clocks were inside the store.  Approximately once a week, the opening manager didn’t arrive until 5:00 a.m. or later.  Employees stood outside, unable to clock in, and weren’t paid for the wait.

The Eastern District of New York dismissed the plaintiff’s FLSA and New York Labor Law (NYLL) time-shaving claims under the PPA, which excludes “preliminary” and “postliminary” activities from compensable time.  These are activities that occur before or after the employee’s principal activities (the work the employee is employed to perform) and that are not “integral and indispensable” to that work, such as walking from the building entrance to the time clock.  On appeal, Lidl argued that nothing stopped her from using the time for her own purposes, or even from leaving the parking lot.

The Decision

The majority started with the U.S. Department of Labor’s PPA interpretation at 29 C.F.R. § 790.7(h), which draws a line between being engaged to wait and waiting to be engaged.  An employee who voluntarily shows up early is waiting to be engaged, and that time is preliminary.  But an employee who is required to report at a particular hour, is there “ready and willing to work,” and has nothing to do “for some reason beyond his control” is engaged to wait, and the waiting is “an integral part of the employee’s principal activities.”

The Supreme Court has endorsed that distinction.  In IBP, Inc. v. Alvarez (2005), the Court held that time spent waiting to put on protective gear wasn’t compensable, but said its “analysis would be different” if the employer had “required its employees to arrive at a particular time in order to begin waiting.”  That, as alleged, is this case.

Lidl’s lead response was Integrity Staffing Solutions, Inc. v. Busk (2014), which held that an otherwise non-compensable activity (there, a post-shift security screening) doesn’t become compensable just because the employer requires it.  The panel didn’t read Busk that broadly.  Busk asked whether a required activity is “integral and indispensable” to the employee’s productive work.  Section 790.7(h) addresses something else: an employer’s choice to hire employees to be present and ready, whether or not there’s work for them yet.  Or, in the Supreme Court’s 1944 phrasing in Armour & Co. v. Wantock, “Readiness to serve may be hired, quite as much as service itself.”  

The panel also declined to affirm on Lidl’s alternative de minimis argument.  On the complaint alone, it couldn’t say that fifteen minutes a week is de minimis as a matter of law, or that the time would be too hard to record.  

Judge Sullivan dissented, viewing the wait (as the majority describes it) as a routine part of the plaintiff’s preliminary activities.  The majority’s answer:  on the facts alleged, the once-a-week waits were an aberration, not the routine.

Takeaways

Many will find it hard to argue with the court’s core logic here.  The employer set the reporting time, the employer controlled the door, and the employee did what she was told.  That’s the scenario § 790.7(h) has described for decades.  Keep in mind that this is a pleading-stage ruling: Lidl can still contest whether early arrival was actually required and press the de minimis defense on a full record.  For employers, the lesson is practical.  If you require employees to report to work at a certain time, assume the clock starts when they arrive and make sure someone with a key is there first so they can get to work.