Second Circuit Revives Shelved Grocery Workers’ Waiting Time Suit

Duane Morris Takeaways: On October 13, 2026, in Santos v. Lidl US, LLC, No. 25-2357 (2d Cir. Oct. 13, 2026), the Second Circuit vacated a district court’s dismissal of a grocery worker’s time-shaving claims under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). The Second Circuit held that waiting time is compensable under the FLSA when an employer requires an employee to report to work at a specific time and be ready to work when there is no work to do for reasons beyond the employee’s control. It also declined to consider fifteen minutes of unpaid time a week as de minimis when argued at the pleading stage. For employers with shift workers, the ruling signals a narrowing of the Portal-to-Portal Act defense and gives plaintiffs’ lawyers a new basis for bringing collective actions in the Second Circuit.

Background

On January 26, 2024, Plaintiff Sandra Santos brought a class and collective action alleging that her employer, Lidl US, LLC (“Lidl”), had engaged in the unlawful practice known as “time-shaving” in violation of the FLSA and NYLL. Plaintiff, a store clerk and stocker at the grocer’s West Babylon, New York location, alleged that Lidl required her and other opening-shift employees to report to work fifteen minutes before the listed start time, though they were not always able to clock in until their shift start time or later, and that as a result they were not paid overtime. Plaintiff sought to represent a collective under the FLSA and a class under the NYLL.

On September 10, 2025, the U.S. District Court for the Eastern District of New York dismissed both claims with prejudice after holding that the Portal-to-Portal Act barred the FLSA claim and that because the NYLL claim was coextensive with it, it was barred, too. Plaintiff appealed, and the Second Circuit vacated and remanded to the District Court.

The Appeals Court’s Decision

Writing for the majority, Judge Beth Robinson cited to U.S. Department of Labor regulation 29 C.F.R. § 790.7(h) interpreting the Portal-to-Portal Act, writing that the regulation distinguished between when an employee voluntarily arrives early and conducts a “preliminary” activity, and when an employee is required to report at a set hour, is ready to work, and has no work to do for reasons beyond their control, where the employee is doing something “integral” to their principal activities. Id. at 1. Under the § 790.7(h), the former is not compensable, but the latter is. Judge Robinson then cited to the U.S. Supreme Court decision in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005), which determined courts were required to apply a separate analysis on compensable work time where workers had been required to report at a specific time to begin donning protective gear prior to starting their shift only to find that no protective gear was available, including evaluating whether the donning was “integral” to the job they were hired to perform. Id. at 12.

In its defense, Lidl argued that Alvarez and § 790.7(h) were abrogated by the U.S. Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014), which held that time spent waiting to go through a security line was a noncompensable postliminary activity because it was not a “principal” activity for which the workers were employed. Id. at 14. The Second Circuit declined to read the decision so broadly, writing that Busk did not “address the distinct scenario of a worker engaged to wait.” Id. at 15. Citing to Armour & Co. v. Wantock, 323 U.S. 126 (1944), Judge Robison wrote that an employee may be hired specifically to wait, and Busk did not upend the principle that “[r]eadiness to serve may be hired, quite as much as service itself.” Id. at 16.

Lidl responded that this is limited to workers such as firefighters and limousine drivers, but the Court of Appeals was unconvinced, writing that it found “no such limit in the text of § 790.7(h).” Id.

Finally, the Second Circuit rejected Lidl’s alternative argument that the time workers spent waiting was de minimis, writing that it could not “conclude from our precedents that fifteen minutes of uncompensated work time a week is de minimis.” Id. at 17.

Judge Richard J. Sullivan’s Dissent

In his dissent, Judge Sullivan wrote that the majority’s holding was in conflict with the Portal-to-Portal Act and with the U.S. Supreme Court’s precedent, concluding that the wait time at issue was neither “integral” nor “indispensable” to plaintiff’s work as a grocery store clerk because Lidl could have eliminated it without affecting the principal activities of stocking or customer service. Id. at 23. Judge Sullivan further wrote that § 790.7(h) applies only when waiting is an unusual break from routine, not a routine part of preliminary activities. Id. at 26.

Takeaways for Employers

The Second Circuit’s holding shows the enduring reluctance of the Second Circuit to broaden its reading of the U.S. Supreme Court Busk ruling on non-compensable waiting time, even when it sets new limits the Portal to Portal Act in determining compensable and non-compensable waiting time. Employers scheduling workers to arrive prior to shift start are cautioned that this may trigger a finding that such workers are “engaged to wait,” and should tread cautiously in relying on the Portal-to-Portal Act to preclude litigation or utilizing a de minimis defense argument to limit damages.