Santos v. Lidl

majority opinion

25-2357

Santos v. Lidl

In the

United States Court of Appeals

For the Second Circuit

August Term, 2025

(Argued: April 20, 2026 Decided: October 13, 2026)

Docket No. 25-2357

SANDRA SANTOS, on behalf of herself, FLSA Collective Plaintiffs, and Class

Members,

Plaintiff-Appellant,

–v.–

LIDL US, LLC, DBA LIDL,

Defendant-Appellee.

Before: SULLIVAN, ROBINSON, Circuit Judges, RAKOFF, District Judge. *

Plaintiff-Appellant Sandra Santos appeals from a judgment of the

United States District Court for the Eastern District of New York (Azrack, J.)

dismissing her claims against Defendant-Appellee Lidl US, LLC (“Lidl”) for

*Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.

violations of the Fair Labor Standards Act (“FLSA”) and the New York

Labor Law (“NYLL”).

Santos alleges that Lidl required her and similarly situated employees

to report to work fifteen minutes before the listed start time of their storeopening shifts, and that opening managers regularly didn’t arrive until the listed start time. Because employees couldn’t clock in for work until they accessed the time clock machines located inside stores, on the days when managers were not there to let them in, the employees didn’t get paid for time spent waiting for managers to grant them entry. As relevant here,

Santos seeks compensation for that unpaid waiting time.

The district court dismissed Santos’s time-shaving claims as barred

by the Portal-to-Portal Act, 29 U.S.C. § 254, which generally shields

employers from FLSA liability for time workers spend on activities

“preliminary” or “postliminary” to the principal activities they are

employed to perform. On appeal, Santos argues that the district court

overlooked that waiting time can be compensable when an employer

engages an employee to wait for work.

We agree. Waiting time is compensable under the FLSA when an

employer requires an employee to report to the worksite at a certain time to be ready to work and, for reasons beyond the employee’s control, there is no work to be done. 29 C.F.R. § 790.7(h).

We thus VACATE the dismissal of Santos’s FLSA and NYLL

time-shaving claims and REMAND to the district court for further

proceedings consistent with this opinion. Judge Sullivan dissents in a

separate opinion.

C.K. LEE, Lee Litigation Group, PLLC, New York,

NY, for Plaintiff-Appellant.

JASON D. BURNS, Nicholas A. Corsano, Greenberg

Traurig, LLP, New York, NY, for DefendantAppellee.

ROBINSON, Circuit Judge:

This case requires us to consider whether the Portal-to-Portal Act bars an

employee’s claim for compensation under the Fair Labor Standards Act (“FLSA”)

for time spent waiting for work to begin when an employer requires the employee

to report for work at a specific time but the employee is prevented from clocking

in and beginning to work for reasons attributable to the employer.

Plaintiff-Appellant Sandra Santos appeals from a September 10, 2025,

judgment of the United States District Court for the Eastern District of New York

(Azrack, J.) dismissing her claims against Defendant-Appellee Lidl US, LLC

(“Lidl”) for time-shaving violations under the FLSA and the New York Labor Law

(“NYLL”).

Santos alleges that Lidl required her and similarly situated employees to

report to work fifteen minutes before the listed start time of their store-opening

shifts in the morning, and that opening managers regularly didn’t arrive until the

listed start time. Because employees couldn’t clock in for work until they accessed

the time clock machines located inside stores, on the days when managers were

not there to let them in, the employees didn’t get paid for time spent waiting for

managers to grant them entry. As relevant here, Santos seeks compensation for

that unpaid waiting time, including, as appropriate, overtime wages.

The district court dismissed Santos’s time-shaving claims as barred by the

Portal-to-Portal Act, 29 U.S.C. § 254, which generally shields employers from

FLSA liability for time workers spend on activities “preliminary” or

“postliminary” to the principal activities they are employed to perform. On

appeal, Santos argues that the district court overlooked that waiting time can be

compensable when an employer engages an employee to wait for work.

We agree. Waiting time is compensable under the FLSA when an employer

requires an employee to report to the worksite at a certain time to be ready to work

and, for reasons beyond the employee’s control, there is no work to be done. 29

C.F.R. § 790.7(h). The district court thus erred in concluding as a matter of law

that Santos’s waiting time was not compensable.

We thus VACATE the dismissal of Santos’s FLSA and NYLL time-shaving

claims and REMAND to the district court for further proceedings consistent with

this opinion.

BACKGROUND

As relevant here, Plaintiff-Appellant Sandra Santos alleges the following. 1

Santos worked as a store clerk and stocker at Lidl grocery stores from about July

2021 to November 2021. For the first six weeks, she received training at the Lidl

store on Sunrise Highway in West Babylon, New York. Santos worked for the

remaining three-and-a-half months of her tenure at Lidl’s other West Babylon

store on Montauk Highway. Throughout her employment with Lidl, Santos was

scheduled to work a ten-hour opening shift from 5:00 a.m. to 3:00 p.m., four days

a week, for a total of forty hours a week. Her hourly wage was $16.50.

Though Santos’s listed shift began at 5:00 a.m., before Lidl’s stores were

open for business, Lidl required her to report to work fifteen minutes before that

time. Similarly situated opening shift employees were likewise required to report

to work fifteen minutes before the listed start time of their opening shifts.

Crediting Santos’s allegations, which we must, Santos did not have the option, as

suggested by the dissent, of “arriving precisely at the beginning of her [listed]

shift.” Dissent at 3. When Santos and similarly situated employees arrived at

1Because the district court granted defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), we draw our account of the facts from the complaint, treating all factual allegations in the complaint as true and drawing all inferences in Santos’s favor. Salazar v. National Basketball Association, 118 F.4th 533, 544 (2d Cir. 2024).

work fifteen minutes before the listed start time of their opening shifts, as directed

by Lidl, sometimes the stores were still locked. She and other employees thus had

to wait for the opening managers to arrive, unlock the stores, and let them in.

Opening managers regularly didn’t arrive until 5:00 a.m. (or the listed start time

of the opening shift for their stores) or later. Because Santos and other employees

couldn’t clock in for work until they accessed the time clock machines located

inside stores, on the occasions when opening managers did not arrive fifteen

minutes before the listed start time of the opening shift, Santos and other

employees didn’t get paid for time spent waiting for managers to grant them entry,

even though they were required to show up for work fifteen minutes earlier than

the listed start time of their shift.

Santos’s opening managers were late to unlock stores about once per week,

resulting in fifteen minutes of unpaid wages each week of her employment. For

five of those weeks, the unpaid wages were payable as overtime.

Santos sued Lidl in the Eastern District of New York for unlawful “timeshaving” in violation of the FLSA and the NYLL. She seeks to bring her FLSA

time-shaving claim as a collective action under 29 U.S.C. § 216(b) “on behalf of all

current and former non-exempt employees . . . who [Lidl] scheduled to work

opening shifts which began before their stores opened for business, employed by

[Lidl] on or after the date that is three (3) years before the filing of the [c]omplaint.”

App’x 6–7. And she brought her NYLL time-shaving claim as a putative class

action claim. Santos sought, among other things, declaratory and injunctive relief

and unpaid wages, including overtime as appropriate.

As relevant here, Lidl moved to dismiss the time-shaving claims pursuant

to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that

the fifteen-minute wait time was non-compensable under the Portal-to-Portal Act,

which generally shields employers from FLSA claims regarding time spent on

activities “preliminary” or “postliminary” to the principal activities a worker is

employed to perform. 29 U.S.C. § 254(a)(2).

The district court agreed that the Portal-to-Portal Act barred Santos’s FLSA

claim. After concluding that the NYLL time-shaving claim was coextensive with

the failed FLSA claim, the court dismissed the federal and state time-shaving

claims with prejudice. 2

2 Having dismissed Santos’s only federal claim, the district court declined to exercise supplemental jurisdiction over Santos’s claim that Lidl failed to timely pay wages in violation of NYLL § 191. On appeal, Santos does not challenge the district court’s dismissal of her NYLL § 191 claim. We accordingly do not address that ruling.

DISCUSSION

On appeal, Santos principally argues that because she arrived at her

workplace at a time prescribed by Lidl but was prevented from working because a

manager wasn’t there to let her into the store, Lidl had engaged her to wait such

that her waiting time was compensable under FLSA regulations and Supreme

Court caselaw, as well as under the NYLL. 3

Lidl counters that Santos’s waiting time was non-compensable because

nothing prevented Santos from using that waiting time for her benefit—for

example, to read the news or pay bills online—or from leaving the parking lot.

Lidl argues in the alternative that the alleged brief and infrequent waiting periods

were de minimis and thus non-compensable—an issue not addressed by the district

court.

We review a district court’s dismissal of a complaint pursuant to Rule

12(b)(6) without deference, “construing the complaint liberally, accepting all

factual allegations in the complaint as true, and drawing all reasonable inferences

in the plaintiff’s favor.” Moreira v. Société Générale, S.A., 125 F.4th 371, 387 (2d Cir.

3In their briefing, without citation or support, both parties treat the NYLL as coextensive with the FLSA with respect to the time-shaving claims. We accordingly assume without deciding that the NYLL and FLSA time-shaving claims rise and fall together.

2025). 4 Applying these standards, we consider in turn the Portal-to-Portal Act and

applicable caselaw governing de minimis FLSA claims.

I. Santos’s alleged waiting time is compensable under the FLSA.

Considering the Portal-to-Portal Act, Department of Labor regulations, and

Supreme Court precedents, we conclude that the district court erred in dismissing

Santos’s FLSA time-shaving claim. Because waiting time is compensable if an

employee is engaged to wait, and Santos alleges that Lidl required her to arrive at

4:45 a.m. to be ready to work whenever the opening manager arrived, Santos’s

alleged waiting time, if proven, was compensable.

A. Under the Portal-to-Portal Act and related regulations, waiting time is

compensable where an employee is “engaged to wait.”

The Fair Labor Standards Act, originally enacted in 1938, requires

employers to pay a minimum wage and provide overtime compensation for work

over forty hours a week. 29 U.S.C. § 201 et seq. The statute itself doesn’t define

“work” or “workweek.” IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005).

In the first decade after the FLSA’s enactment, the Supreme Court defined

those terms broadly. Id. First, the Court held that workers’ travel time from mine

portals to underground work areas was compensable because it was “controlled

4 In quotations from caselaw, this opinion omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.

or required by the employer and pursued necessarily and primarily for the

[employer’s] benefit.” Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123,

321 U.S. 590, 598 (1944). Next, the Court concluded that firefighters’ on-call hours

were compensable because an employer may hire workers “to do nothing but wait

for something to happen.” Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).

Finally, the Court held that time employees spent walking from a time clock near

the factory’s entrance to their workstations was part of the workweek, which the

Court defined to “include[] all time during which an employee is necessarily

required to be on the employer’s premises, on duty or at a prescribed workplace.”

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690–91 (1946).

Congress responded by passing the Portal-to-Portal Act in 1947 to amend

the FLSA. IBP, 546 U.S. at 26; see 29 U.S.C. § 251 et seq. As relevant here, that Act

provides that employers are not liable under the FLSA for failure to pay minimum

wage or overtime compensation for time spent performing the following activities:

(1) walking, riding, or traveling to and from the actual

place of performance of the principal activity or

activities which such employee is employed to

perform, and

(2) activities which are preliminary to or postliminary

to said principal activity or activities,

which occur either prior to the time on any particular

workday at which such employee commences, or

subsequent to the time on any particular workday at

which he ceases, such principal activity or activities.

29 U.S.C. § 254(a). The Act has no impact on computation of hours worked within

the workday—after the first principal activity and before the last principal activity.

IBP, 546 U.S. at 28 (citing 29 C.F.R. § 790.6(a)).

The Secretary of Labor promulgated regulations to implement the Portal-toPortal Act. Particularly instructive here is 29 C.F.R. § 790.7, which explains the

meaning of “preliminary” and “postliminary” activities. As defined in § 790.7(b),

a “preliminary activity” is an activity an employee performs before beginning the

“principal” activities the employee is engaged to perform; a “postliminary

activity” is something an employee does after completing principal activities for

the day. Section 790.7(g) explains that, under normal conditions, activities like

“checking in and out and waiting in line to do so, changing clothes, washing up or

showering, and waiting in line to receive pay checks” would be preliminary or

postliminary. But the regulation acknowledges that it’s impossible to create a

“categorical list” of activities addressed by the statute because activities that may

be preliminary or postliminary “under one set of circumstances” can “under other

conditions be ‘principal’ activities.” Id. at (b); see also id. at (h).

Notably, the regulation uses waiting time to illustrate that point:

Waiting before the time established for the

commencement of work would be regarded as a

preliminary activity when the employee voluntarily

arrives at his place of employment earlier than he is

either required or expected to arrive. Where, however,

an employee is required by his employer to report at a

particular hour at his workbench or other place where he

performs his principal activity, if the employee is there at

that hour ready and willing to work but for some reason

beyond his control there is no work for him to perform

until some time has elapsed, waiting for work would be

an integral part of the employee's principal activities.

The difference in the two situations is that in the second

the employee was engaged to wait while in the first the

employee waited to be engaged.

Id. at (h) (emphases added).

A separate provision in another regulation that specifically addresses

“waiting time” likewise explains that whether waiting time is compensable

“depends upon particular circumstances,” including agreements between the

parties, their conduct, the nature of the work performed, and the work’s

relationship to the waiting time. 29 C.F.R. § 785.14. In other words, “[f]acts may

show that the employee was engaged to wait” or that the employee “waited to be

engaged.” Id.

B. Supreme Court authority reinforces the conclusion that employees must be

compensated when they are “engaged to wait.”

The United States Supreme Court addressed the distinction set forth in

§ 790.7 and § 785.14 between being “engaged to wait” and “waiting to be engaged”

in IBP v. Alvarez, 546 U.S. at 21. There, employees at meat production facilities

who were required to put on protective clothing before starting their principal

work activities sought compensation for (1) time spent walking between the

changing area and production area and (2) time spent waiting to put on protective

gear. Id. at 24. Because the donning and doffing of unique protective wear were

themselves compensable principal activities that marked the beginning and end

of the workday, the Court determined that time spent walking between the

changing area and production area occurred within “a continuous workday”; that

time was thus “excluded from the scope of” the Portal-to-Portal Act and “covered

by the FLSA.” Id. at 37.

The Court concluded, however, that the time the workers spent waiting to

don protective gear at the beginning of a shift was not compensable because

waiting to don protective gear is not “integral and indispensable” to the job insofar

as the waiting “may or may not be necessary in particular situations or for every

employee.” Id. at 40. The Court made clear that its “analysis would be different”

if the employer “required its employees to arrive at a particular time in order to

begin waiting.” Id. at 40 n.8 (emphasis added); see also id. at 41 (explaining that the

employees would be engaged to wait if the employer “required its workers to

report to the changing area at a specific time only to find that no protective gear

was available until after some time had elapsed”). In that scenario, § 790.7(h)

would apply, and waiting time would be compensable because the employer

would have engaged the workers to wait. See id. at 41; 29 C.F.R. § 790.7(h). Because

there was “no such evidence in the record” before the Court, § 790.7(g)—the

provision that describes time spent waiting to check in or to get a paycheck as a

preliminary activity under normal conditions—was the “[m]ore pertinent”

provision in the regulation. IBP, 546 U.S. at 41.

Lidl suggests that a subsequent Supreme Court case, Integrity Staffing

Solutions, Inc. v. Busk, 574 U.S. 27 (2014), abrogates § 790.7(h). We decline to read

Busk so broadly. There, the Court held that time spent by warehouse workers

going through anti-theft screenings at the end of their shifts—and waiting in line

to do so—was a non-compensable postliminary activity. Id. at 29–30. The Court

concluded first that the security screenings were not “principal . . . activities which

the employee [wa]s employed to perform” because the employer didn’t “employ

its workers to undergo security screenings, but to retrieve products from

warehouse shelves and package those products for shipment.” Id. at 35. The Court

then considered whether the screenings were “integral and indispensable” to the

“principal activities” the workers were employed to perform such that they

themselves constituted principal activities. Id.; see also IBP, 546 U.S. at 37 (holding

that “any activity that is ‘integral and indispensable’ to a ‘principal activity’ is itself

a ‘principal activity’ under” the Portal-to-Portal Act). The anti-theft measures

were neither integral nor indispensable because the employer “could have

eliminated the screenings altogether without impairing the employees’ ability to

complete their work.” Busk, 574 U.S. at 35.

Ultimately, Busk clarified that the “integral and indispensable test is tied to

the productive work that the employee is employed to perform”; the Ninth Circuit

thus “erred by focusing on whether an employer required a particular activity.” Id.

at 36. The Court cautioned that “[a] test that turns on whether the activity is for

the benefit of the employer is similarly overbroad.” Id.; see also Gorman v.

Consolidated Edison Corp., 488 F.3d 586, 593 (2d Cir. 2007) (security measures at

entrance and exit to nuclear power station were non-compensable preliminary and

postliminary activities because, though required, they weren’t “integral to

principal work activities” of station workers).

Lidl suggests that § 790.7(h) doesn’t survive Busk to the extent the regulation

connects the compensability of waiting time to the employer’s requiring an

employee to arrive at a given time. We disagree.

True, § 790.7(h) refers to a worker being “required by [an] employer to report

at a particular hour.” 29 C.F.R. § 790.7(h) (emphasis added); see also IBP, 546 U.S.

at 41 (stating that the Court’s analysis would be different if the employer “required

its workers to report to the changing area at a specific time”). And Busk makes

clear that an otherwise non-compensable preliminary or postliminary activity

doesn’t become a compensable principal activity simply because an employer

requires it. 574 U.S. at 36.

But Busk doesn’t address the distinct scenario of a worker engaged to wait.

Time isn’t compensable under § 790.7(h) simply because the wait time is incidental

to a requirement imposed by an employer, such as a post-work security screening.

Rather, § 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. 29 C.F.R. § 790.7(h). See

Armour & Co., 323 U.S. at 133 (noting that an employer may choose to hire a worker

“to do nothing but wait for something to happen”). “Readiness to serve may be

hired, quite as much as service itself.” Id. Busk doesn’t upend that principle.

Lidl also suggests that the notion that time is compensable when an

individual is “engaged to wait” is limited to traditional on-call employees like

firefighters and limousine drivers and does not apply to grocery store workers like

Santos. But we see no such limit in the text of § 790.7(h). In fact, the regulation’s

description of what it means to be “engaged to wait” is broad: An employee who

is required to report at a particular time to a “workbench” or other place where

the employee’s “principal activity” is conducted, and who arrives at the

designated hour ready to work is “engaged to wait” if, for reasons beyond the

employee’s control, there is no work to do until some time has passed. 29 C.F.R.

§ 790.7(h). Reinforcing our view is the Supreme Court’s understanding that

§ 790.7(h) could apply to meat production employees—a far cry from traditional oncall employees. See IBP, 546 U.S. at 41. Accordingly, we do not read § 790.7(h) to

exclude workers like Santos.

C. Santos plausibly alleges a time-shaving claim.

Under the legal framework set forth in § 790.7(h) and adopted by the

Supreme Court in IBP, whether Santos was engaged to wait such that her wait time

was compensable under the FLSA depends on whether Lidl required her to report

to the store and be ready to work fifteen minutes before the listed start of her storeopening shift and whether, on the occasions for which she seeks compensation,

she was unable to work at that time for reasons beyond her control. She has

alleged both facts, and for purposes of assessing Lidl’s motion to dismiss, we

accept those allegations as true, indulging all inferences in her favor. See Salazar v.

National Basketball Association, 118 F.4th 533, 544 (2d Cir. 2024). The district court

thus erred in dismissing Santos’s FLSA and NYLL time-shaving claims for failure

to state a claim. 5

II. On this record, we cannot conclude as a matter of law that Santos’s

claim is de minimis.

We decline to affirm the dismissal of Santos’s complaint on the alternative

basis—not addressed by the district court—that Santos’s claim is not cognizable

under the FLSA because it is de minimis. 6 On the basis of Santos’s complaint alone,

we cannot conclude that the waiting time Santos alleges is de minimis as a matter

of law.

In interpreting the FLSA, courts have held that claims for de minimis

violations are not cognizable. See, e.g., Reich v. New York City Transit Authority, 45

F.3d 646 (2d Cir. 1995). In Reich, we concluded that when police officers in the

canine unit were required to commute with dogs, time they spent actively caring

5The dissent tries to avoid this conclusion by suggesting that Santos seeks compensation for waiting time that occurs as a “routine part of [her] preliminary activities” rather than as “an aberration from those activities.” Dissent at 6. But Santos’s complaint alleges that she was forced to wait to begin working for reasons beyond her control only “approximately once per week.” App’x 14. The inference is that the other days she clocked in and began performing her regular duties at the time she was required to arrive—fifteen minutes before the listed opening shift time. The days when she was forced to wait to begin performing her regular duties were an aberration.

6Santos suggests that Lidl forfeited this argument before the district court because Lidl raised the argument for the first time in its reply memorandum to the district court. See Appellant’s Br. 6 n.2. Even if Lidl did forfeit the argument before the district court, we may affirm the district court’s dismissal on any basis supported by the record on appeal. See, Lotes Co., Ltd. v. Hon Hai Precision Industry Co., 753 F.3d 395, 413 (2d Cir. 2014).

for dogs was compensable under the FLSA but need not be compensated because it

was de minimis. Id. at 652. In that case, the trial record revealed that the time

officers spent caring for the dogs was in the aggregate neither substantial nor

frequently recurring and, importantly, it would be administratively difficult to

monitor and record time spent in dog-care duties. Id. We concluded from our

review of the record that “[t]he task of recording the time . . . might well exceed

the time expended in performance of [dog-care] duties.” Id. at 653.

Department of Labor regulations have codified this principle, providing

that “insubstantial or insignificant periods of time beyond the scheduled working

hours, which cannot as a practical administrative matter be precisely recorded for

payroll purposes, may be disregarded.” 29 C.F.R. § 785.47. The regulations

describe the limits of this principle:

This rule applies only where there are uncertain and

indefinite periods of time involved of a few seconds or

minutes duration, and where the failure to count such

time is due to considerations justified by industrial

realities. An employer may not arbitrarily fail to count

as hours worked any part, however small, of the

employee’s fixed or regular working time or practically

ascertainable period of time he is regularly required to

spend on duties assigned to him.

Id.

Our Circuit considers three factors in determining if “time spent in a

particular activity is de minimis: (1) the administrative difficulty of recording the

time; (2) the size of the claim in the aggregate; and (3) whether the tasks occur

regularly.” Gorman, 488 F.3d at 594 n.7. Because the principle that claims for de

minimis violations are not cognizable is an exception to Congress’s direction that

employees be paid a minimum wage for their work, and overtime pay under

certain circumstances, see 29 U.S.C. §§ 206, 207, we remain attentive to the limits of

this judicial doctrine, see 29 C.F.R. § 785.47.

Here, Santos alleges that Lidl required her and similarly situated employees

to arrive at their workplace ready to work at 4:45 a.m. (or fifteen minutes before

the listed start times of their respective opening shifts) and that, about once a week,

opening managers didn’t arrive until 5:00 a.m. (or the listed start times of their

opening shifts). We cannot conclude from our precedents that fifteen minutes of

uncompensated work time a week is de minimis. Cf. Addison v. Huron Stevedoring

Corp., 204 F.2d 88, 95 (2d Cir. 1953) (rejecting the district court’s conclusion that

unpaid compensation amounting to less than $1.00 per week was de minimis). Nor

can we conclude based on Santos’s complaint that the administrative difficulties

of recording the waiting time would be too great.

CONCLUSION

Because Santos plausibly alleges that she was engaged to wait for work, and

such waiting time is compensable, we VACATE the district court’s dismissal of

Santos’s time-shaving claims under the FLSA and NYLL and REMAND to the

district court for proceedings consistent with this opinion.

25-2357

Santos v. Lidl

RICHARD J. SULLIVAN, Circuit Judge, dissenting:

When Congress enacted the Portal-to-Portal Act, 29 U.S.C. § 254(a), it

determined that time spent on “activities which are preliminary or postliminary”

to one’s employment would not be compensable under the Fair Labor Standards

Act (“FLSA”), 29 U.S.C. §§ 201, et seq. (emphasis added). Yet today, the majority

holds that a grocery-store employee, Sandra Santos, must be compensated for the

approximately ﬁfteen minutes per week that she spends waiting in her car before

the start of her shift. Because that outcome contravenes the text of the Portal-toPortal Act and binding Supreme Court precedent, I respectfully dissent.

I. Santos’s Waiting Time Was Not “Integral and Indispensable” to Her

Grocery-Store Activities.

Under the Fair Labor Standards Act, “not all work-related activities

constitute ‘work or employment’ that must be compensated.” Gorman v. Consol.

Edison Corp., 488 F.3d 586, 589 (2d Cir. 2007). Rather, an employee must be

compensated in only two circumstances: ﬁrst, for the performance of activities that

constitute the “principal” work for which he was hired; and second, for activities

that are “integral and indispensable” to that principal work. Integrity Staﬃng Sols.,

Inc. v. Busk, 574 U.S. 27, 33 (2014) (quoting 29 U.S.C. § 254(a)). An “activity is . . .

integral and indispensable” only if it is “an intrinsic element” of an employee’s principal activities “and one with which the employee cannot dispense if he is to

perform his principal activities.” Id.

As the Supreme Court has clariﬁed time and again, the “integral and

indispensable” test creates a high bar for compensable work. Id.; IBP, Inc. v.

Alvarez, 546 U.S. 21, 40–42 (2005). Indeed, to demonstrate that an activity is

integral and indispensable, an employee must do more than show that (i) the time

spent performing the activity is “required” by the employer, Busk, 574 U.S. at 36;

(ii) it is either integral or indispensable to principal activities but not both, Gorman,

488 F.3d at 592; or (iii) it “serve[s]” some purpose for the employer, id. at 593.

Instead, an employee must demonstrate that the activity is so “intrinsic” to her

job’s functions that she could not perform the job if she dispensed with it. Busk,

574 U.S. at 34. And while the majority attempts to cabin the integral-andindispensable test to certain circumscribed employment scenarios, see Maj. Op. at

16, the Supreme Court has squarely rejected that approach, clarifying that the test

should control courts’ analyses of all issues arising under the Portal-to-Portal Act,

see, e.g., Alvarez, 546 U.S. at 40–42 (applying the test alongside “engaged to wait”

regulation, 29 C.F.R. § 790.7(h)).

Considered in that light, Santos’s pre-shift wait satisﬁes neither the

indispensable nor integral prong of the test. For starters, the time she spent

waiting in the parking lot was not indispensable, since Lidl could have cut it

altogether without sacriﬁcing the principal functions of its grocery business. In

fact, Santos’s wait bears a striking resemblance to the time warehouse employees

in Busk spent waiting to undergo post-work security screenings, which the

Supreme Court held was not “an intrinsic element of” their work because their

ability to “retriev[e] products from warehouse shelves” did not depend on the

screenings. 574 U.S. at 35.

Santos, too, could have foregone the wait – arriving precisely at the

beginning of her shift – without “impairing” her core tasks of stocking shelves and

helping customers. See id. Santos’s own complaint made clear that her shift did

not oﬃcially start until 5:00 a.m., and only then was she expected to begin her

principal duties, regardless of whether she arrived ﬁve, ten, or ﬁfteen minutes

earlier. See App’x at 13. And while Santos stresses that her waiting time should

be considered indispensable because it was “required” by Lidl, Santos Br. at 20, it

is well-settled that the mandatory nature of a task is not enough for it to become

indispensable. See Busk, 574 U.S. at 36 (emphasizing that the relevant question

under the Portal-to-Portal Act is not whether an “employer required a particular

activity”).

Nor was Santos’s waiting time “integral” to her functions as a grocery-store

clerk. To be integral, an activity must be a “constituent” or “component” part of

the principal work for which the employee was hired to perform. Id. at 33. For

example, the time butchers spend sharpening their knives is compensable because

the use of insuﬃciently sharp knives aﬀects the speed of “production,” the

“appearance of the meat,” and the degree of “waste,” as well as because knives are

inherently “connected with” butchering. Mitchell v. King Packing Co., 350 U.S. 260,

263 (1956). Here, Santos’s wait did not aﬀect her ability to stock shelves or check

out customers, and her waiting in a car was not at all “connected with” working

in a grocery store. Id. It was therefore no more “intrinsic” to her principal job

functions than the time that a poultry-plant employee spends “waiting to don

protective gear” or that a warehouse employee spends waiting for a security

screen, both of which the Supreme Court has rejected as not integral to an

employee’s principal activities. See Alvarez, 546 at 40–42; Busk, 574 U.S. at 35.

II. Santos Was Not “Engaged to Wait.”

Perhaps recognizing that Santos cannot satisfy the integral-andindispensable test, the majority instead seizes on language in a Department of

Labor regulation, 29 C.F.R. § 790.7(h), which states that an employee can

nonetheless be compensated if he is (i) “required by his employer to report at a

particular hour at his workbench or other place where he performs his principal

activity,” (ii) “is there at that hour ready and willing to work,” but (iii) “for some

reason beyond his control there is no work for him to perform until some time has

elapsed.” To the majority, this regulation precisely captures Santos’s situation. See

Maj. Op. at 11–12. As support, the majority cites the Supreme Court’s discussion

of the same regulation in Alvarez, where it noted that the “regulation would be

applicable” to the poultry-plant workers in question “if [the meat-packing plant]

required its workers to report to the changing area at a speciﬁc time only to ﬁnd

that no protective gear was available.” 546 U.S. at 41.

But the Supreme Court’s gloss on that regulation only shows its

inapplicability to Santos’s case. Recall that in Alvarez, the Court held that the time

poultry-plant employees spent donning and doﬃng protective gear constituted

one of their principal activities, but the time they spent “waiting to don protective

gear” did not. Id. at 40–42. The Supreme Court thus reserved the regulation’s

applicability for a third, hypothetical scenario: one in which the poultry-plant

employees were waiting for protective gear not as a matter of routine but because

that gear was unavailable – so they could not commence their principal activities

no matter what they did. See id. at 41 (noting that “[m]ore pertinent” to the

poultry-plant employees’ case was “the portion of § 790.7 that characterizes the

time employees must spend waiting to check in . . . as generally a ‘preliminary’

activity” not compensable under the FLSA). Accordingly, their waiting

represented the time they were aﬃrmatively barred from doing the work they

were hired to perform. It follows that for employees like those in Alvarez, the

applicability of 29 C.F.R. § 790.7(h) turns on whether their waiting time occurs as

a routine part of their preliminary activities or represents an aberration from those

activities. Only the latter – which involves an interval in which the employees’

work is indeﬁnitely held in abeyance through no action of their own – is

compensable. See id.

Framed this way, Santos’s pre-shift time is not only an example of the

routine, preliminary waiting that falls outside of the scope of the regulation; it also

serves to illustrate why such time should not be compensable. Most critically,

Santos does not once allege that the time she spent waiting in her car prevented

her from performing the principal activities for which she was hired – stocking

shelves and helping customers – or even that it interfered with those activities. See

App’x at 13 (describing the waiting time as being “15 minutes before [her]

scheduled start time”). Rather, her complaint clariﬁed that the ﬁfteen-minute wait

occurred before her shift began, and thus before she ever began her principal

activities. See id. Unlike the example in Alvarez, then, Santos’s waiting time neither

competed with her principal activities nor prevented her from doing them; it

simply preceded them. Once the ﬁfteen minutes were up, Santos’s proverbial

“protective gear” was always there to be donned. Alvarez, 546 U.S. at 41. The facts

of her case therefore bear little resemblance to the hypothetical scenario in Alvarez

or to the language in the regulation.

This should come as no surprise: notwithstanding the Supreme Court’s

hypothetical application of the regulation to poultry-plant workers, the regulation

most plausibly applies to a category of “on-call” employees – like ﬁreﬁghters and

security personnel – with jobs vastly diﬀerent from grocery-store employees. See,

e.g., Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944) (ﬁreﬁghters and security

oﬃcers); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (ﬁreﬁghters). Indeed, on7

call ﬁreﬁghters and security oﬃcers are properly “engaged to wait” because their

job is to be at the ready to respond to emergencies, ensuring the “safe[ty]” and

“habitab[ility]” of the spaces they protect. Wantock, 323 U.S. at 132–33. Santos’s

brief, pre-shift wait, by contrast, in no way resembled being on call. While in her

car, she was not “[l]ying in wait for threats,” id. at 132; she was not expected to

respond to any issues that could arise during that time; and she did nothing that

furthered the operations of – much less, that was necessary for the safety or

security of – the grocery store. See id. at 133 (describing employees as being on

duty for the duration of their sixteen-hour shifts because they could be “called

upon at any moment” (citing Missouri, K. & T.R. Co. v. United States, 231 U.S. 112,

119 (1913))).

While the majority counters that the text of the regulation does not “limit”

employees who are “engaged to wait” to ﬁreﬁghters or other on-call workers, Maj.

Op. at 16, this response misses the mark. The critical determinant of whether an

employee is engaged to wait is not the title of the work she performs; rather, it is

whether “[r]eadiness to serve” is a feature of her work. Wantock, 323 U.S. at 133.

While Santos attempted to compare her pre-shift wait to that of truck-washers on

standby for potential drivers, see Donovan v. 75 Truck Stop, Inc., No. 80-9-CIV-OC,

1981 WL 2333, at *12 (M.D. Fla. July 20, 1981), or to repairmen performing a key

element of their service by being available on demand, see Moon v. Kwon, 248 F.

Supp. 2d 201, 229 (S.D.N.Y. 2002), the reality is that her waiting was not a feature

or element of any “service” she provided. Rather, the performance of her only

service – grocery-store clerking – commenced after the wait time ended and she

clocked in. That was the activity she was hired to perform and for which she

should be compensated.

* * *

As the Supreme Court explained in Busk, Congress passed the Portal-toPortal Act to confront an “emergency” whereby employers faced “ﬁnancial ruin”

because they had little choice but to furnish employees with “windfall payments

. . . for activities” ancillary to their work. 574 U.S. at 32. When Congress “met this

emergency” with the Portal-to-Portal Act, it speciﬁcally excluded from

compensable work any activities that occur “prior to the time” a workday begins.

Id. (quoting 29 U.S.C. § 254(a)). Because that is precisely what Santos’s waiting

time is, and because the majority’s conclusion to the contrary disregards both

Congress’s commands and Supreme Court precedent, I respectfully dissent.

Santos v. Lidl

Authorities cited

Opinion · public domain