{"id":3345,"date":"2026-10-19T16:40:22","date_gmt":"2026-10-19T20:40:22","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=3345"},"modified":"2026-10-19T16:40:23","modified_gmt":"2026-10-19T20:40:23","slug":"second-circuit-revives-shelved-grocery-workers-waiting-time-suit","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2026\/10\/19\/second-circuit-revives-shelved-grocery-workers-waiting-time-suit\/","title":{"rendered":"Second Circuit Revives Shelved Grocery Workers\u2019 Waiting Time Suit"},"content":{"rendered":"
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By Gerald L. Maatman, Jr., Jennifer A. Riley, and Olga A. Romadin<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways<\/u>: 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\u2019s dismissal of a grocery worker\u2019s time-shaving claims under the Fair Labor Standards Act (\u201cFLSA\u201d) and the New York Labor Law (\u201cNYLL\u201d). The Second Circuit held <\/a>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\u2019s 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\u2019 lawyers a new basis for bringing collective actions in the Second Circuit.<\/em><\/p>\n\n\n\n

Background<\/strong><\/p>\n\n\n\n

On January 26, 2024, Plaintiff Sandra Santos brought a class and collective action alleging that her employer, Lidl US, LLC (\u201cLidl\u201d), had engaged in the unlawful practice known as \u201ctime-shaving\u201d in violation of the FLSA and NYLL. Plaintiff, a store clerk and stocker at the grocer\u2019s 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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

The Appeals Court\u2019s Decision<\/strong><\/p>\n\n\n\n

Writing for the majority, Judge Beth Robinson cited to U.S. Department of Labor regulation 29 C.F.R. \u00a7 790.7(h) interpreting the Portal-to-Portal Act, writing that the regulation distinguished between when an employee voluntarily arrives early and conducts a \u201cpreliminary\u201d 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 \u201cintegral\u201d to their principal activities. Id.<\/em> at 1.  Under the \u00a7 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<\/em>, 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 \u201cintegral\u201d to the job they were hired to perform. Id.<\/em> at 12.<\/p>\n\n\n\n

In its defense, Lidl argued that Alvarez<\/em> and \u00a7 790.7(h) were abrogated by the U.S. Supreme Court\u2019s decision in Integrity Staffing Solutions, Inc. v. Busk<\/em>, 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 \u201cprincipal\u201d activity for which the workers were employed. Id.<\/em> at 14. The Second Circuit declined to read the decision so broadly, writing that Busk<\/em> did not \u201caddress the distinct scenario of a worker engaged to wait.\u201d Id.<\/em> at 15. Citing to Armour & Co. v. Wantock<\/em>, 323 U.S. 126 (1944), Judge Robison wrote that an employee may be hired specifically to wait, and Busk<\/em> did not upend the principle that \u201c[r]eadiness to serve may be hired, quite as much as service itself.\u201d Id.<\/em> at 16.<\/p>\n\n\n\n

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 \u201cno such limit in the text of \u00a7 790.7(h).\u201d Id.<\/em><\/p>\n\n\n\n

Finally, the Second Circuit rejected Lidl\u2019s alternative argument that the time workers spent waiting was de minimis<\/em>, writing that it could not \u201cconclude from our precedents that fifteen minutes of uncompensated work time a week is de minimis<\/em>.\u201d Id.<\/em> at 17.<\/p>\n\n\n\n

Judge Richard J. Sullivan\u2019s Dissent<\/strong><\/p>\n\n\n\n

In his dissent, Judge Sullivan wrote that the majority\u2019s holding was in conflict with the Portal-to-Portal Act and with the U.S. Supreme Court\u2019s precedent, concluding that the wait time at issue was neither \u201cintegral\u201d nor \u201cindispensable\u201d to plaintiff\u2019s work as a grocery store clerk because Lidl could have eliminated it without affecting the principal activities of stocking or customer service. Id.<\/em> at 23.  Judge Sullivan further wrote that \u00a7 790.7(h) applies only when waiting is an unusual break from routine, not a routine part of preliminary activities. Id.<\/em> at 26.<\/p>\n\n\n\n

Takeaways for Employers<\/strong><\/p>\n\n\n\n

The Second Circuit\u2019s holding shows the enduring reluctance of the Second Circuit to broaden its reading of the U.S. Supreme Court Busk<\/em> 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 \u201cengaged to wait,\u201d and should tread cautiously in relying on the Portal-to-Portal Act to preclude litigation or utilizing a de minimis<\/em> defense argument to limit damages.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Olga A. Romadin 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\u2019s dismissal of a grocery worker\u2019s time-shaving claims under the Fair Labor Standards Act (\u201cFLSA\u201d) and the … <\/p>\n

Continue reading “Second Circuit Revives Shelved Grocery Workers\u2019 Waiting Time Suit”<\/span><\/a><\/p>\n","protected":false},"author":575,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[42],"tags":[],"ppma_author":[7,9,156],"class_list":["post-3345","post","type-post","status-publish","format-standard","hentry","category-wage-hour-litigation"],"authors":[{"term_id":7,"user_id":575,"is_guest":0,"slug":"gmaatman","display_name":"Gerald L. Maatman, Jr.","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2022\/09\/maatmangerald-100x100.jpg","author_category":"","last_name":"Maatman Jr.","first_name":"Gerald L.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/geraldmaatman.html","description":"Read Gerald's bio.<\/a>"},{"term_id":9,"user_id":576,"is_guest":0,"slug":"jariley","display_name":"Jennifer A. Riley","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2023\/08\/rileyjennifer-100x100.jpg","author_category":"","last_name":"Riley","first_name":"Jennifer A.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/jenniferriley.html","description":"Read Jennifer's bio.<\/a>"},{"term_id":156,"user_id":756,"is_guest":0,"slug":"oromadin","display_name":"Olga Romadin","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2026\/02\/romadinolga-100x100.jpg","author_category":"","last_name":"Romadin","first_name":"Olga","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/olgaromadin.html","description":"Read Olga's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/3345","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/575"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=3345"}],"version-history":[{"count":1,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/3345\/revisions"}],"predecessor-version":[{"id":3348,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/3345\/revisions\/3348"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=3345"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=3345"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=3345"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=3345"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}