Claims
2nd Circuit revives Lidl wage case over unpaid pre-shift wait time
By Insurance Wire Staff, . Insurance Wire.
The Second U.S. Circuit Court of Appeals has revived wage claims against Lidl, the supermarket chain, after a lower court had thrown them out. The plaintiff, Sandra Santos, worked as a clerk and stocker at two Lidl locations in West Babylon, New York, and alleged she was required to show up at 4:45 a.m. for shifts that started at 5 a.m. Roughly once a week, managers did not arrive until the scheduled start time, leaving her locked out and unable to reach the time clocks, according to Business Insurance's account of the ruling in Sandra Santos v. Lidl.
Santos brought her claims under the Fair Labor Standards Act and New York Labor Law, seeking back wages, overtime where it applied, and class-like treatment for similarly situated workers.
The district court had sided with Lidl, finding the waiting period was a preliminary activity not subject to pay under the Portal-to-Portal Act, the federal statute that generally keeps ordinary pre- and post-shift activities off the compensable clock. The appeals court majority disagreed. It found Santos had plausibly alleged that the time was compensable because she was directed to report ready to work but was prevented from starting through no fault of her own. The majority also declined to dismiss the claim on the ground that roughly 15 minutes of unpaid time per week was too trivial to matter. One judge dissented, concluding the wait was a non-compensable preliminary activity not integral to her core duties.
Lidl's defense rested on two arguments: that employees could use the waiting period for personal purposes, and that the intervals were too short and too infrequent to require payment. The majority rejected both at the pleading stage, leaving those questions for further proceedings.
For employment practices liability underwriters, the ruling is a reminder that wage-and-hour exposure does not require elaborate off-the-clock schemes. A routine operational gap, managers arriving at shift start rather than before it, can generate a class-capable claim if workers are required to be on-site earlier. The Portal-to-Portal Act defense that has historically been a reliable early exit is not guaranteed to hold when the employee had no choice about when to arrive and no ability to begin work once there.
The harder question the ruling leaves open is how courts will treat the frequency and duration arguments at trial or summary judgment. The majority explicitly declined to resolve whether 15 minutes a week is legally de minimis, meaning that issue is still live. Employers and their insurers cannot yet read this decision as settling the threshold at which brief, irregular waiting periods become compensable.
Brokers serving retail, grocery and any sector with early-morning opening crews should expect renewed interest from clients in auditing pre-shift reporting requirements. Whether a worker is directed to arrive before a manager can let them in is now a fact pattern with appellate traction in the Second Circuit, which covers New York, Connecticut and Vermont.
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