Told to Arrive Early and Locked Out: Is the Wait Paid in New York?

Take a hypothetical. A stock clerk at a supermarket in Hicksville works the opening shift, which starts at 6:00 a.m. The store manager has told the opening crew to be at the door by 5:45. The time clock is inside. About once a week nobody with a key is there, and the crew stands in the parking lot until the manager pulls in at six. The pay stub starts at six every time.

On October 13, 2026, the Second Circuit, the federal appeals court that hears appeals from New York’s federal trial courts, decided a case with almost exactly those facts, from two supermarkets in West Babylon. For the wider set of New York pay rules, see our guide to New York wage and hour laws. This is general information, not advice about any one claim.

What the Second Circuit decided in Santos v. Lidl

Sandra Santos worked as a clerk and stocker at Lidl’s two West Babylon stores, on Sunrise Highway and Montauk Highway, from about July to November 2021, on a 5:00 a.m. to 3:00 p.m. opening shift four days a week. Her complaint alleges that Lidl required her, and other opening-shift employees, to report fifteen minutes before the listed start. On the days the opening manager did not arrive until 5:00 a.m. or later, she could not get to the time clock, which was inside the locked store. That happened about once a week.

The Eastern District of New York dismissed her federal and state “time-shaving” claims in a judgment entered September 10, 2025, reading the Portal-to-Portal Act, 29 U.S.C. § 254(a), which excuses employers from paying for activities “preliminary to or postliminary to” the principal work, as barring them.

The Second Circuit vacated that dismissal and sent the case back. Judge Robinson wrote for the majority; Judge Rakoff of the Southern District of New York sat on the panel by designation. The holding is one sentence: “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.” Consequently, a required report time and a locked door can turn a wait in the parking lot into time worked.

The card below sets out the decision for anyone who needs to cite it.

Engaged to wait, or waiting to be engaged

The Department of Labor’s Portal-to-Portal Act regulation, 29 C.F.R. § 790.7(h), sets two situations side by side. Waiting before the start 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.” But where “an employee is required by his employer to report at a particular hour” and “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,” the waiting “would be an integral part of the employee’s principal activities.” The regulation sums it up: “in the second the employee was engaged to wait while in the first the employee waited to be engaged.”

Jason Tenenbaum read the decision this way:

It came down to the fact that they required her to be there fifteen minutes early, and the time clock was inside a locked store. So if you were told to come at five o’clock all dressed up and ready to work, and you get there at 4:45 because you want to, and it takes you those fifteen minutes to get dressed up, those fifteen minutes would not be compensable. But here, they required her to show up at a certain time, and that’s where they got into trouble.

That example tracks the regulations. Section 790.7(g) lists “changing clothes” among the activities that, “when performed under the conditions normally present,” are preliminary. (Protective gear that is part of the job is a different question; the Supreme Court treated donning unique protective gear in a meat plant as a principal activity in IBP, Inc. v. Alvarez.) The first fact to pin down in any early-arrival claim, then, is whether the early time was required or chosen.

The compare cards below put the two sides of the regulation next to each other.

The Supreme Court cases behind the ruling

In IBP, Inc. v. Alvarez (2005), meat-plant workers lost their claim for time spent waiting to put on protective gear, but the Court wrote that “our analysis would be different if Barber required its employees to arrive at a particular time in order to begin waiting.” The Second Circuit treated Santos as that case.

Lidl argued that Integrity Staffing Solutions, Inc. v. Busk (2014), which held that end-of-shift security screenings were not compensable even though required, had displaced the regulation. The panel declined “to read Busk so broadly”; Busk does not address “the distinct scenario of a worker engaged to wait.” And it quoted Armour & Co. v. Wantock (1944), a case about firefighters on call: “Readiness to serve may be hired, quite as much as service itself.” Consequently, in this circuit an employer cannot rely on Busk alone to defeat a claim built on a required report time.

What the dissent said, and what is still open

Judge Sullivan dissented. In his view the wait was not “integral and indispensable” to stocking shelves, since Lidl “could have cut it altogether without sacrificing the principal functions of its grocery business,” and the regulation fits on-call workers such as firefighters. The majority answered that a wait about once a week was “an aberration,” not routine, and that it saw no on-call limit “in the text of § 790.7(h).”

Three things remain open. The opinion says the waiting time was compensable “if proven.” The de minimis defense was refused only “on the basis of Santos’s complaint alone.” And the New York claim was not separately analyzed. As the management-side wage and hour blog at Proskauer put it, Lidl “can still contest whether early arrival was actually required and press the de minimis defense on a full record.” Read Santos as a door opened, not a case won.

How New York’s wage rules read

New York’s minimum wage orders have their own text. The general order, 12 NYCRR Part 142, applies to all employees except those covered by another order (§ 142-1.1). Section 142-2.1(b) says: “The minimum wage shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer.”

Restaurants and hotels have their own order, Part 146, and its definition of working time is more specific: “time worked or time of permitted attendance, including waiting time, whether or not work duties are assigned, or time an employee is required to be available for work at a place or within a geographical area prescribed by the employer such that the employee is unable to use the time productively for his or her own purposes” (§ 146-3.6).

Call-in pay is a different rule. Section 142-2.3 says an employee who “by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less” (the restaurant version, § 146-1.5, uses three hours for one shift). That sets a floor on a day you report. A worker who waits fifteen minutes and then works a full shift has a question about the fifteen minutes, not about call-in pay. A New York claim should therefore rely on the state wage order text as well as the federal rule, since the Second Circuit did not decide the state question.

How long you have and what can be recovered

The chart below runs from the day the wages went unpaid.

The federal damages clause speaks of “unpaid minimum wages” and “unpaid overtime compensation.” Santos was scheduled for forty hours a week, so the opinion notes that in five of the weeks the unpaid minutes “were payable as overtime.” Consequently, a worker already scheduled at forty hours has the clearest federal claim, and the six-year state claim reaches further back.

How to document the wait

A fifteen-minute claim is won or lost on records. Employers must keep payroll records for six years showing “the number of hours worked daily and weekly” (12 NYCRR § 142-2.6). Those records show when the clock started, not when you reached the door.

You got to document better. Write down the time you got there, when the manager showed up, and when you clocked in, the day it happens. Save the schedule or the text message that told you to come early. Your pay stub shows what they paid you.

The most important paper is the instruction itself: a posted schedule that says “report 5:45,” a group text from the manager, or a handbook page. It is the difference between required and chosen.

If you complain and the employer retaliates

New York protects the complaint. Labor Law § 215 bars retaliation against an employee who complains about conduct the employee “reasonably and in good faith, believes violates any provision” of the Labor Law; a court may order reinstatement or front pay, lost compensation, fees, and liquidated damages of up to $20,000. It does not cover State or municipal employees. Labor Law § 740 covers an employee who discloses to a supervisor, or objects to, a practice the employee reasonably believes violates a “law, rule or regulation,” with lost wages, front pay, a civil penalty, punitive damages for a willful, malicious or wanton violation, and a jury trial.

An employer who is not happy with somebody who is exercising their rights can find themselves on the wrong end of a lawsuit for retaliation. That’s always the big play. There’s a retaliation hook. So if you make a good-faith complaint that you weren’t paid for the time that you waited, that complaint is protected under section 215 of the Labor Law. If you object to this practice because you believe it violates the law, look at section 740. You have two years to go to court.

Our post on requesting your personnel file explains how § 215 and § 740 work together. Put the complaint in writing and keep a copy outside work systems.

What employers and HR should check

Santos turns on facts an employer controls: the required report time, who has the key, and where the clock is. Proskauer’s blog, writing for employers, said it plainly: “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.” In practice, an employer that wants staff at the door at 5:45 should pay from 5:45 or stop requiring it.

Back to the stock clerk in Hicksville

The clerk was told to be at the door at 5:45, and on the days it stayed locked there was no work for a reason the clerk did not control. On the Second Circuit’s reading, that is time the employer engaged the clerk to wait. Keep the instruction, log each wait the day it happens, keep the pay stubs. If the clerk complains and the schedule suddenly shrinks, that is a separate claim with its own two-year clock. The Long Island wage and hour attorney page describes how the firm handles unpaid-time claims.

Sources

• Santos v. Lidl US, LLC, No. 25-2357 (2d Cir. Oct. 13, 2026), majority and dissent (CourtListener)
• 29 C.F.R. § 790.7, “Preliminary” and “postliminary” activities
• 29 U.S.C. § 254, Relief from liability and punishment (Portal-to-Portal Act)
• 29 U.S.C. § 255, Statute of limitations
• 29 U.S.C. § 216, Penalties
• IBP, Inc. v. Alvarez, 546 U.S. 21 (2005)
• Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014)
• Armour & Co. v. Wantock, 323 U.S. 126 (1944)
• 12 NYCRR § 142-1.1, Coverage of Part
• 12 NYCRR § 142-2.1, Basic minimum hourly wage rate and allowances
• 12 NYCRR § 142-2.3, Call-in pay
• 12 NYCRR § 142-2.6, Employer records
• 12 NYCRR § 146-1.5, Call-in pay (hospitality)
• 12 NYCRR § 146-3.6, Working time (hospitality)
• New York Labor Law § 663, Civil action
• New York Labor Law § 198, Costs, remedies
• New York Labor Law § 195, Notice and record-keeping requirements
• New York Labor Law § 215, Prohibited retaliation
• New York Labor Law § 740, Retaliatory action by employers
• Law and the Workplace (Proskauer), “Second Circuit: Employees Told to Show Up Early Are ‘Engaged to Wait’”

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Our employment law practice handles wage claims and retaliation claims against employers.

If you were told to arrive before your shift and were not paid for the wait, call (516) 750-0595 with the schedule or message that set your report time, or request a free case review.