How a 15-Minute Wait Can Add Up to FLSA Back Pay

Payroll usually pays the hours recorded on time clocks – but requiring employees to arrive early can create a pay obligation before they even punch in.

That’s the issue in a recent wage dispute, alleging violations of the Fair Labor Standards Act (FLSA) and New York law. The Second Circuit just remanded the case for further proceedings.

Required to Report, Unable to Clock In

In 2021, Sandra Santos worked opening shifts at Lidl in New York. Her shift started at 5 a.m., but she alleged Lidl required opening crews to be there by 4:45.

About one morning a week, she claimed, the opening manager was late, arriving at 5 a.m. or later. She said she and co-workers had to wait outside. They couldn’t clock in, so that time went unpaid. In five of those weeks, she alleged, her unpaid time would’ve been paid at an overtime rate. She sued under the FLSA and state law.

A district court dismissed her case, treating the wait as unpaid pre-shift time. Santos appealed to the Second Circuit.

When Waiting Counts as Work Under the FLSA

Under federal wage rules, early arrival time falls into two groups. Employees who choose to come in early have “waited to be engaged,” and that time is generally unpaid. Employees required to report at a set time who then can’t start for reasons outside their control are “engaged to wait,” and that time may be compensable.

Santos’s allegations, if proven, fit the second category, the Second Circuit said. The court said it wasn’t willing to write off 15 minutes a week as too small to matter, at least at this early stage. So the case continues.

Payroll Action Steps

To reduce unpaid wage risks under the FLSA and state law:

1. Compare required report times with first punches. If employees must report early but can’t clock in for reasons beyond their control, their wait may be paid time.
2. Give employees a way to record time when the building is locked, such as a mobile clock-in, a call-in line or a manager-approved time edit. Then make sure payroll has a documented process to review, approve and pay those exceptions.
3. Calculate the potential exposure. Fifteen minutes a week looks small for one employee. Multiply it across every opening crew and add overtime premiums where they apply. The FLSA generally allows two years of back pay, or three years for willful violations. New York wage claims can reach back six years.

More info: Santos v. Lidl US, LLC, No. 25-2357 (2d Cir. 10/13/26).