Dive Brief:
- Employees must be paid for time spent waiting if they are required to report to work and there is no work to be done, a divided appeals court held Tuesday, reviving a wage and hour lawsuit filed by a Lidl employee.
- The collective action alleged the grocery workers were required to arrive 15 minutes before the morning shift started. Managers regularly did not arrive at that time to unlock the doors, however, so the workers couldn’t clock in and be paid, according to court documents in Santos v. Lidl.
- The ruling represents the latest update in an enduring, fact-specific wage and hour compliance issue for employers.
Dive Insight:
Questions about whether employees must be paid for waiting time have been extensively litigated — and those lawsuits are often highly fact-specific.
A lower court initially dismissed the time-shaving allegation in Santos, finding Lidl employees’ waiting time was a noncompensable “preliminary activity,” as defined by the Portal-to-Portal Act’s amendments to the Fair Labor Standards Act.
The employee appealed to the 2nd U.S. Circuit Court of Appeals, arguing that because she arrived at her workplace at a time prescribed by Lidl, that time was compensable. Lidl, however, argued that the time need not be paid because nothing prevented her from using that time to read, for example, or from leaving the parking lot. The company did not respond to an HR Dive request for additional comment by press time.
The appeals court vacated the lower court’s ruling and remanded the case, pointing to an example in a Portal-to-Portal Act regulation. “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,” according to the rule.
“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,” it continues. “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.”
The U.S. Department of Labor relies heavily on examples to help employers answer waiting-time questions. DOL explains in a guide that a messenger who works on a crossword puzzle while awaiting assignments is likely “engaged to wait,” as is a factory employee who talks to co-workers while waiting for machinery to be repaired.
On the other hand, DOL offered the example of a truck driver sent from Washington, D.C., to New York City, leaving at 6:00 a.m. and arriving at 12:00 noon: “If the driver is completely and specifically relieved from all duty until 6:00 p.m. when he or she again goes on duty for the return trip,” the agency wrote, “he or she is waiting to be engaged and the time is not hours worked.”