Waiting to clock in: when that time should be paid

A federal appeals court has revived a claim by Lidl employees who say they had to show up for shifts but could not clock in until a manager opened the store, HR Dive reported. The case is a good moment to look at a quiet way hours can slip off a paycheck. This article explains the rule the court leaned on, and how to tell whether your own waiting time should count.

What the court decided

The case is known as Santos. It centers on a time-shaving allegation, meaning a claim that paid hours were trimmed below the hours actually worked. Here, the disputed time was the wait before a manager opened the store and clock-in began.

A lower court first threw the claim out. It called the waiting a preliminary activity, a term from the Portal-to-Portal Act, which changed the Fair Labor Standards Act. Preliminary activities are things before the real work starts that employers generally do not have to pay for.

The worker took the case to the 2nd U.S. Circuit appeals court. She argued the time counted because Lidl set the hour she had to arrive. Lidl argued no pay was due, because she was free to read or even leave the parking lot while she waited. Lidl did not reply to HR Dive's request for further comment before publication.

The appeals court vacated the dismissal and sent the case back to the lower court. That does not decide who wins. It means the employees can keep pursuing the claim.

Engaged to wait vs. waiting to be engaged

The court pointed to a Portal-to-Portal regulation that draws a simple line. If you choose to arrive early, before you are required or expected, the wait is a preliminary activity and generally unpaid. If your employer tells you to report at a set hour, you are there and ready, and there is no work for reasons outside your control, the wait is part of the job.

The regulation sums it up this way: "in the second the employee was engaged to wait while in the first the employee waited to be engaged."

The Labor Department uses everyday examples. A messenger doing a crossword between assignments, or a factory worker chatting while machinery is fixed, is likely engaged to wait. Compare a truck driver who leaves Washington, D.C. at 6:00 a.m., arrives in New York at 12:00 noon, and is fully relieved of duty until 6:00 p.m. That gap is not working time.

What it means for your pay

For hourly workers, every unpaid stretch lowers your true hourly wage. You give the time either way. The question is whether it shows up on your pay stub.

Waiting time can also matter for overtime. If required waits are left off, your recorded hours may look lower than the hours you actually gave, and that can affect whether you cross into time-and-a-half territory.

HR Dive noted that these disputes are heavily litigated and often turn on the specific facts. Two jobs with similar-looking waits can land on different sides of the line. That is why your own records matter more than any general rule.

Questions to ask about your own paycheck

You do not need to be a lawyer to spot a pattern. Start with a few plain questions about your own routine.

• Does my employer set a time I must be on site, and is that the same time I am allowed to clock in?
• When I wait before a shift, am I free to leave, or do I have to stay ready in a set spot?
• Do my own notes of arrival and clock-in times match the hours on my pay stub?
• If my shift starts late for reasons I cannot control, is that time recorded?

A simple habit helps: jot down when you arrive, when you clock in and when you leave, and compare it with each pay stub. If the gaps are regular, raise them with payroll or HR first, in writing if you can.

What to watch next

The Santos case now goes back to the lower court, which will look at the facts under the rule the appeals court described. Watch for how it treats a wait that lasts until a manager opens the store. The engaged-to-wait idea is a general rule, so it is worth knowing whatever your job is.

Written with AI assistance from the reports listed under Sources. Figures, quotes and sources are checked automatically before publishing.

This article is general education, not personal financial advice. Figures in worked examples are calculated from the assumptions stated with them and are not forecasts.