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December 13, 2022

9th Circuit Rejects Novel Argument for Compensation of Pre-employment Drug Testing

A 9th Circuit Court of Appeals panel has upheld a lower court ruling in favor of employer WinCo Foods, LLC. A class action litigation brought by employee Alfred Johnson on behalf of himself and other WinCo employees (plaintiffs) in California, alleged WinCo failed to compensate successful applicants for employment, as employees, for the time and expense of taking pre-employment drug tests (Johnson v. WinCo Foods (June 2022)). 

The Court’s holding in favor of WinCo supports the lower court’s finding that under California law, plaintiffs were not yet employees of WinCo when they took the drug test and were therefore not entitled to compensation under California wage and hour laws.   

Plaintiffs argued that because the drug tests were administered under the control of the employer – and because California law applies a control test to determine whether an employment relationship exists – plaintiffs must be regarded as employees. This argument was rejected as the Court reasoned that control over a drug test as part of the job application process is not control over the performance of the job. Specifically, the Court noted that the plaintiffs were not performing work for an “employer” when they took the pre-employment drug test; they were instead applying for a job, and as such they were not yet employees.  Alternate theories of contract law were also presented to the Court and summarily rejected.

While the same issues have been alleged in similar cases with identical outcomes, most have been removed to federal court. This decision marks the first time a state court decision has been upheld affirming that applicants sent for pre-employment drug testing are not yet employees when they took the drug test and as such are not entitled to compensation for associated time and travel expenses.

Employers should keep in mind that this decision does not change an employer’s obligation to pay drug testing facility fees when it requires applicants to undergo preemployment drug testing.