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Volume XII, Number 180

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Pre-Employment Drug Testing Not Compensable Under California Law Holds Ninth Circuit

In a recent decision by the Ninth Circuit, the Court of Appeals upheld the district court ruling in favor of grocery chain WinCo Holdings, Inc., holding that plaintiffs who were not yet employees when they took drug tests were not entitled to compensation for the time spent being tested.

In Johnson v. WinCo Foods Holdings, Inc, et al. (WinCo), a class of applicants who successfully received job offers and subsequently were hired as employees of WinCo brought claims alleging, they should have received compensation as an employee for the time and expense of taking a pre-employment drug test. Under WinCo’s procedures at the time, a hiring manager would call successful applicants to extend a job offer contingent on the completion of a background check and drug test. WinCo paid for the testing fee but did not compensate for travel expenses or the time required to undergo the testing.

The district court ruled that class members were not employees of WinCo when they underwent drug testing and therefore were not entitled to compensation. The Ninth Circuit upheld the lower court decision, noting the absence of any California state court case on this issue. The Ninth Circuit considered the “control test” standard under California law for the determination of whether an individual is an employee. While WinCo prescribed the time and date of the tests and where the test was performed, the drug test was part of the application process, and the test result did not control any aspect of job performance.

The Ninth Circuit also determined that the job offer was contingent on the drug test being completed (and a background check) and therefore there was no contract of employment to support the plaintiffs’ claim they were contracted to be employees at the time they were drug tested. The Ninth Circuit highlighted that WinCo went to great lengths when the verbal offer was made to expressly communicate that its job offer was conditional on passing the drug test.

Although the Ninth Circuit commonly asks the California Supreme Court to decide on new issues of California law, the Ninth Circuit stated that, in this case, “[t]he law is clear. There is no need to delay resolution of this case and others that may be pending in the federal district courts by certifying any questions to the California Supreme Court.”

As a note of caution, this case only addresses pre-employment drug testing and does not discuss drug testing for current employees.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 168
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About this Author

Lisa Barnett Sween, Labor, Litigation, harassment, discrimination, Jackson Lewis Law Firm
Principal and Office Litigation Manager San Francisco

Lisa Barnett Sween is a Principal and Litigation Manager of the San Francisco, California, office of Jackson Lewis P.C. She represents employers in all aspects of employment law and litigation, including state and federal employment harassment and discrimination litigation, wrongful discharge litigation, FMLA, CFRA, ADA, and wage and hour litigation.

In addition to her litigation expertise, Ms. Sween regularly counsels employers on preventative employment policies and practices involving all areas of federal, state and local employment law, including recruiting...

415-796-5405
Of Counsel

Sayaka Karitani is of counsel in the Los Angeles, California, office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

213-689-0404
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