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Time Spent Traveling To and Taking Pre-Employment Drug Test Is Not Compensable
Jun 17, 2022

Time Spent Traveling To and Taking Pre-Employment Drug Test Is Not Compensable

Topics: Court Decisions, Wage & Hour Issues

Earlier this week, the 9th Circuit Court of Appeal held in Johnson v. WinCo Foods LLC, that time spent traveling to and taking a pre-employment drug test is not compensable where the drug test was a pre-condition of employment and did not convert the job applicant to an employee at the time of the drug test.  The Court found that Johnson and the class members, in this case, were engaging in a process in order to secure employment, rather than engaging in a required duty of employment. 

Background 

Defendant WinCo Foods LLC, a supermarket chain with over 100 locations primarily in the western region of the U.S., requires potential employees to take a pre-employment drug test.  During the hiring process, a hiring manager calls the applicant to extend a verbal, contingent offer of employment.  This offer includes the job title, pay and location.  One condition of the offer is that the applicant must pass a mandatory drug test.  WinCo exercises control over the drug test by directing the applicant regarding when and where to take the test.  However, because the drug tests require consent and voluntary action by the applicant before officially beginning employment, WinCo does not compensate applicants with contingent offers for time spent taking the drug test or traveling to the drug test. 

On August 23, 2017, Plaintiff Alfred Johnson filed a putative class action in California state court, on behalf of other WinCo employees in California, seeking compensation for the time spent traveling to and taking the pre-employment drug test.  WinCo removed the case to federal court.  The trial court granted class certification and both parties filed motions for summary judgement.  The district court found that Johnson and the class members were not yet employees at the time they took the drug test and granted WinCo’s motion for summary judgement.  The Plaintiffs appealed. 

The Decision 

The Ninth Circuit panel affirmed the trial court’s summary judgment ruling, finding that Johnson and the class members were not employees at the time they took the drug test.  Thus, WinCo was not obligated to compensate Plaintiff and the class members for their time spent traveling to and taking the pre-employment drug test (although WinCo did pay for the cost of the drug test). 

Plaintiff asserted two arguments.  First, Plaintiff asserted that because WinCo exercised control over the drug test by directing applicants as to when and where to take the test, Plaintiff and the class members must be classified as employees and therefore compensated.  To interpret whether the relationship between the parties constitutes an employee-employer relationship, California law utilizes the “control test.”  This test analyzes the manner and means an individual is exercising control over a specific desired task and whether it signals an employment relationship.  In this case, the Court rejected the control test and concluded that it does not apply here, based primarily on the reasoning that this specific activity - drug testing - was a means to secure employment rather than a duty for those already employed.  The Court found that even though WinCo exercised control over the time and location of the drug test, the individuals at the time were applicants, not employees.  Thus, WinCo’s control over the activity is irrelevant in this case and WinCo’s directions did not automatically make the applicants employees. 

The second argument was that the drug test was a “condition subsequent” under California contract law, i.e., the employment contract was executed before the drug test, and WinCo could terminate the employment in the event of a failed test.  Therefore, Plaintiff and the class members should be classified as employees and entitled to compensation for the time to travel to and take the drug test.  In contrast, WinCo claimed that the drug test was a “condition precedent” to employment.  Under this analysis, if the applicant fails the drug test or does not take it, then the offer is not enforceable because the triggering event never occurred.  Here, there was no written contract, only a verbal contingent offer of employment.  The hiring manager told all applicants of this condition and that it was a requirement to obtain employment at WinCo. Additionally, an email was sent out to the applicants referring to the condition as a pre-employment drug test.  The Court found that it would be unreasonable for Plaintiff and the class members to interpret the condition as anything but a condition precedent to obtain employment, based on the uncontested facts. 

This decision reinforces the prior case law that California employers do not have to compensate applicants for pre-employment activities, such as interviews, drug tests, and physical examinations.

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Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. Mark has been practicing labor and employment law in California for thirty years. His practice has a special emphasis on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. He recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®.
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