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Ninth Circuit:
Pay Not Owed for Taking Pre-Employment Drug Test
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals declared yesterday that under California law, a successful applicant for a job is not entitled to recompense from the employer for the time and travel expense in undergoing a drug test as a condition of employment.
Senior Circuit Judge Mary M. Schroeder authored the opinion. It affirms a summary judgment by District Court Judge David O. Carter of the Central District of California in favor of WinCo Foods in a class action against it brought by employee Alfred Johnson.
Schroeder wrote:
“Plaintiffs have two principal contentions. First they argue that because the tests were administered under the control of the employer, plaintiffs must be regarded as employees, as California law applies a control test to determine whether an employment relationship exists….Second, and alternatively, they contend that under California law the test should be regarded as a “condition subsequent” to their hiring as employees….
“Neither contention can succeed. The control test relates to control over the manner of performance of the work itself, not the manner of establishing qualifications to do the work. There was no condition subsequent because plaintiffs were not hired until they established they were qualified.”
Supermarket Chain
WinCo operates a chain of about 100 supermarkets in western states including California, with stores in Lakewood, Lancaster, and Pomona. When a job applicant is on the verge of being hired, the person is told:
“As part of your contingent job offer with WinCo Foods, we will be conducting a pre-employment background check and drug test on you.”
The company pays the testing fee but does not compensate the applicant for the cost of travel or for the person’s time.
There is no California case directly in point, Schroeder noted. However, she said, the California Supreme Court precedent establishes that the “principal test of an employment relationship” is whether the employer “controls the manner and means of accomplishing a desired service.”
The circuit judge reasoned:
“Drug testing, like an interview or pre-employment physical examination, is an activity to secure a position, not a requirement for those already employed.”
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Depicted is the WinCo store in Pomona. The Ninth U.S. Circuit Court of Appeals yesterday held, in a class action against WinCo, that an employer need not pay for the time and travel expense of an employee, prior to employment, in undergoing a required drug test.
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Carter’s View
She quoted Carter as saying:
“There are many ways in which employers exercise some degree of control over job applicants. They may require that applicants appear at a certain time and place for an interview; that they undergo a writing or skills test; that they interview in a certain fashion—-such as on a panel with other applicants; that they pass a background check; and so on. The fact that employers control the; manner’ in which these activities take place does not magically convert applicants into employees.”
Schroeder declared:
“The California 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.”
The case is Johnson v. WinCo Foods, LLC, 21-55501.
Copyright 2022, Metropolitan News Company