Employees Not Entitled To Pre-Employment Drug Test Reimbursement - The National Law Review
California employers do not have to pay applicants for time or expenses related to taking a pre-employment drug test, when the employer made hiring contingent on passing the test, according to a recent decision. Under those facts, the US Ninth Circuit Court of Appeals held in Johnson v. WinCo Foods, LLC that the individuals were not yet employees, so their prospective employer thus did not owe them wages or expenses for taking the test.
Contingent Employment Offer
In Johnson, WinCo made a contingent offer of employment to successful applicants. It required a pre-employment drug test and background check. As the Ninth Circuit made clear, individuals must pass the test “before they can begin the duties of the job.” The company instructed applicants to report to a drug testing location. WinCo paid the costs of the drug test, but did not pay applicants for travel expenses or the time involved with taking the test.
The plaintiff filed a class action lawsuit for wages and expenses. After WinCo removed the case to federal court, that court granted class certification. Later, the federal district court granted WinCo summary judgment and dismissed the claims. It concluded that the class members were not employees when they underwent drug testing, so thus not owed wages or expenses.
Individuals Not Employees When Tested
On appeal, the Ninth Circuit affirmed. First, it rejected the argument that the individuals were employees when tested because WinCo allegedly “...
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