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...
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