On June 13, 2022, the Ninth Circuit Court of Appeals held in Johnson v. WinCo Foods Holdings, Inc, et al. that class members who were not yet employed by WinCo were not entitled to compensation for the time required to take a pre-employment drug test, nor was WinCo required to cover the travel expenses associated with undergoing the test.
Plaintiff Alfred Johnson represented a class of successful applicants who received offers of employment from WinCo. As part of the post-offer process, applicants were notified that they had to take a mandatory drug test. If the applicant agreed to the drug test, WinCo instructed applicants to report to a testing location. WinCo paid the drug testing fee, but did not compensate for the travel expenses and time required to undergo the testing.
Johnson argued that Plaintiffs should have been compensated for the time and expenses of taking a drug test as successful applicants. Plaintiffs contended because the tests were administered under the control of WinCo, Plaintiffs must be categorized as employees (pursuant to California's "control test," which determines whether an employment relationship exists). This test examines the way an individual exercises control over a specific task and whether it indicates an employment relationship.
Plaintiffs also argued, in the alternative, that the class members were employees under a contract theory. Specifically, they contended that passing a drug test was a "condition subsequent" to...
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