Pre-employment drug tests: hours worked?
Employer control over pre-employment drug tests does not convert “applicants” into “employees.” In Johnson v. WinCo Foods, LLC (9th Cir. 2022) 34 F. 4th 604, a class action, plaintiffs contended that WinCo Foods was required to pay them for the time they spent on drug tests and to reimburse them for the costs of the drug tests, on the theory that WinCo’s control over the manner of testing converted the applicants into employees.
As the WinCo court discussed, California law uses the “control” test as the primary test to determine if an employment relationship exists. Generally, under the wage orders, an employer is defined as one who “exercises control over wages, hours, or working conditions.” The California Supreme Court has stated that the principal test to determine if an employment relationship exists is whether the hiring entity controls the manner and means of accomplishing a desired service.
There was no dispute that WinCo prescribed the time and date of the tests, the facility where the tests took place, and the scope of the tests. However, the WinCo court held that plaintiff Johnson and the class of applicants were not doing WinCo’s work when they took the drug test. Additionally, the court found that the drug tests were activities to secure the position, not requirements for those already employed. Since WinCo’s control was not over conditions of work, the plaintiff was not an employee when he took the drug test.
The plaintiff’s argument that the drug test requirement was not a condition precedent of employment, but was, in fact, a condition subsequent to the formation of the employment agreement also failed. Looking at WinCo’s job offers, the Court found that the language was clear that WinCo’s offer was contingent on passing the drug test and that the applicant was not hired until after he passed the drug test. As such, no employment relationship was formed prior to the drug test.
A takeaway for employers who require pre-employment drug testing – review the language of your offers to be sure that the offer is contingent upon passing a drug test.
Related practice team: Labor and Employment