Ninth Circuit Finds Employer Not Required to Pay Workers for Time Spent Going to Obtain a Work-Related Drug Test 

Recently, the Ninth Circuit Court of Appeals upheld a judgment in favor of WinCo Foods in a class action where workers alleged that WinCo should have reimbursed successful job applicants for the time and travel expenses they incurred while obtaining a drug test as a pre-condition of employment. The Ninth Circuit ruled in Johnson v. WinCo Foods, LLC ruled that WinCo was not obligated to reimburse the costs because the plaintiffs were not employees at the time that they took the drug tests.

The plaintiffs’ primary argument centered on the idea that since WinCo controlled where, when, and how the new hires were tested for drugs as a condition for employment, they acted as an employer, exercising power over an employee.

In rejecting this argument, and others, the Ninth Circuit reasoned that the drug test was part of the job application process instead of performance of the job. Although an employment contract with WinCo had been formed prior to the drug test, the Court found that a successful drug test was a condition “precedent” to an employment contract with WinCo and, thus, the workers did not yet become employees of WinCo at the time they took the drug test. The contract stated clearly that the plaintiffs would not be hired until after a successful drug test.

The Ninth Circuit’s decision is not binding on the Second Circuit, which controls the wage and hour laws and precedent for New York employers. However, the decision is instructive in how employers should structure their compensation policies and hiring policies to bolster their case and defense should a class of employees claim that they should have been paid for the time spent taking a pre-employment drug test.

If you have any questions about this decision or your company’s wage and hour practices, please reach out to us.