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Time Is Not All the time Cash: Ninth Circuit Holds That Pre-Employment Drug Testing Is Not Compensable Underneath California Legislation


On June 13, 2022, the Ninth Circuit Court docket of Appeals held in Johnson v. WinCo Meals Holdings, Inc, et al. that class members who weren’t but employed by WinCo weren’t entitled to compensation for the time required to take a pre-employment drug check, nor was WinCo required to cowl the journey bills related to present process the check.

Info of WinCo

Plaintiff Alfred Johnson represented a category of profitable candidates who acquired presents of employment from WinCo. As a part of the post-offer course of, candidates had been notified that they needed to take a compulsory drug check. If the applicant agreed to the drug check, WinCo instructed candidates to report back to a testing location. WinCo paid the drug testing price, however didn’t compensate for the journey bills and time required to bear the testing.

Johnson argued that Plaintiffs ought to have been compensated for the time and bills of taking a drug check as profitable candidates. Plaintiffs contended as a result of the exams had been administered beneath the management of WinCo, Plaintiffs should be categorized as staff (pursuant to California’s “management check,” which determines whether or not an employment relationship exists). This check examines the way in which a person workout routines management over a particular job and whether or not it signifies an employment relationship.

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Plaintiffs additionally argued, within the different, that the category members had been staff beneath a contract principle. Particularly, they contended that passing a drug check was a “situation subsequent” to their hiring, pursuant to California Civil Code part 1438. This meant {that a} contract for employment was shaped earlier than the drug check was taken and, within the occasion the worker failed the drug check, WinCo might terminate their employment.

Holding of WinCo

The Ninth Circuit rejected each of Plaintiffs’ arguments. First, the Court docket rejected the management check and decided it was inapplicable right here, based mostly primarily on the reasoning that drug testing was a option to safe employment reasonably than a duty for these already employed. The panel defined that although WinCo exercised management over the time and placement of the drug check, as a result of the category members weren’t really performing work for WinCo when present process this drug check, they weren’t but staff. The Court docket likened the act of taking this drug testing to an interview or pre-employment bodily examination, explaining that it was an exercise to safe a place, not a requirement for these already employed.

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Second, the Ninth Circuit held that there was no situation subsequent as a result of Plaintiffs weren’t employed till they established they had been certified (i.e. handed a drug check). On this case, there was no written contract (solely a verbal supply), and the drug check was a situation precedent. The Court docket acknowledged that class members who accepted such presents will need to have recognized that they had been accepting an employment supply contingent on a profitable drug check. As a result of the category members didn’t develop into staff till they happy the situation of passing the drug check, they weren’t entitled to compensation for his or her time taking the check.

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Lastly, the Ninth Circuit acknowledged that as a result of California legislation is evident on the topic, there was no want for it to certify any inquiries to the California Supreme Court docket. This determination additional builds on prior case legislation holding that California employers should not have to compensate candidates for pre-employment actions, equivalent to interviews, drug exams, and bodily examinations.

Please observe, this case is restricted to pre-employment drug testing and doesn’t talk about drug testing for present staff. To make sure compliance with California legislation, employers ought to clarify that any employment supply they lengthen is contingent upon passing a pre-employment drug check. As at all times, employers are inspired to contact skilled employment counsel to make sure compliance with California’s wage and hour legal guidelines.