California: Applicant Time Spent on Pre-Employment Drug Tests is Noncompensable

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All Employers with CA Employees

EFFECTIVE

June 13, 2022

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In Johnson v. WinCo Foods LLC, the Ninth Circuit Court of Appeals stated that where an employer requires a pre-employment drug test as a conditional job offer before the individual becomes an employee, time spent traveling to and attending the drug test is noncompensable.

There, applicants would receive an offer of employment conditioned on a successful drug screen. The employer did not compensate applicants for time spent in connection with the drug test, but did pay for the cost of the drug test. Applicants claimed that they were under the control of the employer for purposes of getting a drug test, and they were employees having accepted a job offer.

The court distinguished drug testing in this context as a means for applicants to secure employment rather than connected to a duty an employee has in the context of employment. This meant that the drug test was not a “condition subsequent” (occurring after) employment, but a “condition precedent” (occurring before) employment. Thus, the employer’s control over the applicants’ activity was irrelevant as they were not yet employees.

Action Items

Review offer letters to confirm drug testing as a precondition to employment, if applicable.
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