On June 13, 2022, the Ninth Circuit Court of Appeals held in Johnson v. WinCo Foods, LLC that California employers do not need to pay prospective employees for their time or travel to a pre-employment drug screening because they are not yet employees. The plaintiffs argued that the drug tests were administered “under the control of the employer” because the employer prescribed the time, date, and location of the tests. However, the Court found that the drug test was part of the job application process, and therefore, the employer was not exercising control over the performance of the job.
The plaintiffs further argued that the applicants were employees under a contract theory, claiming that the drug test was a condition subsequent: Since the applicants had accepted the job offer, the employment relationship was already formed. However, the Court rejected this argument as well, finding that the offer of employment was conditioned on the passing of the drug test. Thus, a conditional offer cannot be accepted until all conditions are met, including passing the drug test, so the test was a condition precedent of the contract, just as a background check would be.
California employers can comfortably condition an applicant’s employment on successfully passing a drug test without having to compensate the applicant for their time and travel expenses in obtaining the drug test. If you have any questions, please reach out to our California Legal Services team at CAInfo@employerscouncil.org.
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