CALIFORNIA: No pay due for applicants’ time to take drug tests

The U.S. Ninth Circuit Court of Appeals recently ruled that California employers aren’t required to compensate applicants for time and travel expenses required to undergo mandatory preemployment drug tests. A grocery store with locations in California offered jobs to applicants contingent on a successful background check and drug test. The company paid the drug testing fees for applicants, but didn’t compensate them for their time or travel expenses to undergo the tests.

One successful candidate believed he should have been paid for his time, arguing that he was actually an employee once he received the conditional job offer. He filed a class action lawsuit on behalf of himself and other employees under the California Labor Code relating to the payment of wages and business-related expenses and the California Business & Professions Code, proscribing unfair business practices.

The Ninth Circuit concluded that the applicants weren’t employees because they weren’t performing work when they took the drug tests and there was no formation of an employment contract prior to the drug testing. In dismissing employees’ claims, the court ruled that preemployment drug testing was an activity to secure a job position and wasn’t required for individuals who were already employed with the company (Johnson v. WinCo Foods, 9^th Cir, June 2022).

Tips: You’re not required to compensate applicants for preemployment activities such as interviews, drug tests, and post-offer physical examinations, but if you extend a job offer, make sure you clearly spell out any contingencies. As explained in a separate article in today’s newsletter (“Q&A: Hiring before receipt of drug test and background check is risky”), if you require preemployment drug tests, you shouldn’t place a new worker on the job until you receive their confirmed drug test results. If you have any questions about preemployment drug testing or background checks, feel free to contact your Vigilant Law Group employment attorney.