Drug test travel expenses do not need to be reimbursed by the employer


A federal appeals court recently upheld summary judgment in favor of WinCo Foods in a class action lawsuit alleging that WinCo should have reimbursed successful applicants for the time and travel expenses they incurred to obtain a drug test as a prerequisite for employment. In Johnson vs. WinCo Foods, LLCthe court agreed with a lower court that WinCo was not obligated to reimburse these costs because the plaintiffs were not employees of WinCo at the time they took the drug tests.

The plaintiffs had made two arguments that they were in fact employees of WinCo at the time of the drug test. First, the plaintiffs argued that they were employees of WinCo because WinCo “controlled” the administration of the drug test. Under California law, a court can use the “control test” – examining the degree of control the alleged employer has over the alleged employee’s “wages, hours, or working conditions” – to determine whether there is an employer-employee relationship.

However, the Ninth Circuit declined to enforce the control test here because the plaintiffs were not working for WinCo when they took the drug test. Rather, the drug test was “part of the job application process” as opposed to “the performance of the job”.

In the alternative, the plaintiffs argued that under California contract law, an employment contract with WinCo had been entered into prior to the drug test, at the time WinCo informed the plaintiffs of the need to take a drug test to secure their “conditional job offer”. .” The plaintiffs argued that a successful drug test was a “post-condition” to that existing employment contract, allowing WinCo to terminate the contract if the drug test failed, but merely confirming the status of complainants’ current employment if they passed the drug test.

The Ninth Circuit disagreed, saying a successful drug test was a condition instead. previous to an employment contract with WinCo. In its communications with the plaintiffs, WinCo made it very clear that the plaintiffs’ hiring would only take place after a successful drug test, for example calling the job offer “contingent.” and informing the plaintiffs that a successful drug test was a condition of this contingent job offer.

Given what the Ninth Circuit called “the ubiquity of pre-employment drug testing” and other application requirements, the move should be a welcome one for California employers. We will continue to monitor this case for any updates.

© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 167


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