An appellate ruling for a federal case originally filed in San Bernardino Superior Court has decided that employers are not responsible for the time or expense a person undergoes to take drug tests before being accepted as a new hire.
In a class action suit filed Aug. 23, 2017, Alfred Johnson had sued WinCo Foods for not paying him and others to take drug tests.
He claimed that he must be considered as an employee under California law at the time he took the drug test.
The appellate panel disagreed, saying that Johnson was not performing work for WinCo when they required he take a pre-employment drug test; it was part of his application for the job.
The district court had also ruled against Johnson.
Case facts
WinCo Foods is a supermarket chain with locations in Indio, Temecula, Victorville, Apple Valley, Fontana, Norco, Moreno Valley, Perris and Hemet. They employ 4,000 Californians across 37 stores in the state, and operate 115 stores across the Western United States, according to Johnson’s complaint.
The company requires applicants to pass drug tests before they are hired. WinCo pays for the testing facility’s fee, but does not compensate for travel or time associated with this requirement.
Johnson was employed as a meat and pizza clerk at WinCo’s Victorville location from February to August, 2016, according to his complaint.
He claimed the company kept the location understaffed, forcing employees to work overtime and through their lunch breaks.
Johnson alleged unpaid minimum wage and unreimbursed business expenses relating to the drug tests. Johnson spent two and a half hours traveling to and taking his drug test, he claimed.
He also alleged, related to the general working conditions, unpaid overtime, failure to provide meal periods, failure to provide rest periods, non-compliant wage statements, wages not timely paid upon termination, unreimbursed business expense and unlawful business practices regarding meal and rest breaks.
He requested $25,000 for damages, unpaid wages and attorney costs.
WinCo moved the case to federal court under the federal Class Action Fairness Act because the affected plaintiffs lived in multiple states, because the class members were more than 100 and because the payout could be more than $5 million.
Case arguments
Johnson argued that the plaintiffs must be regarded as employees because they were under the control of WinCo when they took the drug tests. He also argued that under California law the drug test should be regarded as a condition subsequent to their hiring.
The appellate court disagreed with both.
“The control test relates to control over the manner of performance of the work itself, not the manner of establishing qualifications to do the work. There was no condition subsequent because plaintiffs were not hired until they established they were qualified,” the ruling says.
Case information
Melissa Grant, Ryan Hu, and Tyler Anderson of Los Angeles’ Capstone Law APC represented Johnson.
Kiran Seldon, Kristina Launey and Michael Kopp of Los Angeles’ Seyfarth Shaw LLP represented WinCo.
Central District Judge David Carter had presided.
San Bernardino Superior case number CIVDS1716405.
Federal case number 5:17-cv-02288.
Appellate case number 21-55501.
Read Johnson’s complaint here.
Read the appellate ruling here.
