California Employers Need Not Cover Pre-Employment Drug Test Expenses

Author: Michael Cardman, XpertHR Legal Editor

June 22, 2022

The California supermarket chain WinCo did not need to pay job applicants for their travel expenses or for the time required to undergo pre-employment drug tests, the 9th Circuit Court of Appeals has ruled.

The court's ruling in Johnson v. WinCo Foods, LLC shows that employers can help shield themselves from liability by explicitly making job offers contingent on applicants passing pre-employment drug tests and/or background checks rather than onboarding applicants before testing them.

In particular, the court cited how WinCo instructed hiring managers to communicate that job offers are contingent and emailed successful applicants instructions related to the preemployment drug test.

Although employers generally are required to cover employees' travel expenses under California's business-expense reimbursement law and to pay employees for time spent traveling and undergoing testing, the applicants were not actually employees, the 9th Circuit held.

The plaintiffs in the case argued that they should have been treated as employees because they were under the control of WinCo when the drug tests were administered, and California law applies a right-to-control test to determine whether an employment relationship exists. For example, WinCo set out the time and date of the tests, the facility where they took place, and their scope.

However, "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," the 9th Circuit said.