Applicant or Employee? There's a Difference!

07/12/2022 10:00 AM By Kayla Florence

If you are applying for a job that requires a pre-employment drug test, should the company reimburse you for travel arrangements or your time spent? This became a pressing question in the case of Johnson v. WinCo Foods in June of 2022 in which it was decided that California employers are not required to compensate applicants for pre-employment activities.

Alfred Johnson represented a group of applicants who were successfully interviewed and offered positions of employment from WinCo Foods. Candidates were notified of a mandatory drug test as a part of the proceeding hiring process. The drug tests were conducted at a location and times determined by WinCo. The company paid for the testing fee; however, they did not compensate the applicants for their overall involvement with the task.

Johnson contended that the prosecuting party should have been compensated, assuming the tests being administered under WinCo’s control served as evidence of the Plaintiffs’ positions as employees. Plaintiffs add that the drug test was named as a “condition subsequent” to their hiring in accordance with California Civil Code Section 1438. This meant that a contract for employment was developed before the drug test and would only be terminated if the employee failed the drug test.

The Ninth Circuit dismissed the complainants’ disputes explaining the drug testing as a measure to assure the position as opposed to being a responsibility for those already employed. Even though WinCo had control over the time and location, the members were not actually doing work for the company when doing this test, therefore, not to be classified as employees. The court also determined that the Plaintiffs were not officially considered to be hired until it was determined that they were qualified through the act of passing a drug test. Since the members are not considered employees without satisfying the condition of passing the drug test, they were not entitled to compensation for their time taking the test.