Have you ever had a job applicant demand compensation? At Randisi & Associates, Inc., we have encountered two instances where an applicant demanded compensation from a client. In both cases, it was a matter of being compensated for time spent taking a drug test. We thought it would be valuable to provide a synopsis of an article recently published by Seyfarth Shaw to shed light on this issue.
The decision came from the Ninth Circuit, which is not known for siding with employers. They ruled that, due to the absence of an employment relationship, job applicants are not entitled to compensation for drug tests. Under California law, the applicants would not possess an employment contract until after passing pre-hire drug tests. If you’re ever confronted with this type of situation, we always recommend seeking the advice of competent employment legal counsel. They can provide you with sound guidance and assist you with the job applicant’s payment request.
Plaintiff Alfred Johnson filed a class action complaint in California state court alleging that he was an employee when he took a drug test as part of WinCo Food’s “contingent job offer.” Johnson asserted claims under the California Labor Code and California’s Unfair Competition Law, seeking compensation for the time and expenses (mileage) associated with traveling to, and taking, the drug test.
The District Court’s Decision
The District Court granted summary judgment in WinCo Food’s favor, holding that Johnson and the class members were not employees when they took the drug test.
The Ninth Circuit’s Decision
The Ninth Circuit Court affirmed the District Court’s ruling and declined to send the question to the California Supreme Court because “California law is clear.” Ultimately, Johnson and the other class members “were not yet employees” when they took the drug tests and thus were not owed any compensation for any associated time and expenses.
The Court first held that the “control test” established by the California Supreme Court in Borello and Martinez does not apply to job applicants taking a drug test. This is because “class members were not performing work for an employer when they took the pre-employment drug test; they were instead applying for the job.”
The Ninth Circuit also addressed Johnson’s “contract theory”— namely, that an employment contract was formed the moment class members accepted WinCo Food’s contingent job offer. The Court rejected this argument, noting that “WinCo went to great lengths when the verbal offer was made to communicate that its job offer was conditional.”
What Johnson Means for Employers
Johnson makes clear that employers do not need to compensate job applicants for the time and expenses related to drug testing during the application process (except for the cost of the drug test), and that the employment relationship does not begin until the condition is satisfied. To avoid any doubt, employers should be careful to expressly articulate that an offer of employment is contingent on passing the drug test, and explain what must be done to satisfy the contingency.
James P. Randisi, President of Randisi & Associates, Inc., has since 1999 been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: email@example.com or the website at randisiandassociates.com