This week, the Ninth Circuit addresses the employment status of job applicants made to take drug tests and the availability of an award of attorney’s fees under Federal Rule of Civil Procedure 41(d).


The Court holds that job applicants to supermarket chain were not employees at the time of mandatory pre-employment drug test, and therefore not entitled to compensation for the taking the test.

Panel: Judges Schroeder, Thomas, and Bea, with Judge Schroeder writing the opinion.

Key Highlight: “Drug testing, like an interview or pre-employment physical examination, is an activity to secure a position, not a requirement for those already employed.”

Background: Plaintiff Alfred Johnson represents a class of former employees at WinCo Foods. Defendant WinCo Foods is supermarket chain that requires job applicants to take a mandatory drug test as part of their contingent job offer. Plaintiffs sued WinCo in California state court, seeking reimbursement for the expenses required to take the drug test; in short, they argued that they were WinCo employees at the time of the test and therefore entitled to compensation for their time and travel. WinCo removed the case to federal court under the Class Action Fairness Act. The district court granted summary judgment for WinCo, finding that the class members were not WinCo employees at the time of the drug test. Plaintiffs appealed.

Result: The Ninth Circuit affirmed. The panel addressed Plaintiffs’ two arguments in turn. First, the panel held that the “control test” for employment does not apply. Plaintiffs argued that they were employees at the time of the drug test because they were under the “control” of WinCo. However, the Court determined that the control test was inapplicable because plaintiffs were not actually working for WinCo at the time of the drug test; rather, they were job applicants. Second, the panel held that the drug test is not a condition subsequent to employment. Plaintiffs argued that they were employees prior to the drug test, but that WinCo could terminate the employment contract in the event of a negative test. Again, the panel disagreed. The panel held that any employment offer was contingent on a successful drug test. Therefore, the drug test is a condition precedent, not a condition subsequent.


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