2022Drug Testing

Written By Digital Content Editor Thomas Ahearn

On June 13, 2022, the United States Court of Appeals for the Ninth Circuit affirmed a district court’s judgment in a class action lawsuit that a job applicant is not entitled to be repaid by an employer for the time spent and travel expenses when undergoing a successful drug test as a condition of employment under California law. 

In 2021, a California district court had entered judgment in favor of the defendant, a supermarket chain, in the class action brought by a lead plaintiff on behalf of himself and other supermarket employees in California, on the grounds that these plaintiffs were not yet employees when they took the drug test under California law.

The plaintiffs had argued that because the drug tests were administered under the control of the employer, they must be regarded as employees under California law. The Ninth Circuit rejected this argument because control over a drug test as part of the job application process is not control over the performance of the job itself.

“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,” Senior Circuit Judge Mary M. Schroeder wrote in the opinion.

In this case, the class members were not performing work for an employer when they took the pre-employment drug test but were instead applying for the job and were not yet employees. The Ninth Circuit concluded the class members did not become employees until they satisfied the condition of passing the drug test.

“Drug testing, like an interview or pre-employment physical examination, is an activity to secure a position, not a requirement for those already employed,” Senior Circuit Judge Schroeder wrote. “The fact that employers control the manner in which these activities take place does not magically convert applicants into employees.”

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