Exactly when does an employee start being an ‘employee’?

Are California employers required to compensate job applicants for the time and expense of taking a mandatory drug test? The 9th Circuit (which covers California) recently held a district court properly entered judgment for the company and found that class members weren’t employees at the time of the preemployment drug test—and therefore, they didn’t need to be compensated.

The 9th Circuit held the members of the class weren’t performing work for the employer when they took the drug test. Rather, they were applying for the job and weren’t yet employees. The class asserted they were and should be compensated employees for the time and expense of taking a drug test as a successful applicant for employment.

Background

Grocery store chain WinCo Foods requires a drug test of successful applicants for employment before they can begin work. Alfred Johnson represented a class of employees seeking reimbursement for the time and travel expenses required to take the drug test.

The district court entered judgment in favor of WinCo on the grounds that under California law, the plaintiffs weren’t yet employees when they took the drug test. The plaintiffs appealed, arguing they were employees.

WinCo has about 100 locations across the western United States, including California. When the grocery store hires new employees, a hiring manager calls successful applicants to extend what the company terms a contingent offer of employment. The offer includes the following: