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  • Abigail Zelenski

Ninth Circuit Holds that Pre-Employment Drug Testing is Not Compensable Under California Law

Updated: Oct 5, 2022

In Johnson v. WinCo Foods Holdings, Inc., the Court of Appeals for the Ninth Circuit held that the time spent by job applicants on taking pre-employment drug tests is not compensable. In Winco, the plaintiffs consisted of a class of job applicants who had received job offers conditioned on taking successful pre-employment drug tests. The drug tests were scheduled by the defendant, i.e., the hiring entity. While the defendant paid for the drug tests themselves, the defendant did not compensate plaintiffs for the time spent on taking the tests or for mileage to travel to the testing sites. In its ruling that the time spent on taking the drug tests is not compensable, the Ninth Circuit reasoned that there was no contract of employment at the time the drug tests were performed, the drug tests were part of the job application process, and neither the drug tests or the test results controlled any part of the applicants’ job duties or performance.

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