A federal appeals court recently affirmed a summary judgment entered in favor of WinCo Foods in a class action alleging that WinCo should have reimbursed successful job applicants for the time and travel expenses they incurred in obtaining a drug test as a pre-condition of employment.  In Johnson v. WinCo Foods, LLC, the court agreed with a lower court that WinCo was not obligated to reimburse those costs because plaintiffs were not employees of WinCo at the time that they took the drug tests.

The plaintiffs had advanced two arguments that they actually were WinCo employees at the time of the drug test.  First, the plaintiffs argued that they were WinCo’s employees because WinCo “controlled” the administering of the drug test.  Under California law, a court may use the “control test”—examining how much control the alleged employer exercises over the alleged employee’s “wages, hours, or working conditions”—to determine whether an employer-employee relationship exists.

However, the Ninth Circuit declined to apply the control test here because the plaintiffs were not working for WinCo when they took the drug test.  Rather, the drug test was “part of the job application process” as opposed to “performance of the job.”

In the alternative, the plaintiffs argued that under California contract law, an employment contract with WinCo had been formed prior to the drug test, at the time that WinCo notified the plaintiffs of the need to take a drug test to secure their “contingent job offer.”  The plaintiffs argued that a successful drug test was a “condition subsequent” to that existing employment contract, allowing WinCo to terminate the contract if the drug test was unsuccessful, but merely confirming the plaintiffs’ existing employment status if they passed the drug test.

The Ninth Circuit disagreed, finding that a successful drug test was instead a condition precedent to an employment contract with WinCo.  In its communications with the plaintiffs, WinCo was very clear that the plaintiffs’ hiring would not occur until after a successful drug test by, for example, calling the job offer “contingent” and informing the plaintiffs that a successful drug test was a condition of that contingent job offer.

Given what the Ninth Circuit characterized as “the ubiquity of preemployment drug tests” and other job application requirements, this decision should be a welcome one for California employers.  We will continue to monitor this case for any updates.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Dixie Morrison Dixie Morrison

Dixie Morrison is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Discrimination, Harassment, & Title VII and the Labor-Management Relations practice groups.

Dixie assists clients across a…

Dixie Morrison is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She is a member of the Discrimination, Harassment, & Title VII and the Labor-Management Relations practice groups.

Dixie assists clients across a variety of industries in litigation and arbitration relating to wrongful termination, discrimination, harassment, retaliation, wage and hour, trade secrets, breach of contract, and whistleblower matters in both the single-plaintiff and class and collective action contexts. She also maintains an active traditional labor and collective bargaining practice and regularly counsels employers on a diverse range of workplace issues.

Dixie earned her J.D. from Harvard Law School, where she was the Executive Editor of Submissions for the Journal of Sports and Entertainment Law. Dixie received her B.A., magna cum laude, from Pomona College. Prior to law school, she served as a labor and economic policy aide in the United States Senate.