Johnson v. WinCo Foods, LLC, 2022 WL 2112792 (9th Cir. 2022)

Alfred Johnson brought this class action against WinCo, seeking compensation as an “employee” for the time and expense of taking a drug test as a successful applicant for employment. Plaintiffs argued that because the drug tests were administered under the control of the employer, they qualified as “employees” under California law. The district court granted summary judgment in favor of the employer on the ground that plaintiffs were not yet employees when they took the drug test and the control test in California applies to control over the manner of performance of the work itself, not the manner of establishing qualifications to do the work as in this case. The Court also rejected plaintiffs’ contract theory on the ground that they were not hired until they established they were qualified for the job by passing the drug test. The Ninth Circuit affirmed the judgment in favor of the employer.