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Ninth Circuit Holds that Job Applicants Are Not Employees When Considering Compensation Issues

Last week, the Ninth Circuit Court of Appeals ruled that a job applicant is not considered an employee for compensation purposes. In the case of Johnson v. Winco Foods, the Court held that job applicants are not entitled to compensation for the time expended by the applicant to complete pre-employment drug tests because an employment relationship has not yet materialized.

In its opinion, the Court rejected the notion that job applicants are considered employees under either a “control theory” or “contract theory” of employment. The Court noted that the “control test” that the California Supreme Court utilizes to evaluate employment relationships does not apply to job applicants taking a drug test. The Court reasoned that this was the case because an employer’s control over a drug test as part of the job application process does not equate to control over the performance of the job. The Court also noted that an employment contract is not formed when an applicant accepts a job offer that is contingent upon passing a drug test because passing a drug test is a “condition precedent” to contract formation. As a result, no employment contract exists until the contingency is satisfied. 

This Ninth Circuit opinion is a reminder to employers to review your employment agreement and pre-hire practices in order to limit your potential liability. Contact the Employer Lawyers at Chauvel & Glatt to assist your business to limit your risk.

This material in this article, provided by Chauvel & Glatt, is designed to provide informative and current information as of the date of the post. It should not be considered, nor is it intended to constitute legal advice.  For information on your particular circumstances, please contact Chauvel & Glatt at 650-573-9500 for legal assistance near you.


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