Alfred Johnson v. Winco Foods, LLC
37 F.4th 604
9th Cir.2022Background
- WinCo made verbal contingent job offers that informed applicants a preemployment drug test and background check were mandatory; applicants who consented were directed to a testing facility.
- WinCo paid the testing provider’s fee but did not reimburse applicants for travel time or expenses to take the test.
- Alfred Johnson filed a class action in California state court seeking reimbursement for time and travel to take the drug test; the case was removed to federal court under CAFA.
- The district court certified a class, then granted summary judgment for WinCo, holding applicants were not employees when tested and thus not entitled to compensation.
- Plaintiffs advanced two main theories: (1) WinCo’s control over testing made applicants employees under California’s control test; (2) the drug test was a condition subsequent to an already-formed employment contract.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WinCo’s control over the preemployment drug test makes applicants employees under California’s control test | Johnson: employer control of testing (time, place, scope) renders applicants employees | WinCo: control over application logistics is not control over the manner and means of performing employment | Held: No — control test addresses control over job performance, not application screening; applicants were not employees when tested |
| Whether the drug test is a condition subsequent (employment formed before testing) or a condition precedent (employment forms only after passing) | Johnson: the verbal offer created employment subject to a subsequent condition (test) | WinCo: the verbal contingent offer and instructions made passing the test a condition precedent to hiring | Held: Condition precedent — WinCo’s contingent offer and communications made employment dependent on passing the test; no employment until condition satisfied |
Key Cases Cited
- Martinez v. Combs, 49 Cal. 4th 35 (2010) (applies IWC definitions and control test in assessing employer/employee and joint-employer status)
- S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989) (establishes control over manner and means as principal test for employment)
- Loder v. City of Glendale, 14 Cal. 4th 846 (1997) (recognizes prevalence of preemployment medical testing and reduced privacy interest for applicants)
- Bowen v. Workers’ Comp. Appeals Bd., 73 Cal. App. 4th 15 (1999) (interprets condition subsequent in workers’ compensation context; decision guided by liberal construction in favor of employees)
- International Brotherhood of Teamsters v. NASA Servs., Inc., 957 F.3d 1038 (9th Cir. 2020) (courts must examine contract terms to determine whether conditions are precedent or subsequent)