Although less than 2% of job listings disclose that a pre-employment drug test is a condition of hiring, many companies continue to rely on these tests as a part of their regular due diligence. Just like ordering a background check, employers want to be sure they are not about to hire someone who may arrive at work dangerously intoxicated. Although drug test usage has declined in some industries, many continue to mandate that applicants and employees submit to drug screening.
That raises an interesting question: does an employer have to pay wages for the time someone spends submitting to a mandatory drug test?
A recent California federal court ruling has provided some employers with a clear answer.
Applicants Aren't Employees, Court Says
At the heart of the case were policies used by grocery retailer WinCo Foods. A drug test for employment in one of the company's stores was a routine requirement. However, the chain faced a lawsuit from some job applicants who claimed they were unfairly denied compensation for the effort involved. Although WinCo, like many employers, covered the cost of the tests, it was an applicant's responsibility to travel to the testing site. The plaintiffs in the suit contended they were owed compensation for travel and their time.
The Ninth Circuit Court of Appeals disagreed. Finding that there was no formal or implied contract of employment between the supermarket and its job applicants, the court ruled the individuals were not yet employees and thus were not owed any pay for the time involved in taking the test.
Note that this case specifically concerned those applying for a job. When employers require an existing employee to submit to a drug test, paying employees for their time as if they were "on the clock" for the process is mandatory. This requirement is currently law under the Fair Labor Standards Act.
Can You Require Applicants To Pay for Their Own Tests?
What about the drug testing process itself—do employers have to cover those costs? In some states, such as Florida, employers face a statutory mandate to pay all the costs of the drug tests they mandate employees and applicants take. Individuals must only pay for tests they submit above and beyond what an employer requires. While it is not always expressly prohibited to require applicants to pay, doing so risks creating potential appearances of discrimination.
Protecting your business from potential harm caused by intoxication is a smart move. A reliable resource for running drug screens on candidates is an important asset, too. However, the key to a successful policy is a thorough understanding of the law—including when and how you must pay individuals for their time during a drug test. Review your policies today and consider whether you need to make any changes.
About Michael Klazema The author
Michael Klazema is Chief Marketing Technologist at EY-VODW.com and has over two decades of experience in digital consulting, online product management, and technology innovation. He is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments.