Gavel.jpgRecently, the Supreme Court reversed a decision of the Ninth Circuit and upheld the federal government’s ability to conduct employee background checks in an 8-0 decision (Justice Kagan did not participate) in NASA v. Nelson (No. 09-530).

The National Aeronautics and Space Administration (“NASA”) is an independent federal agency which has a workforce consisting of both federal civil servants and contract employees who are employed by Government contractors.  The Jet Propulsion Laboratory (“JPL”), a NASA facility, is staffed exclusively by contract employees.  In 2007, twenty eight JPL employees objected to mandatory background checks on the grounds that some of the inquiries violated their constitutional right to “informational privacy.”  The employees objected to a form questionnaire that asked them about treatment or counseling for recent illegal drug use.  They also objected to a form which was sent to their designated references that asked “open-ended” questions about the applicant’s “suitability for government employment and security,” “honestly and trustworthiness,” “financial integrity,” and “mental and emotional stability.”  At the time they were hired many years ago, the JPL employees were not subjected to a background check because background checks were only required for federal civil servants.  However, this changed when a recommendation by the 9/11 Commission prompted the Government to begin requiring contract employees with long-term access to federal facilities to complete background checks.  JPL management informed employees that anyone failing to complete the background check would be denied access to JPL and face termination.

The Ninth Circuit had enjoined the forms as likely being unconstitutional because  the questions about drug treatment and counseling did not serve a legitimate government interest and the open ended questions for references were not narrowly tailored to meet the government’s security interests.

In an interesting majority opinion, the Supreme Court avoided a longstanding constitutional question by declining to address whether the right to “informational privacy” actually exists under the Constitution.  Based on its explicit assumption that the background checks implicated a constitutional right, the Court held that the challenged background forms do not violate the right to “informational privacy.”  The Court found that the Government had the right to conduct the background checks because of its interest as an employer and proprietor in managing its internal operations.  The Court further stated that reasonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent workforce.  The Court emphasized that a government employer need not demonstrate that questions asked in background checks are the least restrictive means of obtaining the information as long as the questions are job-related. 

The Court found that the Government’s stated purpose in asking the drug treatment and counseling questions – to identify mitigating factors for employees who had used illegal drugs – was reasonable and “humane.”  The Court also found that it was reasonable to ask references “broad, open-ended questions about job suitability” to identify strong candidates.  The Court stated that the widespread use of these questions for employment purposes in the public and private sector further demonstrated their reasonableness.  Finally, the Court noted that any private information gathered in the background checks was protected in most instances from disclosure to third parties without the written consent of the employees.

Practice Tips:

The decision provides strong support for public employers to ask hiring questions as long as those questions are job-related, even if the questions are not narrowly tailored to satisfy a specific government interest.  While the Court emphasized that public employers have broad latitude in their hiring inquiries, public employers are still limited by other laws (and in California by the state constitution) from asking private questions.  In particular, questions about drug counseling and treatment are still prohibited under the ADA and FEHA prior to a conditional offer of employment, as those laws protect recovering and recovered drug addicts who no longer use drugs from discrimination.  Thus, public employers should continue to ensure that their hiring and background check processes are designed to only determine if the applicant can perform the essential duties of the job and would be a competent employee.