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.

Continue Reading U.S. Supreme Court Holds Employee Background Checks Do Not Violate Privacy Rights