Labor & Employment Law Blog

On January 19, 2011, the United States Supreme Court held in NASA v. Nelson that the government’s implementation of a background check program for current employees did not violate their constitutional right to informational privacy. At the time of their hire, the contract employees at NASA’s Jet Propulsion Laboratory were not subjected to government background checks. However, the Department of Commence subsequently ordered that all employees with long-term access to federal facilities complete a standard background check for purposes of uniform identification for all federal employees. JPL notified its employees that if they failed to complete the background check process, they would be denied access to the facilities and face termination.

The background check included questions pertaining to employee illegal drug use, treatment and counseling. It also required that employees sign a waiver granting access to personal information from schools, employers and other sources. Those references would be subject to broad questions as to whether they had cause to doubt the honesty or trustworthiness of the JPL employees or if they had any “adverse information” about a variety of other matters.

The employees initiated suit on the grounds that the mandatory background checks violated their constitutional right to informational privacy. The Ninth Circuit granted injunctive relief in favor of the employees, holding that the questions pertaining to drug treatment and counseling did not further a legitimate interest and were therefore likely unconstitutional. The Ninth Circuit also held that that the broad questions directed to the employees’ references were not sufficiently narrowly tailored to further the government’s interest in identifying contractors and ensuring the security of JPL’s facilities.

After granting certiorari, the Supreme Court rejected the Ninth Circuit’s decision. In a unanimous decision, the Supreme Court held that the background check questions were reasonable in light of the government’s interests at stake. The decision was set against the backdrop that similar background checks have been in place for federal civil-service candidates for years without issue.

The Supreme Court noted that the government has a legitimate interest in conducting such background checks to securing its worksite facilities and employing a competent workforce. With respect to the legitimacy of the questions pertaining to drug treatment, the Supreme Court therefore held that they were reasonable inquiries related to evaluating its employees. Specifically, these questions were seeking to distinguish those employees that were drug users from those that had actively sought treatment to overcome their issues.  The Court used the same analysis with respect to the open-ended conduct questions directed towards the employees’ references, finding that that they were reasonable methods from identifying strong and weak candidates. These were deemed to be reasonable inquiries that furthered the government’s interest in having capable employees.

The Court noted that the government did not have the burden of proving that the background questions were the least restrictive means available to achieve its reasonable goals. Finally, the Supreme Court concluded that any information collected through the background checks was subject to substantial protections against unwarranted disclosure to the public based on the Privacy Act.

This decision should be of particular interest to public employers, as it illustrates their ability to make potentially sensitive inquiries into the backgrounds of both prospective and current employees, if there is an identifiable and reasonable, employment-related purpose for the questioning. Notably, the Supreme Court established that the efficient management of a government entity’s internal operations is satisfactory to meet that burden.