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Supreme Court Upholds Constitutionality Of NASA’s Background Checks On Contract Employees On January 19, 2011, the United States Supreme Court unanimously affirmed the constitutionality of the background check used by the National Aeronautics and Space Administration (NASA) for its contract employees. NASA’s background check inquires, in relevant part, whether contract employees have “used, possessed, supplied, or manufactured illegal drugs” in the past year. If the employee answers in the affirmative, NASA then asks for information regarding any treatment or counseling received. Finally, NASA sends a questionnaire to each employee’s references that asks whether there is any reason for the person to question the employee’s honesty or trustworthiness. Until 2007, NASA did not conduct background checks on contract employees working at its Jet Propulsion Laboratory (JPL) at the California Institute of Technology. However, NASA was required to institute the background check at issue in 2007 as part of a broader initiative to use background checks on all civil service and contract employees with long-term access to federal facilities. A group of contract employees working at the JPL filed suit to have NASA enjoined from using the background check, arguing that the check violates their constitutional right to privacy. The district court declined to issue a preliminary injunction, but the Ninth Circuit reversed, holding that the questions regarding treatment or counseling for drug use do not further any legitimate interest and that the open-ended questionnaires sent to references are not narrowly tailored and therefore are unconstitutional. The Supreme Court reversed the Ninth Circuit’s holding, finding that NASA’s background check closely resembles other checks that have been used by public and private employers for decades. The Court emphasized NASA’s interest in managing its internal operations and found that the questions concerning drug use, therapy for drug use, and the employee’s trustworthiness all furthered this interest by ensuring the security of its facilities and the competence of its workforce. In reaching its decision, the Supreme Court held that employers do not have to show that the questions used in background checks are “necessary” or “the least restrictive means” to further their interests. The Supreme Court also noted that any personal information collected by NASA is protected from unwarranted disclosure by the Privacy Act of 1974 - which allows the Government to maintain only those records “relevant and necessary to accomplish” a purpose authorized by law, 5 U.S.C. §552a(e)(1); requires written consent before the Government may disclose an individual’s records, §552a(b); and imposes criminal liability for willful violations of its nondisclosure obligations, §552a(i)(1). The Supreme Court’s decision offers encouraging language for private employers conducting background checks. However, the practical impact of the decision will likely be limited with regard to private employers, as the case concerned a federal agency and the Privacy Act. © 2011 Kiesewetter Wise Kaplan Prather, PLC |
