Labor & Employment Law

Supreme Court will decide constitutionality of NASA background investigation.

The US Supreme Court announced today that it will review a controversial decision from the 9th Circuit - National Aeronautics and Space Administration [NASA] v. Nelson.

Nelson requested a preliminary injunction to prevent implementation of NASA's requirement for in-depth background investigations of "low risk" contract employees. The trial court denied the request for a preliminary injunction. The 9th Circuit reversed.

Given the open-ended and highly private questions authorized by the investigation which did not appear narrowly tailored to any legitimate government interest, the 9th Circuit concluded the trial court erred in finding that Nelson was unlikely to succeed on his informational privacy claim. The court stated the balance of hardships tipped sharply towards Nelson, who faced a stark choice - either violation of his constitutional rights or loss of his job.

The US Supreme Court granted certiorari to review the 9th Circuit judgment.

We expect oral arguments to be scheduled for the fall of 2010.

Question presented:

1. Whether the government violates a federal contract employee?s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee?s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.

2. Whether the government violates a federal contract employee?s constitutional right to informational privacy when it asks the employee?s designated references for any adverse information that may have a bearing on the employee?s suitability for employment at a federal facility, the reference?s response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.

Full post as published by Ross' Employment Law Blog on March 08, 2010 (boomark / email).