Labor & Employment Law

NASA v Nelson brief

The government has filed its opening brief [here] on the merits in NASA v Nelson, pending at the US Supreme Court.

The issue is whether NASA's background investigations violate federal contract employee?s constitutional right to informational privacy.

Questions presented:

Respondents are contract employees working at the Jet Propulsion Laboratory, a multi-billion-dollar federal research facility. Like all federal contract employees requiring long-term access to federally controlled facilities and information systems, they are required to undergo background checks. Respondents object to these background checks because, in their view, the government?s use of standard forms to collect employment-related information about them would violate their constitutional right to informational privacy. The court of appeals agreed with respect to two inquiries on the standard background-check forms. The questions presented are:

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.

NASA's arguments:

The government?s collection of information through SF-85 and Form 42 for employment-related purposes is constitutional

A. This Court has made clear that constitutional privacy concerns are not triggered merely because the government collects information about an individual

B. This case involves only the routine collection of employment-related information by the government acting in its capacity as an employer and proprietor

1. This case concerns the government?s collection of information, subject to the Privacy Act, not disclosure to the public

2. Any privacy interests implicated in this case are further limited because SF-85 and Form 42 seek information only for employment-related purposes

C. The use of SF-85 and Form 42 to conduct background checks of contract employees is constitutional

1. The government may ask contract employees who have used illegal drugs in the previous year whether they have sought treatment or counseling

2. The government may send Form 42 to a contract employee?s designated references and contacts

D. The court of appeals? analysis ignored the Whalen and Nixon framework

Respondents' brief is due July 19, 2010.

Full post as published by Ross' Employment Law Blog on May 23, 2010 (boomark / email).