Labor & Employment Law

NASA v. Nelson: Employee background checks vs. privacy at the Supreme Court

On Tuesday the US Supreme Court will hear oral arguments in National Aeronautics and Space Administration [NASA] v. Nelson.

[Details and briefs]
[Detailed analysis from SCOTUSblog]

Nelson requested a preliminary injunction to prevent implementation of the employer's requirement for in-depth background investigations of "low risk" employees of federal contractors. The trial court denied the request for a preliminary injunction. The 9th Circuit reversed. The US Supreme Court granted certiorari to review the 9th Circuit judgment.

Given the open-ended and highly private questions authorized by the investigation which did not appear narrowly tailored to any legitimate government interest, the court 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.

Question Presented in the petition for certiorari:

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.

My view:

Expect the Supreme Court to reverse the 9th Circuit's judgment. This case is essentially a facial attack on NASA's policy, without a showing of tangible harm to the contract employees. In that posture, the Supreme Court will not want to support an injunction against NASA.

Many observers are expecting the Court to make important pronouncements about individual privacy in the face of an employer's background investigations. I expect this will not happen. Any possible harm to any individual is, at this point, pretty hypothetical.

Full post as published by Ross' Employment Law Blog on October 04, 2010 (boomark / email).