Privacy & Cybersecurity Law Blog

On January 19, 2011, the United States Supreme Court issued a unanimous ruling in National Aeronautics and Space Administration v. Nelson, finding that questions contained in background checks NASA conducted on independent contractors are reasonable, employment-related inquiries that further the government’s interests in managing its internal operations.  Stating that “[t]he challenged portions of the forms consist of reasonable inquiries in an employment background check,” the Court reversed a Ninth Circuit decision that the questions NASA asked of the contractors invaded their privacy.

The background check questions at issue dealt with drug use, treatment and counseling, and also included open-ended questions directed to the employees’ designated references, asking about the employee’s “honesty or trustworthiness” and requesting “adverse information” concerning a variety of matters.  The 28 scientists, engineers and other workers – longtime NASA contract employees – who brought the case had been classified as low risk and refused to submit to the background checks.  The government justified the screening measures on national security grounds, and described them as standard for millions of private employers.

The Supreme Court declined to decide whether the background check questions implicated a privacy interest of constitutional significance.  Writing for the court, Justice Alito stated that such a privacy interest, whatever its scope, did not prevent the government from asking reasonable questions in an employment background investigation.  The Court held that the questions were reasonable, in light of the government’s role “as proprietor” and manager of its internal affairs, to ensure the security of its facilities and employ a competent, reliable workforce, and that questions about drug use and treatment are legitimate employment-related inquiries.  Similarly, the open-ended questions to the employee’s references were found to be appropriate tools for separating strong candidates from weak ones.  The Court noted that the reasonableness of these questions is reflected by their pervasiveness in the public and private sectors.

Justices Scalia and Thomas each filed concurring opinions.  Justice Kagan recused herself because of her previous involvement with the case as Solicitor General.