On January 19, 2011, the U.S. Supreme Court held that the federal government has broad latitude to conduct background checks on contractors who work at government facilities. Assuming, without deciding, that two parts of a standard government employment background investigation implicated a constitutional privacy interest, the Court held that the government is permitted to ask reasonable employment-related questions that further the government’s interests in managing its internal operations, particularly where the results of such investigations are adequately protected from public disclosure.
In NASA v. Nelson, government contractors at NASA’s Jet Propulsion Laboratory (“JPL”) challenged the constitutionality of certain questions asked on the government’s Standard Form 85 and Form 42. Notably, these JPL contractors were not subject to Government background checks when they were hired, but became subject to them when a shift in federal policy mandated that all contract employees complete a standard background check by October 2007 or risk being denied access to federal facilities. The JPL contractors specifically objected to SF-85’s question about “treatment or counseling received” in connection with any recent illegal drug use and open-ended questions on Form 42 which asked the contractors’ references whether they had any reason to question the JPL contractors’ honesty or trustworthiness or had “adverse information” concerning a variety of other factors.
Writing for the Court, Justice Alito explained the long history and widespread use of employment background investigations in both public and private employment, including those which became mandatory for all government employees in 1953. Justice Alito also explained that such investigations “aid the Government in ensuring the security of its facilities and in employing a competent, reliable workforce.” Recognizing that the Government’s ability to manage its operations should not turn on formalities that separate government employees and government contractors, the Court held that “whatever the scope of [the JPL contractors’ constitutional privacy] interest, it does not prevent the Government from asking reasonable questions of the sort included on SF-85 and Form 42 in an employment background investigation that is subject to the Privacy Act’s safeguards against public disclosure.” To that end, the Court expressly rejected the contractors’ argument that the Government had a responsibility to demonstrate that its job-related questions were “necessary” or the least restrictive means of furthering its interests.
While the Court’s decision addresses only government background investigations, it underscores the legitimacy of background checks conducted by all employers seeking to ensure that their offices are staffed “by reliable, law-abiding persons who will efficiently and effectively discharge their duties.” Moreover, the decision suggests that even if prospective (or current) employees have a reasonable expectation of privacy with respect to their personal information, employers can avoid liability for privacy-related claims where there is a legitimate justification for an investigation and the investigation is conducted in a reasonable manner, which includes having safeguards in place to protect against disclosure of the results to the public.