Michael J. Davey, Esq. mdavey@eckellsparks.com 610.565.3700

Tuesday, January 25, 2011

U.S. Supreme Court - Government Employers May Ask "Reasonable Questions" in Employment Background Investigations

On January 19, 2011, in the case of NASA v. Nelson, et al., the U.S. Supreme Court held that governmental employers are permitted to ask "reasonable questions," during employee background investigation checks without running afoul of employees' constitutional privacy rights.

This case concerned an employee background check process employed by NASA, consisting of two questionnaire forms. The first asked whether an employee had "used, possessed, supplied, or manufactured illegal drugs in the last year," and if so, then required the employee to describe the details of any "treatment or counseling received." Employees were also required to sign a release authorizing the Government to obtain personal information about employees from schools and past employers. The second form then asked open-ended questions about whether NASA had "any reason to question," an employee's "honesty or trustworthiness," or whether an employee had "adverse information," concerning an employee's "violations of the law," "financial integrity," "abuse of alcohol and/or other drugs," "mental or emotional stability," "general behavior or conduct," and "other matters." If an employee checks "yes" to any of those categories, the form required a further written explanation.

Various NASA employees sued, claiming that NASA's subjecting them to this employment background check process violated their constitutional right to "informational privacy." The District Court refused the employees' request for a preliminary injunction, but the Ninth Circuit Court of Appeals reversed, holding that with respect to the first form, NASA's requirement that an employee disclose drug treatment and counseling furthered no legitimate government interest and was thus likely unconstitutional. With respect to the second form, the Ninth Circuit determined that the open-ended questions asked by NASA were not narrowly tailored to meet the government's interests in verifying the employees' identities, and thus, likely violated the employees' constitutional rights.

In granting certiorari, the U.S. Supreme Court had the opportunity, for the second time in two years, to address the available breadth of privacy rights that may, or may not, be held by individuals who are employed in the public sector. One year ago, the Supreme Court had a similar opportunity in City of Ontario v. Quon, 130 S. Ct. 2619 (2010), which concerned whether a SWAT officer had a reasonable expectation of privacy in the content of text messages he had sent over a city-issued pager. In Quon, however, the Supreme Court specifically avoided any issues concerning employee privacy rights under the Fourth Amendment, but instead opted to resolve the case by holding that any search of the officer's text messages conducted by the City was reasonable, and thus, could not be a violation of the Fourth Amendment. For a thorough analysis of this case, see my earlier post entitled "U.S. Supreme Court Side-Steps Questions of Employee Privacy in Electronic Communications," from June 18, 2010..

In Nelson, however, the Supreme Court took the same tack as it did in Quon and once again avoided discussion concerning the thorny issues involving the privacy rights of public employees in the workplace. Instead, the Court stated that "we will assume for present purposes that the Government's challenged inquiries implicate a privacy interest of constitutional significance." That being said, however, the Court then proceeded to overrule the decision of the Ninth Circuit, and held that "whatever the scope of this [privacy] interest, it does not prevent the Government from asking reasonable questions of the sort included on the [NASA forms] in an employment background investigation that is subject to the [federal] Privacy Act's safeguards against public disclosure."

In so holding, the Supreme Court reaffirmed the long-standing tenet that "the Government has a much freer hand in dealing with citizen employees than it does when it brings its sovereign power to bear on citizens at large." The Court also recognized that the types of questions being challenged in this case were "part of a standard employment background check of the sort used by millions of private employers," that "the Government itself has been conducting employment investigations since the earliest days of the Republic," and that "[s]tandard background investigations similar to those at issue here became mandatory for all candidates for the federal civil service in 1953." As such, the Court recognized that the federal government has an interest in performing background checks on its employees and that "[r]easonable investigations of applicants and employees aid the Government in ensuring the security of its facilities and in employing a competent, reliable work-force."

The Court rejected out of hand the employees' claims that the Government's broad authority in regulating and managing its affairs should not apply with as great a force to them, as they were "contract employees," not civil servants. The Court found this argument placed form over substance, holding that "the Government's interest as 'proprietor' in managing its operations . . . does not turn on such formalities," and noting that on the record before it, there was no relevant distinctions between the duties performed by NASA's civil servants and its contract employees.

Against this back-drop, the Court held that the questions asked by NASA on the two employment background check forms were "reasonable, employment-related inquiries that further the Government's interests in managing its internal operations." Specifically, the Court noted that the Government has a "good reason to ask employees about their recent illegal-drug use," namely, to ensure that it will have its "projects staffed by reliable, law-abiding persons who will efficiently and effectively discharge their duties." With this legitimate purpose, the Court determined that the form's follow-up questions concerning any treatment or counseling for illegal-drug use was also a reasonable method by which the Government could separate out those individuals who have taken steps to address and overcome their illegal drug problems, and use this as a mitigating factor in making employment decisions. In the Court's words, this "is a reasonable, and indeed humane, approach. . ."

The Supreme Court also rejected outright the employees' argument that the Government "when it requests job-related personal information in an employment background-check, has a constitutional burden to demonstrate that its questions are necessary or the least restrictive means of furthering its efforts."

The Court also held that the open-ended questions that so troubled the Ninth Circuit Court of Appeals, were in fact "reasonably aimed at identifying capable employees who will faithfully conduct the Government's business," and similar in type and scope to employment background questions frequently used by employers in the private sector.

Lastly, the Court recognized that any privacy interests held by the employees here were further protected by the fact that the NASA forms were governed by the federal Privacy Act, which allows the Government to maintain records about an employee "only to the extent the records are relevant and necessary to accomplish a purpose authorized by law," and requires "written consent before the Government may disclose records pertaining to any individual."

Therefore, in light of the Privacy Act's nondisclosure requirements, coupled with the fact that the questions posed on the two NASA forms "consist of reasonable inquiries in an employment background check," the Court held that NASA's background process did not violate any "constitutional right to informational privacy."

In a notable concurring opinion, Justice Scalia (joined by Justice Thomas), stated that he would have decided the case "on simpler grounds." Specifically, that "[a] federal constitutional right to 'informational privacy' does not exist." This concurrence may be a gloomy portent of how the Supreme Court may examine the issue of public-employee privacy rights in electronic communications when, and if, the Court ever decides to take it up.

You can read the full version of the Court's opinion here: http://www.supremecourt.gov/opinions/10pdf/09-530.pdf

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