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Supreme Court Upholds Employee Background Checks

In a unanimous decision, the Supreme Court reversed and remanded a decision enjoining contract employee background checks because the checks would not violate a constitutional right to informational privacy. Contractor employees at the Jet Propulsion Laboratory challenged background investigation requests for information regarding drug abuse treatment and counseling and requests in personal reference forms for "any adverse" employee information. The Court of Appeals for the Ninth Circuit granted a preliminary injunction, holding the requirement to disclose drug treatment or counseling and the reference form's "open-ended and highly private" questions likely violated the employees' informational privacy rights (52 CCF 78,957).

Reasonable Investigation

Justice Alito's opinion assumed the challenged inquiries implicated "a privacy interest of constitutional significance" but concluded that interest did not prevent the government from asking the questions in an investigation that was subject to safeguards against public disclosure. The Court recognized the government's interest in conducting reasonable investigations to ensure the security of its facilities and in employing a competent, reliable workforce. The fact the employees were employed by the contractor operating the JPL did not diminish the government's interest, because the government's civil service and contractor workforces performed "functionally equivalent duties." The Court also found the challenged questions were similar to background checks used by millions of private employers and were reasonable, employment-related inquiries that furthered the government's interests in managing its internal operations and multibillion dollar investment in the JPL. In addition, the Privacy Act (5 USC 552a) provided substantial protections against unwarranted public disclosure. In a concurring opinion joined by Justice Thomas, Justices Scalia disagreed with the assumption there could be a constitutional right to informational privacy. (NASA, et al. v. Nelson, et al., SCt, 55 CCF 79,518)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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