[Is there a U.S. Constitutional right to informational privacy? Our privacy expert, Jesse Jauregui, shares his thoughts on the U.S. Supreme Court's recent oral argument in the NASA v. Nelson case, a lawsuit that looks into the nature of a U.S. privacy right, and challenges how much and what type of personal information the government can obtain during background or security checks. The Ninth Circuit determined that JPL was too obtrusive when it asked open-ended questions about whether longtime JPL employees had done anything that might reflect negatively on their ability to continue performing their jobs. Will the Supremes see it the same way? Ed.]

How might Employee privacy rights be impacted by this case?

There is a good possibility that the U.S. Supreme Court will issue a narrow ruling no matter what the ultimate decision is. If the Supreme Court upholds the Ninth Circuit decision, government contract employees will enjoy a greater scope of informational privacy with respect to inquiries such as past drug and alcohol counseling and/or treatment for drug abuse. Government contract employees may also receive greater protection from more open ended inquiries which do not strictly relate to determining their suitability for employment. If the Court reverses the Ninth Circuit decision, government employers will be able to continue to use their standard background check processes (including form SF 85 and Form 42) for employees that are classified as "low risk" employees.

Tuesday's oral argument (see here for a transcript) pointed to a divided panel, although there may be greater sympathy for the government's position in that NASA is asking the court to rule narrowly and to confine its decision to the ability of NASA to use its established background check process. This process includes questions about drug use and treatment and open-ended questions regarding the general fitness of persons to serve as government employees. The court expressed some skepticism toward the respondent's position that the government should more narrowly tailor its open-ended questions, pointing out the practical difficulties in taking a different approach.

One practical complication in the Court's deliberation is the absence of Justice Kagan, who has recused herself from hearing the case (she was involved in the petition as Solicitor General). Without Justice Kagan, the court may end up in a 4 - 4 split. However, that potential result may also create a dynamic on the court to accommodate not only the views of Justice Kennedy, who has been the swing vote on many prior decisions, but on a member of the court that is traditionally on the center/left and who can be persuaded to form a majority.

It bears noting that the case involves government contract employees. If the court limits its ruling to government employers, the decision may not have the far reaching impact some have predicted. The respondent has emphasized that this case involves longstanding employees of JPL and not first time applicants who presumably would enjoy less protection from background inquiries. In addition, the respondents have also emphasized that the claimants are classified as "low risk" employees. While these assertions may at first blush appear to be favorable facts for the respondents, they may actually serve to narrow the decision to just that group of employees and thus the court may avoid making any more broad pronouncement on the constitutional right to informational privacy of private sector employees. The court had the opportunity last term to address employee privacy rights and make a broad ruling ( See City of Ontario v Quon) but instead issued a decision more narrow than many anticipated. The NASA case may continue that direction, with the Court potentially reversing the broad expansion of informational privacy rights contained in the Ninth Circuit's decision, but limiting the government's scope of inquiry in "low risk" employee situations. What is very likely however is that the Court will reemphasize the importance of protecting against the dissemination of such information and reaffirm the right to informational privacy in that regard.

How can employers ensure their current employee privacy policies are sufficient?

Every employment situation is different. Any review and analysis has to begin with the basic distinction between government employers and private sector employers and with the type of employee you are applying your policies to. Is this a job applicant as opposed to a current employee? Is this a contract employee as opposed to a direct employee? Are the employees government contract employees, and if so what is their security classification? The Court will likely give greater deference to government background check inquiries for higher security classification risks -- i.e. it will remain permissible to subject "high risk" employees to a greater scope of inquiry.

The safer practice for employers is to continue to abide by the current myriad of state and federal statutes which prohibit inquiry into various areas, unless there is a compelling business reason to do so. Employers should check with legal counsel before revising and/or implementing any changes.

What policies or guidelines should employers enact to ensure background checks do not gather information that is off limits?

Employers should adopt a common sense approach by determining what information they really need for each classification of employee. If the information is not necessary to make an employment decision, the employer should refrain from collecting such information in the first place. Employers are still under the duty to avoid making hiring decisions on impermissible grounds, such as relying on impermissible criteria when considering making a hiring decision. By collecting such information, the employer opens itself up to potential liability on other fronts besides a violation of privacy rights. With respect to specific guidelines, every state has its own prohibitions (for example see California Government Code § 12940(d)). The basic unacceptable inquiries for private employers will likely remain. Thus, for example, employers should still avoid questions about age, ethnic background, marital status, sexual orientation and general health, unless it is job related.