In a recent decision, the United States Supreme Court upheld the National Aeronautics and Space Administration’s (“NASA”‘) policy of conducting background checks of both its own employees and civilian employees of its government contractors, including questions about the individuals’ use of illegal drugs. California Institute of Technology (“Cal Tech”) hired the plaintiffs in this action before the president ordered the adoption of uniform identification standards for both federal civil servants and contractor employees. After the new policy requiring background checks was enacted, Cal Tech, which operated NASA’s Jet Propulsion Laboratory (“JPL”) through a contract with NASA, required every employee at the JPL to complete the background check process. CalTech would deny employees who failed to complete the process access to the JPL and fire them. The plaintiffs claimed that the policy violated their constitutional right to informational privacy because the background check sought information about their use of illegal drugs and other personal information. In an opinion authored by Justice Alito, the U.S. Supreme Court assumed without deciding that the Constitution protects a privacy right against the disclosure of personal matters, but that NASA’s policy did not violate such a right. The government’s interests as employer and proprietor of the JPL in managing its internal operations, combined with existing protections against disclosure of the information, satisfy any interests in avoiding the disclosure of private information. The Court noted that, as a practical matter, the government must have much more latitude in conducting background checks of employees, rather than on citizens at large. Because the challenged portions of the background check forms were “reasonable, employment-related inquiries that further the government’s interests in managing its internal operations” and were also “subject to substantial protections against disclosure to the public,” the Court held that “the government’s inquiries do not violate a constitutional right to informational privacy.”

TIP: Employers, particularly those with government contracts, should consider what obligations they may have to conduct background checks on employees. Additionally, employers must implement proper procedures to protect information obtained through background checks.