National Aeronautics & Space Administration v. Nelson

2011-01-19

Headline: Court upholds federal employment background checks, allowing questions about recent illegal-drug treatment and open-ended reference queries while relying on Privacy Act protections to limit disclosure.

Holding: Assuming a constitutional informational-privacy interest, the Court held that the Government’s SF-85 and Form 42 background-check questions about recent drug treatment and open-ended references do not violate that right because employer interests and Privacy Act safeguards suffice.

Real World Impact:

Allows federal agencies to require standard background checks of contractor employees.
Permits questions about recent illegal-drug treatment as part of suitability screening.
Reinforces that the Privacy Act limits public disclosure of background-check records.

Topics: background checks, privacy rights, government contractors, employment screening

Summary

Background

A group of 28 contract employees who work at a Government-run lab (the Jet Propulsion Laboratory operated for NASA) challenged parts of a new, uniform background check. The check used a standard employee form that asks about illegal drug use and any treatment in the past year, and a short reference form that asks former employers or contacts for open-ended information about honesty, law violations, substance abuse, and conduct. The employees sued saying those questions invade an informational privacy interest, and a federal appeals court had blocked the questions pending appeal.

Reasoning

The Court framed the central question as whether these specific employment questions violate a claimed constitutional interest in avoiding disclosure of personal matters. The Justices assumed — without deciding the broader constitutional issue — that such a privacy interest might exist, but held the challenged questions were reasonable in context. The Court emphasized the Government’s role as an employer managing internal operations, the long history and utility of routine background checks, the limited and job-related nature of the drug-treatment follow-up, and the short, common reference form. The opinion also relied on the Privacy Act’s statutory limits on public disclosure of background records.

Real world impact

The decision lets federal agencies continue to require these background forms for contractors who need long-term access to federal facilities, including many NASA contract workers. It affirms that asking about recent drug treatment and sending brief open-ended reference queries are permissible when records are protected from public release. The Court reversed the appeals court and sent the case back for further proceedings.

Dissents or concurrances

Two Justices wrote separately to say more: Justices Scalia and Thomas agreed with the outcome but argued there is no constitutional right to informational privacy at all, criticizing the majority for assuming such a right instead of deciding the issue.