The U.S. Supreme Court has ruled unanimously that the federal government may conduct wide-ranging background checks of workers employed by government contractors.  NASA v. Nelson, No. 09-530 (Jan. 19, 2011).

The Court ruled that when conducting background checks, the federal government need not show that certain questions are “necessary” or the least restrictive means for furthering its intent. Drawing on the widespread use of background checks in the public and private sectors, the government’s role as a “proprietor” as opposed to a regulator, the uncertainty of informational privacy as a constitutional right, and the protections for background check findings under the Privacy Act, the questions in the background check simply have to be reasonable to serve the government’s interests, the Court ruled.

The Facts

In NASA v. Nelson, the plaintiffs, 28 contract employees of the National Aeronautics Space Administration’s (NASA) Jet Propulsion Laboratory (JPL), which is operated by the California Institute of Technology (Cal Tech), were not subject to government background checks when they commenced their employment with the government.  However, as a result of policies recommended by the 9/11 Commission in 2004, President George W. Bush ordered the adoption of uniform identification standards for both federal civil servants and contract employees.  The Department of Commerce in turn implemented this order by directing that contract employees possessing long-term access to federal facilities undergo a standard background check.  Thereafter, NASA amended its contract with Cal Tech to conform to the new requirement and JPL subsequently announced that employees who did not complete the government-mandated background checks would be denied admission to JPL and would be subject to termination by Cal Tech.

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Jackson Lewis