• Supreme Court Rules Background Checks on Government Contractors Do Not Violate the Constitution
  • February 3, 2011 | Authors: Joseph J. Lazzarotti; Mickey Silberman
  • Law Firms: Jackson Lewis LLP - White Plains Office ; Jackson Lewis LLP - Denver Office
  • 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.

    Lower Court Decisions
    The plaintiffs brought suit in federal court for a preliminary injunction, claiming that the background checks violated their constitutional right to informational privacy.  The district court denied the preliminary injunction, but the Ninth Circuit Court of Appeals reversed.  The appellate court held that portions of the background checks employed by JPL, which it said were not narrowly tailored to meet the government’s interests in verifying the identities of government contractors and promoting JPL’s security, were likely unconstitutional as they furthered no legitimate governmental interest. 

    Supreme Court Decision
    The Supreme Court reversed the Ninth Circuit’s decision. Starting with an assumption that there is a constitutional right to informational privacy, the Court reasoned that since 1871, the President has had authority to gauge a prospective employee’s fitness for the civil service.  Furthermore, background checks similar to those involved in NASA v. Nelson became mandatory for candidates for civil-service in 1953.  Writing for the Court, Justice Samuel Alito said, “[H]istory shows that the Government has an interest in conducting basic background checks in order to ensure the security of its facilities and to employ a competent, reliable workforce to carry out the people’s business.  The interest is not diminished by the fact that respondents are contract employees.” The Obama Administration also had argued the NASA background investigations were reasonable in light of the fact that such inquiries were virtually identical to those conducted by private employers.

    To allay concerns of unlawful invasion of privacy, and in support of the Court’s conclusion that the questions in the background check were reasonable, the Court noted that all information collected in connection with these background checks would be subject to non-disclosure pursuant to the Privacy Act.

    This decision is a reminder to all employers that the federal government possesses broad rights to engage in extensive background investigations in connection with procuring the services of contract employees.  The decision gives federal government contractors greater assurance that conducting background checks of their applicants and employees will not result in violations of the federal Constitution. However, the same may not be true for government contractors at the state level. At a minimum, public and private employers should evaluate their background checks to ensure the reasonableness of the inquiries being made, and implement safeguards to maintain the privacy and security of the information obtained in the process.