Supreme Court will Decide Privacy Case

Posted by marykeating on July 12, 2010 under Workplace privacy | Be the First to Comment

The Supreme court has agreed to hear a case arising out of California, but which will surely affect employees in Maryland. In NASA v. Nelson, 28 lower level employees of the Jet Propulsion Laboratory, part of California Technical Institute, some with years of service, objected to NASA’s first-ever demand that they undergo background investigations that delved into personal information. The employees objected in part because they were not involved in classified or restricted projects. Their employer, CalTech, had contracts with NASA to do robotics research. NASA’s decision to require the “National Agency Check with Inquiries” meant that the employees would be probed about such topics as the employee’s use of illegal drugs, sexual practices including homosexuality, adultery, and cohabitation, and mental, emotional, psychological and psychiatric issues. The background check would seek information from references, employers and landlords, about the above, as well as “general behavior and conduct.” The employees contended that their constitutional right to privacy was infringed by the use of this background check, given the non-sensitive nature of their work. If they refused to cooperate, they would lose their jobs.

After losing in the trial court, the employees appealed to the Ninth Circuit, which granted their request for an injunction against the background checks, pending a trial on the issues. In the meantime, though, the Supreme Court agreed to hear the case. Because the case has not been fully developed, the Supreme Court’s acceptance of review may mean that it’s interested in drawing a bright line for use of government background checks on non-government employees.

As a result of the proximity of Washington, D.C., as well as the Maryland presence of the National Security Agency, the Goddard Space Center, the Social Security Administration and the Centers for Medicare and Medicaid Services, many academic and private employers have contracts with the government. The federal government often uses its contracting power to effect broad changes. Affirmative action was instituted as a presidential executive order.