Feb 212011
 February 21, 2011  Posted by  Court, Workplace

Bret Cohen writes:

On January 19, the Supreme Court decided NASA v. Nelson, a case brought by NASA contractors alleging that questions asked by the federal agency in a background check violated their constitutional right to information privacy — i.e., a constitutional privacy interest in the government “avoiding the disclosure of personal matters” recognized in a pair of 1977 cases, Whalen v. Roe and Nixon v. Administrator of General Services.  At issue were questions asking whether the contractors received “any treatment or counseling” regarding illegal drug use within the previous year (as a follow up to a question regarding whether they used, possessed, supplied, or manufactured illegal drugs within that year), and questions directed toward references for information bearing on “suitability for government employment or security clearance, ” including any “adverse information” about a contractor’s “honesty or trustworthiness,” “violations of the law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.”

In an 8-0 opinion (Justice Kagan recused herself), the Court held that even assuming the existence of a constitutional right to information privacy mentioned in Whalen and Nixon, such a right would not prevent NASA’s ability as an employer to ask “reasonable, employment-related inquiries” about the backgrounds of its employees that “further the Government’s interests in managing its internal operations,” commenting that the questions at issue were “of the sort used by millions of private employers.”  The Court noted that the federal Privacy Act, which restricts government disclosure of personal information, provided additional assurance that the information collected, though sensitive, would not be disclosed.

Read more on Hogan Lovells Chronicle of Data Protection.

Although NASA v. Nelson has been mentioned on this blog and its archives on a number of times, it seems timely to look at it again in light of a current case in which the Maryland Department of Corrections demands employee and applicant’s Facebook logins as part of their background checks. In reading about that case the other day, I found myself wondering whether the Supreme Court would view that demand as “reasonable,” too.

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