Agencies can conduct background checks on contract employees, court rules

The Supreme Court ruled unanimously this week that the federal government is authorized to perform background checks on persons who work under federal contracts.

Twenty-eight contract employees at a NASA facility in California brought the case (NASA v. Nelson), claiming that two parts of a standard employment background investigation violated their privacy rights.

Related story:

OPM not doing enough to protect privacy on background checks, GAO says

The scientists and engineers specifically objected to a section of the questionnaire that asked them about treatment or counseling for recent illegal drug use and also opposed certain open-ended questions on a form sent to their references.

However, the court called the challenged questions “reasonable, employment-related inquiries that further the government’s interests in managing its internal operations.”

The ruling also suggested that the government will not treat contract employees differently than federal employees when it comes to checking their backgrounds.

“Respondents argue that, because they are contract employees and not civil servants, the government’s broad authority in managing its affairs should apply with diminished force,” the court wrote Jan. 19. “But the government’s interest as a ‘proprietor’ in managing its operations … does turn on such formalities.” 

The employees were not subject to government background checks at the time they were hired at the facility, but that changed following a 9/11 Commission recommendation that prompted the president to order uniform identification standards for federal and contract employees.

The contract employees at the NASA facility brought the suit two months before the October 2007 deadline to submit the newly ordered background checks.

The U.S. Court of Appeals for the 9th Circuit granted the employees an injunction, deciding that the questions about drug treatment and counseling furthered “no legitimate interest” and were thus likely to be held unconstitutional.

The lower court also ruled that the open-ended questions were not narrowly tailored to meet the government’s interest in verifying contractors’ identities and ensuring security of the government laboratory.

But, the Supreme Court noted that the government has been conducting basic employment background checks since the 1950s and added that private sector employers also conduct such checks.

“Reasonable investigations of applicants and employees aid the government in ensuring the security of its facilities and employing a competent, reliable workforce,” the high court stated.