The Supreme Court has decided to weigh in on an on-going fight between NASA’s Jet Propulsion Laboratories contractors (NASA vs. Nelson) that seems destined to set precedent. At issue is whether NASA can subject their contractors to the same background screening standards reserved for their employees, including in this case inquiries into their medical records, sex lives and interviews with family and friends.
Originally, a federal judge rejected a motion to block NASA from carrying out these background checks. However, an appellate court said that NASA should not be able to move forward because the checks violated the contractors constitutional rights.
In an article recently published by Human Resource Executive Online, Seyfarth Shaw attorney, Pam Devata sets the stage for what promises to be an important case for employers engaged in employment background screening.
What the high court ultimately decides could affect how the federal government investigates the backgrounds of all current and future employees. It could also easily serve as precedent for the private sector as well, says Pamela Devata, partner in the labor and employment practice group of Chicago-based Seyfarth Shaw and a former member of the National Association of Professional Background Screeners.
In addition to deciding whether the laboratory workers’ rights to privacy were violated by the checks, one of the issues the court may consider is whether the background questions asked of federal contractors must be specifically related to the job. Currently, there is no federal law saying information secured from a background screener must relate to the specific job a federal contractor is applying for or carrying out.
“If the Supreme Court justices come out and say, ‘When you’re doing a background check for a federal contractor, the check must relate to the job specifically,’ that could even go beyond the jurisdiction of federal contractors and have immediate bearing in private-sector cases,” Devata says. “It would be an easy step to take. It’s just a little ‘hop-over.’ “
In the case of the plaintiffs, nearly all have worked at the Caltech facility for many years and are considered low-risk, i.e., none of them work on top-secret projects. In their lawsuit, they claim the investigations go well beyond what is appropriate for the work they do — including probes into medical records and interviews with friends and family about their finances and even their sex lives.
NASA, in its petition to the Supreme Court, says the forms “are the same ones that have long been used to conduct background checks for applicants for federal employment.”
“The ramifications of the [appeals court] decision are potentially dramatic,” the government and NASA state in the petition. “The decision prevents the routine background checks of many government-contract employees and it casts a constitutional cloud over the background-check process the government has used for federal and civil-service employees for over 50 years.”
The San Francisco-based appeals court’s ruling, however, says the forms NASA — via Caltech — required the laboratory workers to fill out sought “highly personal information using an open-ended technique including asking for ‘any adverse information which … may have a bearing on this person’s suitability for government employment.’
“There is nothing ‘narrowly tailored’ about such a broad inquisition,” the ruling states.
The Caltech case, says Devata, also raises “sort of a joint-employer issue … a very, very hot topic right now for background screeners.” Conflicts arise regularly in public and private sectors, she says, over contracts that specify one agency’s or organization’s jurisdiction over someone, but aren’t clear about the roles of other agencies or companies involved in the work being done.
“Some might claim a contract is clear,” she says, “but that doesn’t prevent other parties from arguing that they have jurisdiction. It’s a really interesting dilemma. When this case first came out, it was huge, hot news because of this.”
Though Caltech was dismissed from the case by the 9th Circuit District Court, a statement released through its media relations and online communications office says the school will “continue to follow the case closely.”
“We have and will abide by the orders issued by the courts,” the statement reads. Calls and e-mails to NASA seeking comment were not returned.
The arguments that will be brought before the Supreme Court in its upcoming term, beginning in October, will be closely watched, says Devata, particularly anything that addresses job-relatedness.
“The Equal Employment Opportunity Commission is all over this,” she says. “This is a huge and very hot topic right now among background screeners. The EEOC has already said there needs to be job-relatedness in background checks. So it wouldn’t surprise me if the Supreme Court says, ‘What’s asked of an employee or potential employee must be related to the job, so then, the question becomes, ‘What is job-related? What does job-related mean?’
“Realistically,” she says, “I can see the Supreme Court saying these are things that must be looked at and addressed by the federal legislators who are allowing these people to be contractors,” which would return the case to the lower federal courts to decide.
“Frankly, this is just another weight on the scale in terms of when you are evaluating what background checks to run and what information to gather, and how you should gather and what you should be gathering,” Devata says.
What she and her firm tell clients — many of them HR executives — is to “absolutely do background checks,” she says. “People do lie on their applications. In this economy, people want jobs, so people are willing to fabricate or lie … .
