Just how far can an employer, the federal government in this case, go in collecting personal information as part of employment background checks before violating a person’s privacy rights? It’s a question the Supreme Court tackled in its first day of the new term and one that has the potential to reach broadly into our understanding of personal privacy rights.
The case, National Aeronautics and Space Administration v. Nelson, was originally brought by 28 long-term, low-risk contract employees at a NASA research facility in California. They challenged certain questions as so intrusive that they violated their rights to informational privacy. The 9th Circuit Court of Appeals agreed, issuing a temporary injunction, barring the government from asking certain kinds of questions and seeking certain kinds of information.
Among the questions challenged was one that involved illegal drug use in the past year. The employees did not object to being asked whether they used, possessed, supplied or manufactured illegal drugs, but the did object to providing information about any treatment or counseling received. Another objectionable question was one that asked for any information that had any bearing on the person’s suitability for employment. These kinds of questions, the employees argued, had no connection to any legitimate governmental interest nor any connection to their job.
Given the fact that most employers conduct some sort of employment screening, the decision in this case could have far-reaching implications. For example, many employers routinely perform credit checks on potential employees. Would this practice remain acceptable? Many states have already found it to be objectionable and so have banned the practice. Just how relevant is a criminal history and what about potential medical issues? At what point is protecting personal information more important than allowing employers the ability to adequately screen out potentially bad employees?
Furthermore, the case assumes that a right to informational privacy exists. Does it? A constitutional right to privacy is among one of the most controversial areas of the law and one, given the makeup of the Court, that I don’t know is as secure as some would home.
And if the Court decides that there is in fact no constitutional right to informational privacy what, if any, impact does that finding have on our current understanding of privacy rights?
Lawyers for the parties argued their case on Tuesday but it will be some time before an order is issued. In the meantime, week one of the Supreme Court term and we are already looking at significant issues of constitutional jurisprudence. Looks like it will be quite a term this year.
photo courtesy of dbking via Flickr