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Supreme Court Says Public Employers May Conduct Background Checks on Applicants

    Client Alerts
  • January 28, 2011

Private sector employers routinely conduct extensive criminal and financial background checks on applicants for employment. Public employers are subject to constitutional restrictions on invading employees' and applicants' privacy. Last week the U.S. Supreme Court rejected a challenge to applicant background searches as an invasion of such privacy rights.

In NASA v. Nelson, the plaintiffs were contract employees who became subject to background checks that asked questions about illegal drug use and possession. They contended that the check constituted a violation of constitutional rights to information privacy. The Ninth Circuit Court of Appeals rejected the plaintiff's arguments with respect to illegal drug use or possession, but upheld the challenge as to questions asking about drug treatment or counseling.

In a unanimous decision, the Supreme Court upheld NASA's entire background check process. The Court concluded that while public employees have constitutional privacy rights, government agencies have the right to make reasonable inquiries as part of a employment background investigation. When it acts as an employer, the government has broader rights to inquire about an applicant's past than would be the case in dealing with general citizens.

In this case, questions over drug treatment or counseling could act as mitigating factors against rejecting applicants who otherwise would be disqualified from employment due to past drug activity. Federal statutes already prohibit government agencies from publically disclosing information learned through these background searches.

While public employers' background search powers are not unlimited, this decision upholds the general authority to use searches equivalent to those conducted by private sector employers.