Employment background checks can be tricky things. The information sought and how the investigation is conducted can cause legal problems. Even interviewing an applicant must be handled with care, since there are specific questions that should be avoided, such as those concerning marital and parental status, childcare arrangements and disabilities.
Recently in the news there has been discussion of a lawsuit brought against NASA by a group of individuals it employs, challenging newly-required background check procedures. Nelson v. NASA, No. 07-56424 (9th Cir. Jan. 11, 2008)
These scientists, engineers, and administrative support personnel believed the investigations were unlawful, claiming that NASA lacked authority to implement them and was invading their personal privacy.
After unsuccessfully seeking an injunction in federal district court, they ultimately prevailed when the Ninth Circuit U.S. Court of Appeals reversed, ordering the district court to grant an injunction prohibiting implementation of the new procedures.
The employees who were threatened with losing their jobs if they did not comply with NASA’s employment background check will now be able to continue to work for the agency.
Facts
The employees were designated by the government as “low risk,” because they were not working with classified material.
The investigations covered everything from their finances to their sex lives. If the employees did not agree, they stood to lose their jobs.
Specifically, the background check probed their “academic, residential, achievement, performance, attendance, disciplinary, employment history, and criminal history record.”
It also included questioning their personal references, past employers, and landlords as to “any reason to question [their] honesty or trustworthiness,” and “any adverse information about [their] employment, residence, or activities,” concerning “violations of law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.”
Administrative Procedure Act
The employees argued that the government violated the Administrative Procedure Act (APA) “by imposing background investigations . . . without any basis in executive order or statute.”
The government argued that the new procedures were authorized under three different laws. As to each, the Ninth Circuit disagreed.
Notably, although “the Space Act authorizes the NASA Administrator to ‘establish such security requirements, restrictions, and safeguards as he deems necessary in the interest of the national security,’ ” the Ninth Circuit held national security was not implicated, due to the government’s own classification of the employees as “low risk.”
Informational Privacy
Also ruling against NASA on this claim, the Ninth Circuit applied the following principles:
[T]he Constitution protects an “individual interest in avoiding disclosure of personal matters.” . . . This interest covers a wide range of personal matters, including sexual activity, . . . medical information, . . . and financial matters. . . .
If the government’s actions compel disclosure of private information, it “has the burden of showing that its use of the information would advance a legitimate state interest and that its actions are narrowly tailored to meet the legitimate interest.”
Under this standard, the Ninth Circuit ruled in favor of the employees, saying that the NASA employment background check clearly involved information “sufficiently private to implicate the right to informational privacy,” and that it was too open-ended and standardless to satisfy the “narrowly-tailored” requirement.
Fourth Amendment
The Ninth Circuit agreed with the district court that there was no violation of the Fourth Amendment right to be free from “unreasonable searches and seizures.”
The “questionnaires sent to third parties cannot be considered a ’search,’ because ‘the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to the government.”
And “the questions posed directly to the applicant . . . are also unlikely to be considered Fourth Amendment ’searches,’ because that Amendment has not generally been applied to direct questioning.”
Applicability to private sector
The employees in this case were able to raise — and prevail on — issues typically unavailable to non-governmental employees.
In the private sector, barring a duty to negotiate with a union, an employer is generally free to unilaterally impose stricter requirements; there is simply nothing analogous to the Administrative Procedure Act claim.
Likewise, the “informational privacy” doctrine applied by the court here is described as a Constitutional one, and thus not likely to create workplace privacy rights in the private sector.
Broader Significance
Despite the above limitations on the direct legal applicability to the private sector of the principles in the NASA case, the case is useful in reminding us of the importance of keeping background checks and interview questions relevant and focused.
Interview questions and third-party or Internet inquiries that delve into an employee’s personal life, such as sexual orientation, promiscuity, or personal finances, involve private matters not likely to cause problems in a professional setting and should, therefore, be avoided.
The mere act of raising such issues, while not necessarily unlawful in and of itself, may become incriminating evidence that would support a whole variety of discrimination claims.
Photo credit: Scott Beale / Laughing Squid via flickr
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Wow. That really does seem highly intrusive. Whilst some background checks are obviously vital for some jobs, it makes you really question the motives of an employer that would delve so deep into an employees life. People need to be aware of their rights to privacy.
[...] Hun’h? I thought it was called Simply Hired. 2. That’s entertainment 3. Background checks done by Space Cadets 4. Umm… dude, that’s a lady 5. How you feelin’? Hot, hot, hot… [...]
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Great post!
Underscores the importance of keeping the selection process job-related.
robert edward cenek
Cenek Report
http://www.cenekreport.com