Wednesday, March 31, 2010

NASA blasts off into employment law case

The United States Supreme Court recently granted cert a public employee privacy case which will consider whether NASA, a federal agency, violated the informational privacy rights of employees, who worked in non-sensitive contract jobs, by asking certain invasive questions during background investigations.

The Government is asking the Court to overturn the 9th Circuit decision which directed a district court to issue a preliminary injunction on behalf of contract workers at NASA's Jet Propulsion Laboratory (JPL) operated by the California Institute of Technology under a contract with the federal government. The Government maintains that the privacy expectations of the employees are minimal because they have are in the government employment context, these are standard background forms that the government is using, and the Privacy Act of 1974 protects this information from disclosure to the public.

The case was originally brought in 2007 by twenty-eight scientists and engineers employed as contractors at JPL on behalf of a potential class of 9,000 employees that NASA classifies as low-risk employees. Questions included in the background check ask about “any treatment or counseling” for illegal drug use, and forms issued to references seek “adverse information” about the workers' employment, residence, and activities regarding violations of the law, financial integrity, abuse of alcohol or drugs, mental or emotional stability, general behavior, and “other matters.”

This will be an interesting case for a number of reasons. First, it does not squarely fit into either the public employee drug testing cases (Von Raab & Skinner), nor does it focuses on a public employee's privacy rights in their physical belongings (Ortega). Rather, it focuses on an area of public employment constitutional law that has received less attention: the informational privacy rights of these employees. The Court has "hinted" at a constitutional right to informational privacy in two cases in the 1970s and then "never said another word about it." Judge Kozinski is his dissent from denial of rehearing en banc (citing Whalen v. Roe, 429 U.S. 589 (1977), and Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977)).

Normally, because of the fact that the government is acting in its employer capacity, it would have more latitude to infringe on its employee's rights under the Fourth Amendment. This means that a balancing test is most appropriate. Such a test would balance the need of the employee for informational privacy against the needs of the government employer. In this case, it would appear that employees are seeking to protect confidential and potentially embarrassing personal information against the government's need to obtain information to protect and secure its federal facilities.

NASA v. Nelson, No. 09-530