U.S. Supreme Court Ponders Question Whether Employment Background Checks by Government Ever Too Invasive

By Lester Rosen, ESR President & Thomas Ahearn, ESR News Blog

A Law Blog on the Wall Street Journal (WSJ) website asks if there are limits to what the government can ask during background checks for employees of defense contractors and at what point – if any – does a government background check into the drug use history of low-level employees violate the constitutional right to privacy of those employees.

The WSJ Law Blog cites an account from the LA Times in which the U.S. Supreme Court was called upon to ponder this interesting question during a “skeptical hearing” to the 28 Caltech scientists challenging the government’s use of background checks due to the fact that Caltech runs the Jet Propulsion Laboratory under a contract with NASA.

Although the Caltech scientists won earlier at the Ninth Circuit, which held that questions on background checks violated their constitutional right to privacy, the LA Times story indicated most Supreme Court justices were more inclined to uphold the background checks as they explored the limits to what the government should be allowed to ask.

While the Times reported some justices would not close the door to all claims of privacy, the acting U.S. solicitor general urged the justices to rule that the government could ask open-ended questions of its employees and contract workers during background checks. A transcript of the Supreme Court arguments can be found at http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-530.pdf .

However, Employment Screening Resources (ESR) believes it is important to keep in mind that the type of government security background check discussed in the WSJ Law Blog – and by the Supreme Court – is much more in-depth than what private sector employers perform during background checks of their employees.

In the private sector, background checks are done by private companies for private employers, and not the government. Private sector background checks are focused on those things that a person has done in their public lives, such as where they worked, what schools they attended, or public records concerning criminal matters.

For a summary of the more limited tools used in the private sector for background checks, visit the Employment Screening Resources (ESR) ‘Services’ page at http://www.ESRcheck.com/services/.