In a case pitting individual privacy rights of citizens against national security concerns of a country, the U.S. Supreme Court unanimously overturned a ruling limiting government inquiries about contract workers at a National Aeronautics and Space Administration (NASA) laboratory and ruled the federal government can ask employees about their drug treatment, medical conditions, or other personal matters during background checks and that the questions did not violate the constitutional privacy rights of employees.

The case – NASA v. Nelson, 09-530 (January 19, 2011) – concerned 28 contract workers who challenged the extensive background checks required at a NASA jet propulsion laboratory in Pasadena, CA as overly intrusive. The Supreme Court ruling overturned a federal appeals court ruling that said the government went too far in asking contract workers questions about drug treatment and suitability for employment and gave the government broad latitude to ask personal questions during backgrounds checks of contractors at government facilities.

Federal employees have undergone standard background checks since 1953 and the government began background checks of contract employees in 2005 as part of the policies developed after the terrorist attacks of September 11, 2001. Supreme Court Justice Samuel Alito wrote for the court that: “The challenged portions of the forms consist of reasonable inquiries in an employment background check.”

However, Employment Screening Resources (ESR) would note that the Court did not announce broad rules or a test for interpreting what questions were permissible, and that according to some legal observers, future litigation is still possible. However, the Court did site several factors that made these inquiries permissible:

  • Citizen employees (and citizen contractors) of the government fall under the hand of the government more than citizens not working for the Government;
  • The questions are reasonable and sufficiently employment-related;
  • Private employers as well as the government have long used background checks;
  • Information gathered in background checks would be confidential due to the federal Privacy Act on dissemination of employee and contractor information.

A previous story on ESR News – ‘U.S. Supreme Court Ponders Question Whether Employment Background Checks by Government Ever Too Invasive’ – provides background on this Supreme Court case and asks at what point – if any – does a government background check violate the constitutional right to privacy of employees.

For more information about background checks, visit Employment Screening Resources (ESR) at

Founded in 1996 in the San Francisco area, Employment Screening Resources (ESR) wrote the book on background checks with ‘The Safe Hiring Manual’ by ESR founder and President Lester Rosen and is accredited by The National Association of Professional Background Screeners (NAPBS®) . To learn more about Employment Screening Resources, visit or contact Jared Callahan, ESR Director of Client Relations, at 415.898.0044 or [email protected].