The upcoming U.S. Supreme Court term features a number of cases with major implications for employees and employment-law practitioners. Part I of this series addressed Kasten v. Saint-Gobain Performance Plastics Corp., a case that will decide whether the verbal complaints that untold numbers of employees make to their supervisors every day in the workplace will have legal protection under the Fair Labor Standards Act — or whether instead the FLSA requires the filing of a formal written complaint. Part II discussed Staub v. Proctor Hospital, a case that should resolve the deep circuit split on the question of when an employer may be held liable based on the unlawful intent of officials who caused or influenced — but did not make — an adverse employment decision. This week, we discuss National Aeronautics and Space Administration v. Nelson, a case that will address the scope of the constitutional right to informational privacy in the employment context. The Court’s decision on this case could have wide ramifications for this privacy right. Oral arguments in the case took place this morning.

In National Aeronautics, 28 scientists, engineers and administrative support personnel at the Jet Propulsion Laboratory (JPL), a research laboratory run jointly by the National Aeronautics and Space Administration (NASA) and the California Institute of Technology (Caltech), sued to challenge NASA’s recently adopted requirement that “low-risk” contract employees submit to in-depth background investigations. The suit was on the individual plaintiffs’ behalf and on behalf of a putative class of 9,000 JPL employees who held nonsensitive or “low-risk” positions. The plaintiffs are long-time employees of Caltech, many of whom had worked at JPL for more than 20 years. NASA had classified all the plaintiffs as low-risk employees, and no class member had access to any classified information — to the contrary, the plaintiffs’ work was in the public domain and their results were publicly published.

Before Jan. 29, 2007, NASA had not required federal background checks to be conducted on these “low-risk” contract employees. On that date, however, NASA unilaterally modified its contract with Caltech to include a requirement that all JPL employees undergo a federal background investigation before the employee could obtain the identification badge needed to access JPL facilities. Although Caltech initially protested the unilateral change to its contract with NASA, when the government insisted on the background investigations, Caltech adopted a policy providing that all JPL employees who did not successfully complete the process would be terminated.

As part of the background investigation, JPL employees were required to fill out a standard questionnaire, known as Standard Form 85, that includes inquiries about drug abuse counseling and therapy. SF 85 also requires the employee to sign an “Authorization for Release of Information,” which results in each of an employee’s references, employers and landlords being sent an “Investigative Request for Personal Information” form (Form 42). Form 42 asks the recipient broad, open-ended questions about the employee concerning “violations of law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct” or “other matters.”

Concerned JPL employees asked what criteria NASA would use to determine their “suitability” for access to NASA facilities and, therefore, for their continued employment. In response, a “suitability matrix” was posted on JPL’s Web site that listed various factors that included among others “carnal knowledge,” “homosexuality” “cohabitation, adultery,” “illegitimate children” and “mental, emotional, or psychiatric issues.”

In August 2007, the plaintiffs filed suit alleging, among other things, that NASA’s newly imposed background investigations violated their constitutional right to informational privacy, and, in September 2007, they moved for a preliminary injunction. The U.S. District Court for the Central District of California denied the employees’ motion, holding that SF 85 implicated the right to informational privacy but was narrowly tailored sufficiently to further the government’s legitimate security interest. The employees appealed the decision to the U.S. Court of Appeals for the 9th Circuit, first seeking a temporary injunction pending a merits determination of the denial of the preliminary injunction, which was granted, and then on the merits of the denial.

On the appeal of the merits determination, the 9th Circuit reversed the district court’s decision, holding that the employees had demonstrated serious questions as to their informational-privacy claim and that the balance of hardships tipped sharply in their favor. Citing prior circuit case law, the 9th Circuit reiterated that the Constitution protects an “individual interest in avoiding disclosure of personal matters,” which covers a wide range of personal matters, including sexual activity, medical information and financial matters. The court found that the requirement in the SF 85 that the employee disclose “any treatment or counseling received” for their drug problems fell squarely within the domain protected by the constitutional right to informational privacy and that the government had failed to suggest any legitimate interest in requiring the disclosure of such information, resulting in there being a serious question as to whether SF 85 violated the employees’ constitutional right to informational privacy.

The 9th Circuit also found that Form 42 raised serious informational-privacy questions. The court recognized that the government had cited several legitimate reasons for investigating its contractors, including verifying its contractors’ identities and ensuring the security of the JPL facility so as not to jeopardize the costly investments housed within it. However, the court held that the government had failed to demonstrate that Form 42′s “broad, open-ended questions” were “narrowly tailored to meet these legitimate interests.” The defendants sought an en banc hearing but failed to get a majority vote of the nonrecused active judges.

NASA’s petition for certiorari to the Supreme Court asserted that the 9th Circuit erred in finding that the challenged inquiries affected the JPL employees’ constitutional right to informational privacy and that, even if they did, the challenged inquires were sufficiently tailored to the important government interest underlying them. Citing Whalen v. Roe, 429 U.S. 589 (1977), and Nixon v. Administrator of General Services, 433 U.S. 425 (1977), NASA primarily argued that the 9th Circuit’s decision deviated from Supreme Court precedent by, first, not recognizing that the government’s collection of information presented a less serious concern than the dissemination of information to the public and, second, failing to adequately weigh the fact that the Privacy Act sufficiently prevented public dissemination of information collected during background checks to avoid infringement on the employees’ constitutional right.

NASA further argued that the 9th Circuit had failed to make the important distinction that in this case the government was acting not as a regulator, but as an employer, which mitigated the rights of the employees. NASA also said that, because the inquiries sought only job-related information and since the Privacy Act prohibits the agency from keeping any nonjob-related information that was unearthed in the investigation, the inquiries were sufficiently tailored to pass constitutional muster. Finally, NASA asserts that the 9th Circuit’s opinion created a circuit split between it and the D.C. and 5th circuits. These courts previously had held, in AFGE v. HUD, 118 F.3d 786 (D.C. Cir. 1997), and NTEU v. U.S. Department of the Treasury, 25 F.3d 237 (5th Cir. 1994), that similar inquiries did not violate the constitutional right to informational privacy.

In their opposition brief, in addition to making arguments related to the procedural posture of the case, the JPL employees countered that, under Supreme Court precedent, “the Constitution protects a right to informational privacy” and, because the government never offered a legitimate interest in asking about drug treatment or counseling and refused to explain the extent to which it intends to delve into unquestionably private matters, the 9th Circuit correctly held that there are serious questions as to whether the inquires in question violate their constitutional rights. They also argued that, contrary to NASA’s assertions, there was evidence that Form 42 resulted in the collection and consideration of information on highly private matters, many of which were sexual. Finally, the employees argued that the protections in the Privacy Act were insufficient to limit their privacy rights, given the evidence that NASA planned to disseminate to Caltech the information gained in the background checks.

Although the certiorari questions are narrowly posed in this case, with the government specifically stating in its petition that there was no need to determine the scope of the constitutional right, as we all know the high court alone chooses how narrow or broadly its decisions will be and the Court can decide, if it so chooses, to take the opportunity to clarify that no constitutional right to informational privacy exists or, at least, to substantially limit that right.

Although federal contract employees stand to be the immediate victims, should the Supreme Court adopt the position argued in the government’s petition, the decision could affect not only government contract employees, but also many federal, state and local employees. The constitutional right to informational privacy has for decades served as a backstop in the employment context to invasive and unnecessary government probes of employees. For example, in Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 2000), the plaintiff’s employment as a police officer was conditioned on her answering questions regarding her sexual association and a potential past abortion. The court held that, in the absence of any showing that private, off-duty, personal activities, such as one’s sexual activities, have an impact upon an applicant’s on-the-job performance, reliance on such information was unlawful. If the Supreme Court limits or extinguishes this constitutional right to informational privacy, many employees could be left with no protections in this area.

Although it is vital that the government be able to adequately protect national security by being able to conduct background checks of civil servants and government contract employees who are in sensitive or public-trust positions, when there is not a legitimate government interest in collecting and disseminating that information, there needs to be a constitutional protection preventing employees from needless and invasive government inquiries into their private matters.

Debra S. Katz is a partner, and Alexis H. Rickher is an associate, at Washington’s Katz, Marshall & Banks, which specializes in employment law, sexual harassment and whistleblower claims.