Question

Under new standards for all federal workers, contract employees with long-term access to federalfacilities were ordered to complete a standard background check—the National Agency Check withInquiries (NACI). Robert Nelson and other Jet Propulsion Laboratory (JPL) private contractemployees filed a suit in a federal district court against NASA, claiming that the NACI violated theirprivacy rights. The court denied the plaintiffs’ request to enjoin the NACI, but the U.S. Court ofAppeals for the Ninth Circuit reversed and issued the injunction. NASA appealed.The United States Supreme Court reversed and remanded. The government has long required andconducted employment investigations of applicants for the federal civil service. “Reasonableinvestigations of applicants and employees aid the Government in ensuring the security of itsfacilities and in employing a competent, reliable workforce.” Here, this requirement extended tocontract employees with long-term access to federal facilities. The right to privacy is not violated bya government employer’s reasonable questions as part of a background check.

Suppose that after the decision in this case, a JPL employee refuses to cooperate in a NACIbackground check. What would be the most likely consequences?

Answer 1

After such a clear ruling from the Supreme Court JPL definitely cannot insist on an employee undergoing a a NACI background check. Actually, if we understand the very reason for the existence of the NACI, it is to protect the security of an organisation, especially federal by extensive background checks on prospective employees through references, to establish their employability shall not pose a security risk to the organisation due to access to sensitive information. This extensive check was not required across the board for every organisation, as it would be unfair and result in many talented people with a single case of drug use or other such issue to be denied employment. It is important, as per the Supreme Court, to establish that the job does have security implications and does provide access to sensitive information.Secondly, the check should not prove a hindrance to obtain competent and reliable staff. JPL is mostly a research facility and the contract workers mostly students or young scientists. Considering the requirement it is clear over-zealous cjecks could result in the required talent not being employed to encourage and ensure innovation. The work done by JPL is definitely not sensitive and is available in the public domain, is not classified and does not relate to national security. Nor is JPL controlled by NASA or the federal government but is a research facility with federal funding. Imposing restrictions of NACI, on such a facility could result in all other such facilities following suit with major impact on the quality of researchers available and innovations. Once Supreme Court has passed judgement JPL insisting on the implementation of NACI would be tantamount to ignoring the supreme court verdict with serious repurcussions for the management of the organisation.