Is an Employment Background Check Ever Too Invasive?

Generally speaking, the government can ask for background checks for employees of defense contractors.

But are there limits to what the government can ask? At what point — if at all — does a government query into the drug use history of a low-level employee violate that employee’s constitutional right to privacy?

An interesting question, and one that eight Supreme Court justices were called upon to ponder today down at One First St., N.E. (As Solicitor General, Justice Kagan weighed in on behalf of the government; thus she has recused herself from hearing the case as a justice.)

According to this account by the LA Times’s David Savage, the justices gave a “skeptical hearing” to the 28 Caltech scientists challenging the government’s use of background checks. Caltech runs the Jet Propulsion Laboratory under a contract with NASA. Click here for the transcript of the arguments.

The scientists won at the Ninth Circuit, which held that questions violated their constitutional right to privacy.

According to Savage’s story, the justices all (with the possible exception of Justice Sonia Sotomayor) sounded as if the were inclined to uphold the background checks.

That said, they explored the limits of what the government should be allowed to ask. Justice Antonin Scalia, staying true to his “textualist” method of constitutional interpretation, said there was no such privacy right. “I don’t see it anywhere in the Constitution,” he told Dan Stormer, a Pasadena lawyer who represented the Caltech employees.

Chief Justice John Roberts and Justice Samuel Alito said they would not close the door to all such claims. “Isn’t there some right to tell the government: ‘That’s none of your business’?” Roberts commented.

Alito said he questioned whether the government could ask people to fill out forms revealing what they ate, what they read or whether they smoked cigarettes and to describe their sex lives. “Is that OK?” he pressed Neal Katyal, the acting U.S. solicitor general.

Probably not, Katyal agreed, but he urged the justices to rule that the government can ask open-ended questions of its employees and contract workers.

Read more here.

You Wanna Background Check Me? Well, Be Careful Where You Look ...

With the economy in disarray, employers are finding themselves inundated with job applications.

Increasingly, employers have turned to the use of background reports, such as criminal history and credit records, to assist in narrowing the applicant pool to a manageable level. According to one 2009 survey, 93 percent of the 1,411 employers questioned reported that they conduct criminal records checks on job applicants. Approximately half of those employers reported that they also check applicants' credit histories.

And who can blame them?

For the nominal fee of a comprehensive background check, an employer can get: (1) a glimpse of the person that is not revealed in the employment application (i.e. fiscal prowess, propensity for trouble, driving ability); (2) a potential shield from negligent hiring or retention suits; and, (3) hopefully, a significant decrease in their loss, fraud, and productivity issues.

Unfortunately, these employers are also getting something they did not bargain for. In addition to finding out the nitty-gritty of job applicants' histories, employers are also finding themselves as defendants in large, unexpected discrimination lawsuits brought by the U.S. Equal Employment Opportunity Commission (EEOC) as well as groups of private litigants.

Read more here

College of Charleston Employee Background Checks

Two College of Charleston employees have been arrested in the past two months and the college is putting new measures in place to screen employees.

The College employs about 1,800 people in the Lowcountry. Before now, background checks have not been required for all its workers.

The recent arrest of two of its workers is prompting the college to change the way it screens potential employees.

Read more here.