Supreme Court Approves Employee Background Check Questions on Drug Use -- NASA v. Nelson

The plaintiffs in National Aeronautics and Space Administration v. Nelson, claimed that NASA violated their privacy rights by requiring them to answer questions concerning illegal drug use and drug counseling when applying for positions at the renown Jet Propulsion Laboratory (JPL) in Pasadena.

The majority opinion sidestepped the controversial issue of the scope of privacy rights under the federal constitutional by simply assuming arguendo that such a right existed.  Thus, the opinion did not turn on issues of constitutional interpretation but on whether the questions were deemed to be a reasonable part of NASA's role as an employer.      

Under this standard the Court had no hesitation in finding that the drug-related questions were perfectly reasonable "employment-related inquiries that further the Government's interests in managing its internal operations."   As the Court explained:

The Government has good reason to ask employees about their recent illegal-drug use. Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will efficiently and effectively discharge their duties. 

The Court also approved of the questions concerning treatment and counseling as being entirely appropriate in an employment context:

[T]he follow-up question on “treatment or counseling” for recent illegal-drug use is also a reasonable, employment-related inquiry. The Government, recognizing that illegal-drug use is both a criminal and a medical issue, seeks to separate out those illegal-drug users who are taking steps to address and overcome their problems. The Government thus uses responses to the “treatment or counseling” question as a mitigating factor in determining whether to grant contract employees long-term access to federal facilities. 

Indeed, the majority even went further in a footnote dictum suggesting that "Asking about treatment or counseling could also help the Government identify chronic drug abusers for whom, despite counseling and rehabilitation programs, there is little chance for effective rehabilitation.”  In other words, analyzing an applicant's drug treatment history is a valid means to weed out the hopeless drug abusers from those who are more likely to stay on the wagon:  

While NASA v. Nelson involved federal workers it is still significant for private sector employers in California.  This is because the California constitution contains its own right of informational privacy which, unlike the federal constitution, applies to all private sector employers.  The caselaw interpreting this California privacy right is a murky balancing test that weighs the extent of the alleged privacy invasion against the employer's need to know.  

The U.S. Supreme Court's hearty endorsement of pre-employment questioning on illegal drug use and counseling is thus a fairly persuasive (if not controlling) authority for approving the same questions under California law.   



Retaliation by Association is Illegal -- Thompson v. North American Stainless, LP

In Thompson v. North American Stainless, LP, the Supreme Court held that it is an unlawful employment practice under Title VII to terminate an employee's "close family member" in order to retaliate against her for filing a charge of discrimination with the EEOC.  It further held that a terminated fiancé would have standing to sue on his own behalf for this retaliatory termination. 

Neither of these holdings is surprising.  After all, the prospect of having a "close family" member fired is an obvious deterrent to filing an EEOC charge.  The terminated family member has just as obviously suffered a significant injury which is directly due to the prohibited retaliation.  Indeed, it would have been pretty shocking if the Court had said that such a terminated employee had no remedy.

More interesting are the issues that the Court specifically did not decide.  For example, while "close family members" are in the zone of protection it will be up to future cases to decide if friends, acquaintances, or even sympathetic strangers could file similar actions.   

Moreover, the Thompson case was decided based solely on the allegations of the pleadings, which the Court was bound to accept as true for purposes of the ruling.  As the Court explained:

Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation-collateral damage, so to speak, of the employer's unlawful act. To the contrary, injuring him was the employer's intended means of harming [his fiancé]. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.

But this alleged scenario -- terminating employee A for the sole purpose of hurting employee B -- is probably not very common in the real world.  A more likely scenario is that once a whistleblower is terminated, his supporters or protégées may find themselves on the chopping block because they are now perceived as part of a disfavored or disloyal faction which has just lost its patron. 

Disentangling the acceptable rough and tumble of office politics from illegal retaliation will be a challenging task.  But the Thompson opinion seems to have started down a path that will require courts and juries to do exactly that in future cases.                  

Van Vleck Turner & Zaller Relocates Offices

In the category of VTZ news, we have just finished relocating our offices from downtown LA to the Carthay Circle area of West LA.  Our new contact information is:

Van Vleck Turner & Zaller, LLP
6310 San Vicente Blvd., Suite 430
Los Angeles, CA 90048
(323) 592-3505 (Tel.)
(323) 592-3506 (Fax)


List of Top 100 Employment Law Blogs Names California Workforce Resource Blog as #24

The fine folks at at The Delaware Employment Law Blog have released their annual list of The Top 100 Employment Law Blogs in the country for 2010.  And I am proud to report that our humble exercise made the list at #24.  The recognition is especially satisfying as we are in the company of some really great blogs.