California Labor and Employment Defense Blog

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.   



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