The Supreme Court has decided to hear a case testing whether a federal contractor's employees in “low risk” positions can be required to undergo extensive background checks.

The case involves workers at the Jet Propulsion Library, which is located on federally owned land but is operated by the California Institute of Technology (Caltech) pursuant to a contract with the National Aeronautics and Space Administration (NASA).

In 2007, NASA amended its contract with Caltech to require that every employee at the laboratory undergo a National Agency Check with Inquiries (NACI), the same background investigation required of government civil service employees. During the investigation, each of the applicants' references, employers, and landlords is sent an “Investigative Request for Personal Information” (Form 42), which asks whether the recipient has “any reason to question [the applicant's] honesty or trustworthiness” or has “any adverse information about [the applicant's] employment, residence, or activities” concerning “violations of law,” “financial integrity,” “abuse of alcohol and/or drugs,” “mental or emotional stability,” “general behavior or conduct,” or “other matters.”

Under the new policy, the employees were required to clear the background check in order to gain admittance to the lab. Caltech took it a step further, saying employees who failed to clear the background check would be considered to have voluntarily resigned.

The lab's employees objected to the background check. They argued that since they are in low-risk positions (that is, they have no access to classified information), the background checks are an invasion into their “informational privacy” under the U.S. Constitution.

The specific questions before the Supreme Court are:

• Whether the government violates a federal contract employee's constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee's response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.
• Whether the government violates a federal contract employee's constitutional right to informational privacy when it asks the employee's designated references for any adverse information that may have a bearing on the employee's suitability for employment at a federal facility, the reference's response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.