Ninth Circuit Invalidates Certain Pre-Employment Inquiries

The Ninth Circuit has issued a few opinions lately in which the court has struck down pre-employment inquiries such as applicant drug testing, medical examinations, and the like. The court recently held that NASA's practice of investigating contractors' employees was too intrusive and, therefore, violated the employees' "information privacy" rights under the Constitution. The court, however, held that the questionnaires and background checks were not "searches" under the Fourth Amendment.

The persons at issue were employees of Caltech, working under a contract for NASA at a federal facility. Of note, these employees were not exposed to sensitive information and were considered "low risk" by NASA.

NASA has conducted the same federal background check since its inception for its own employees, and recently expanded the investigation to contractors. The federal investigation includes questionnaires sent to persons identified by the applicant, and asks for a broad and open-ended amount of information about the applicant's employment history, education, habits, behaviors, financial responsibility, etc.

The court found that parts of the questionnaire were too broad and, therefore, violated the applicants' rights to informational privacy because they were not sufficiently narrow to justify the intrusion.

Interestingly, the court held that questionnaires concerning past illegal drug use were NOT a violation, because they were narrowly tailored to meet the government's legitimate interest in a drug-free workplace. But, the questions asking about counseling for prior drug use were not narrowly tailored and, therefore, a violation of the applicants' privacy rights. Recall that in the recent case of Lanier v. City of Woodburn, the Ninth Circuit invalidated a county's applicant drug testing program.

This case is called Nelson v. NASA and the opinion is here.