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U.S. Supreme Court Announces It Will Hear Oral Argument Next Session Involving Federal Contractors That Could Have Far Reaching Implications For All Employers

The U.S. Supreme Court announced this week that it will hear a case that temporarily barred background checks involving federal contractors at the National Aeronautics and Space Administration’s Jet Propulsion Laboratory. The decision by the court, expected in June 2011, could affect how the federal government investigates the background of current and future NASA JPL employees. It could also have far reaching implications for all employers – federal and private – as it could set a groundbreaking precedent.

The justices agreed to hear an appeal from NASA, which had its worker investigations at JPL blocked after the 9th U.S. Circuit Court of Appeals said the background screening threatened the constitutional rights of employees.

The government appealed the appellate ruling to the U.S. Supreme Court. In their request that the Court hear the case, the Department of Justice argued that the decision has potentially impactful consequences for background screening and homeland security. The request cited that former President George W. Bush issued the homeland security directive in question “in response to concerns that arose after September 11, 2001, about individuals gaining access to federal facilities through identification fraud.” The request further noted that the Department of Commerce and NASA determined that a good way to ensure the security of federal facilities was to require that all contract employees be subjected to the new screening policy.

In addition to deciding whether the workers’ rights to privacy were violated, the Court may also possibly consider whether the background questions asked must be specifically related to the job. The Equal Opportunity Employment Commission has argued that job-relatedness needs to be part of an employer’s decision when using background information. Currently there’s no law stating that information gleaned from a background screening must relate to the job for which a federal contractor is applying or performing.

“This decision could set a scary precedent,” said Greg Dubecky, General Manager of Corporate Screening. He added that there has been a lot of recent legislation involving the acquisition of background information, including credit information, that while is intended to protect individuals’ privacy rights is not protecting the rights of companies to hire sound candidates. “It’s truly an interesting dilemma that will be closely watched next year.”

Dubecky added that it’s important to continue working with a screening company that understands the implications of compliance with laws such as the Fair Credit Reporting Act. “When you’re working with a highly qualified background screening provider like Corporate Screening, one committed to compliance, you know that you’re investing in the long-term success of your company’s performance. Nothing can replace peace of mind.”