Pamela Devata Quoted in Human Resource Executive
“High Court to Hear Background Screening Case”

Pamela Devata was quoted in the April 1, 2010 Human Resource Executive article, “High Court to Hear Background Screening Case.” The article discussed a case before the U.S. Supreme Court involving NASA’s background-screening techniques and an individual’s right to privacy. According to the article, the NASA vs. Nelson case involves a group of scientists, engineers and administrative personnel working at a NASA facility who claim NASA’s contract with Caltech, which was modified in 2007 to require background screening tests as a condition of being allowed access to the facility, violates their rights to privacy under the Fourth Amendment, the Privacy Act, and a constitutional right to informational privacy. Pam pointed out that what the high court ultimately decides could affect how the federal government investigates the backgrounds of all current and future employees. It could also easily serve as precedent for the private sector, as well. In addition to deciding whether the laboratory workers’ rights to privacy were violated by the checks, one of the issues the court may consider is whether the background questions asked of federal contractors must be specifically related to the job.

The article noted that there currently is no federal law saying information secured from a background screener must relate to the specific job a federal contractor is applying for or carrying out. Pam explained, “If the Supreme Court justices come and say, When you’re doing a background check for a federal contractor, the check must relate to the job specifically, that could even go beyond the jurisdiction of federal contractors and have immediate bearing in private-sector cases. It would be an easy step to take. It’s just a hop over.”

Pam added that the Caltech case also raises "sort of a joint-employer issue; a very, very hot topic right now for background screeners." Conflicts arise regularly in public and private sectors over contracts that specify one agency's or organization's jurisdiction over someone, but aren't clear about the roles of other agencies or companies involved in the work being done. She commented, "Some might claim a contract is clear, but that doesn't prevent other parties from arguing that they have jurisdiction. It's a really interesting dilemma. When this case first came out, it was huge, hot news because of this." Pam also mentioned that the arguments that will be brought before the Supreme Court in its upcoming term, beginning in October, will be closely watched, particularly anything that addresses job-relatedness.

Pam concluded by suggesting that when considering using a vendor or background-screening provider, "I think you have to ask them what their policies for complying with the Federal Credit Reporting Act and other laws are. Be very clear in asking, 'What information are you providing me?' Having clear communication with background screeners is one of the biggest challenges I have witnessed for HR."