There are both state and federal laws that limit the type of information employers can request about a prospective employee. For example, state and federal anti-discrimination laws prohibit you from seeking any information regarding an applicant's sex, age, race, creed, color, national origin, religion, pregnancy, and liability for service in the armed forces of the Unites States, unless the inquiry is based upon a bona fide occupational qualification. New Jersey law also prohibits employers from requesting information about an applicant's sexual orientation. Because of these laws, employers may not ask for information such as an applicant's date of birth, marital status, birthplace, religious holidays observed, number or age of children, or whether an applicant plans to have children in the future, unless the employer can prove that the inquiry is justified by business necessity.

The New Jersey Smokers' Rights Act makes it illegal for employers to discriminate against individuals for smoking outside the workplace, and specifically prohibits employers from firing or refusing to hire or promote individuals based on whether they smoke off the job. Thus, employers should not ask applicants for information relating to their smoking status because once an employer possesses such information, an applicant can argue that the employer used it as the basis for an impermissible employment decision.

The Americans with Disabilities Act and New Jersey Law Against Discrimination prohibit employers from inquiring about a prospective candidate's medical history. For example, you may not ask an applicant whether she has ever had or been treated for certain medical conditions, whether she has ever been hospitalized or treated by a psychiatrist or psychologist, whether she is taking any prescribed medications, or whether she has ever been treated for drug addiction or alcoholism.

Yes. However, you only may require applicants to undergo a physical examination after an offer of employment has been made. If you decide to require physical examinations, you must be consistent about the process. Though you may limit the requirement for a physical exam to certain job categories, all applicants in the particular category must be given a medical exam and the testing must be the same for all employees within that category. If you decide not to hire an applicant because of a disability uncovered during a medical examination, the reason must be job-related and there must be no reasonable accommodation available that would allow the employee to perform the job (or the accommodation must pose an undue hardship). Additionally, if you intend to make passing the medical examination a condition of employment, then the job offer for any applicant who will undergo an exam should be made conditional upon satisfactory completion of the post-offer exam.

While it is permissible under New Jersey law to conduct a criminal background check on your applicants, you need to keep several important factors in mind when deciding whether to conduct this type of inquiry. First, although you are permitted to inquire as to an applicant's conviction record, you are prohibited from inquiring about an applicant's arrest record. In fact, the EEOC has ruled that the mere request for information about an applicant's arrest record tends to discourage minority applicants and therefore is illegal.

Second, some federal courts have held that a conviction for a felony or misdemeanor may not by itself lawfully constitute an absolute bar to employment. Rather, an employer should consider the relationship between a conviction and the applicant's fitness for the particular job at issue. As with all information an employer obtains about a potential applicant, employers should not reject an applicant based on a conviction unless the employer determines that the nature of the conviction causes the applicant to be unsuitable for the position at issue. By way of example, a conviction for drunk driving probably would make an applicant unsuitable for a job as a bus driver, but might not make the applicant unsuitable for a job as a bank teller.

Finally, if you decide to obtain information about a candidate's conviction record and you engage an outside service to perform this inquiry, then you must comply with the requirements imposed by the Fair Credit Reporting Act (“FCRA”). The FCRA's requirements are very specific and quite onerous and you should review your procedure in detail to ensure that it complies with the Act.

In order to avoid potential claims by the employee for defamation and/or invasion of privacy, we recommend limiting the disclosure of background information about current employees as much as possible. Before disclosing information about a current employee, we suggest that you obtain the employee's written consent. If the employee will not grant consent, or if the person or agency requesting the information does not want your employee to know about the information request, then we suggest requiring a subpoena or court order before turning over any information. This will provide you with some level of protection in the event the employee attempts to take legal action against you for disclosing his or her private information.