Employer Use of Arrest and Conviction Records in South Dakota

South Dakota law doesn't limit employer use of criminal records.

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It can be tough to land a new job if you have a criminal record, as an estimated 65 million Americans do. Surveys show that a majority of employers – 92%, according to one survey – run a criminal background check when hiring for some or all positions. If you have a history of arrests or convictions, it might put you out of the running for these jobs, especially in the current economic climate. 

There are some legal protections for job seekers with criminal records. Federal law and the laws of many states place some limits on how employers can use these records in making job decisions. South Dakota has not legislated in this area for private employers, however.   

Federal Protections for Job Seekers

Two federal laws provide limited protection to applicants with criminal records.

Title VII: Protection From Discrimination

Title VII of the Civil Rights Act of 1964 protects applicants and employees from discrimination in employment, including screening practices and hiring. Because arrest and incarceration rates are so much higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.

The Equal Employment Opportunity Commission (EEOC) has issued guidance for employers, explaining how they can screen out applicants whose criminal records pose an unreasonable risk without engaging in discrimination. In deciding whether a particular offense should be disqualifying, employers must consider:

  • how much time has passed since the offense or sentence
  • the nature and gravity of the criminal offense or conduct, and
  • the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

According to the EEOC, employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

The Fair Credit Reporting Act: Inaccurate Records

The federal Fair Credit Reporting Act (FCRA) addresses the issue of accuracy. Reports generated by criminal background check firms may include errors, such as information on convictions that have been expunged, misclassification of crimes, multiple listings of the same offense, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), and even records that belong to another person with the same name.

The FCRA imposes responsibilities both on employers who request criminal background checks and on the firms that provide them. Employers must:

  • Get the applicant’s written consent before requesting a check.
  • Give the applicant notice if the employer plans to screen him or her out based on the contents of the report. In this situation, the employer must also give the applicant a copy of the report.
  • Give the applicant notice once the employer makes a final decision not to consider the applicant based on the report.

The firms that provide background checks must take reasonable steps to make sure that the information they provide is accurate and up to date. If you dispute what’s in the report, the agency must conduct a reasonable investigation. If the investigation reveals that the report was incorrect, the agency must inform you and any other person or company to whom it has provided the report.

No South Dakota Law on Employer Use of Criminal Records

States take a variety of approaches in limiting employer use of criminal records in hiring and other employment decisions. Some states require employers to consider whether the offense bears a reasonable relationship to the job. Some states prohibit employers from asking about arrest records or records that have been sealed or expunged. And, some states have passed laws restricting how employers may use an applicant’s criminal record in making job decisions. However, South Dakota is one of the minority of states that has not legislated in this area for private employers.

South Dakota’s Department of Labor has issued a brochure, “Pre-Employment Inquiry Guide,” which states that employers should not ask or check on an applicant’s arrest, conviction, or court records unless they are substantially related to the functions of the job. 

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