South Dakota Background Check Laws: A Guide for Employers

This article aims to be your roadmap through the intricacies of South Dakota's background check laws. From laying out the mandates to offering actionable best practices, we’ll ensure you’re well-prepared to make informed and compliant hiring decisions. So, let's dive in and equip you with the knowledge to navigate this crucial aspect of employment confidently.

Understanding South Dakota Background Check Laws

State-Specific Requirements

When conducting background checks in South Dakota, employers must be aware of key state-specific mandates. Understanding these requirements ensures that hiring practices are compliant and effective.

Background Check Mandates

In South Dakota, the need for background checks can vary significantly across different industries. For example, healthcare providers are often required to carry out extensive background screenings due to the sensitive nature of patient care and the need to maintain a safe environment. This typically includes criminal background checks, employment history, and drug testing.

Similarly, the transportation industry requires a thorough background check, particularly for commercial driving roles. These often include checks for driving records, any history of substance abuse, and violations related to federal Department of Transportation (DOT) regulations.

For most positions, the standard types of background checks include criminal history, credit reports, and past employment verification. While credit checks are less common, certain roles – especially those involving financial responsibilities or handling sensitive data – may necessitate them.

Licensing and Certification

Specific industries in South Dakota have additional requirements that may necessitate background checks for licensing and certification. For instance, healthcare workers might need to undergo checks for disqualifying criminal convictions as part of their licensure process. Similarly, any commercial driver operating under DOT regulations must pass a background and a drug test as part of their certification.

Ban-the-Box Law

Interestingly, South Dakota has not adopted a statewide "Ban-the-Box" law. This initiative, found in many other states, prevents employers from asking about criminal history on initial job applications. However, some local jurisdictions within South Dakota may have variations of such policies to ensure people with criminal histories are not unfairly excluded from the job market at the outset. Employers should stay informed of local mandates and adjust their hiring policies accordingly.

Best Practice: Consider delaying inquiries about criminal history until after an initial interview or a contingent job offer. This approach helps ensure a candidate's qualifications are assessed impartially, free from the biases that may arise from early disclosure of criminal history.

By understanding and adhering to these state-specific requirements, South Dakota employers can make informed hiring decisions that comply with local regulations, avoid potential legal pitfalls, and ensure a safer, more trustworthy workforce.

Specific State Laws Governing Background Checks in South Dakota

South Dakota Codified Laws (SDCL) 23-3-35

This statute authorizes the Division of Criminal Investigation (DCI) to provide criminal background checks for employment purposes. Employers can request these checks through fingerprint submissions to ensure the accuracy of the criminal history provided. Understanding this law is crucial for employers who need to conduct thorough background checks, especially for positions that require high security or involve vulnerable populations. It ensures compliance with state procedures and helps in making informed hiring decisions.

South Dakota Codified Laws (SDCL) 7-18A-37

This statute mandates that counties conduct criminal background checks on individuals seeking employment with county agencies. This helps maintain the integrity and safety of public sector employment. While this law directly affects county agencies, private employers can follow its stringent requirements to develop robust background check policies, ensuring they hire trustworthy and qualified candidates.

South Dakota Codified Laws (SDCL) 26-6-14.11

This law pertains to background checks in childcare settings, requiring comprehensive checks, including fingerprinting and reviewing criminal and child abuse/neglect registries for all individuals working in childcare facilities. For employers in the childcare industry, complying with this law is essential to ensure the safety of children under their care and to meet state regulatory requirements. Non-compliance can result in severe legal and reputational consequences.

South Dakota Codified Laws (SDCL) 13-10-12

This statute requires criminal background checks for individuals seeking employment in educational institutions, particularly those involving direct contact with students. Educational institutions must adhere to this law to protect students and maintain a safe learning environment. This practice complies with state law and promotes trust and safety within the community.

Local Ordinances Related to Background Checks in South Dakota

Here are some local ordinances in South Dakota that pertain to background checks:

Hand County Ordinance 2021-02

This ordinance requires fingerprint-based background checks for all new hires within the county. It aims to ensure the safety and integrity of the workforce by verifying potential employees' criminal histories through a thorough fingerprint analysis.

Compliance with this ordinance is crucial for businesses operating in Hand County. It helps employers make informed hiring decisions, reduces the risk of employing individuals with undisclosed criminal backgrounds, and safeguards their business environment and reputation​ (Hand County, South Dakota)​.

City of Pierre Local Ordinances

The City of Pierre provides a comprehensive set of local ordinances that include provisions for background checks, particularly for positions that involve public safety and direct interaction with vulnerable populations.

Businesses in Pierre must adhere to these local ordinances to comply with city regulations. These ordinances ensure that businesses conduct necessary background checks, promoting a safe and trustworthy environment for employees and customers​ (City of Pierre)​.

For more detailed information, you can visit the official websites of the South Dakota Legislature and specific county websites such as Hand County and City of Pierre. These resources provide comprehensive details on the applicable laws and ordinances.

Federal Regulations

Fair Credit Reporting Act (FCRA) Compliance

Overview of FCRA

The Fair Credit Reporting Act (FCRA) serves as the cornerstone for background check regulations for employers across the United States, including South Dakota. FCRA compliance isn't optional—it's a must. Employers must adhere to these federal guidelines to avoid hefty penalties and legal troubles. Understanding FCRA is critical to ensuring you’re on solid legal footing if you're conducting background checks.

Disclosure and Consent

One of the primary FCRA requirements is obtaining written consent from the candidate before conducting a background check. This means you must inform the candidate, in clear and non-technical language, that you’ll be performing a background check and get their explicit permission. This disclosure must be a standalone document and not buried in fine print. Skipping this step? Bad idea—non-compliance can lead to legal repercussions.

Adverse Actions

Adverse action procedures under FCRA are another vital component. If you decide not to hire someone based on their background check results, you must follow specific steps. Firstly, you need to provide the candidate with a "pre-adverse action" notice, which includes a copy of the background check and a statement of their FCRA rights. This allows the candidate to contest any inaccuracies. If you proceed with the adverse action, you must then send a final notice to the candidate, again detailing their rights. This process ensures fairness and transparency, reducing the risk of discrimination claims.

Equal Employment Opportunity Commission (EEOC) Guidelines

Non-Discrimination Policies

When it comes to background checks, one size does not fit all. The EEOC has established clear guidelines to ensure background checks are conducted in a manner that does not discriminate against any applicant based on race, color, national origin, sex, religion, disability, age, or genetic information.

Employers must be mindful of the potential for disparate impact discrimination, which occurs when a seemingly neutral background check policy disproportionately affects a protected group. For example, if a criminal background check policy disproportionately disqualifies individuals from a particular racial or ethnic group, it could be deemed discriminatory unless the employer can show that the policy is job-related and consistent with business necessity.

To comply with EEOC guidelines, employers in South Dakota should consider the following best practices:

1. Individualized Assessment: Conduct an individualized assessment before making a final decision based on background check findings. Evaluate the nature and gravity of the offense, the time that has passed since the offense or completion of the sentence, and the nature of the job sought.
2. Relevance to Job: Ensure that any disqualifying information in a background check is directly relevant to the job. For instance, financial crimes may be pertinent to positions involving fiduciary responsibilities but not necessarily to roles that do not handle finances.
3. Demographic Monitoring: Regularly review and analyze the demographic impact of your background check policies. If a specific group is disproportionately affected, reassess the necessity and criteria of the checks being performed.
4. Clear Communication: Inform candidates upfront about the possibility of a background check and the types of information that will be considered. Ensure this communication is transparent and easily understandable.

These steps can help South Dakota employers implement effective, non-discriminatory practices while maintaining compliance with EEOC guidelines. For a more detailed look, the external resource on EEOC Guidelines on Background Checks offers further insights and practical advice.

Additional Federal Resources

Consumer Rights

Candidates also have specific rights under federal regulations during the background check process. They have the right to be informed if information in their background check has been used against them, the right to know what’s in their file, and the right to dispute incomplete or inaccurate information. Be transparent and make sure your candidates know their rights. This transparency not only ensures compliance but also builds trust with prospective employees. For more detailed information, check out the FTC’s resource on employer background checks and your rights.

Data Privacy and Security

Make sure your background check processes comply with data privacy laws. The Federal Trade Commission offers guidance on how to properly store and dispose of sensitive information obtained during background checks.

Criminal Records

The National Consumer Law Center provides information on the proper use of criminal records in employment decisions and highlights common pitfalls to avoid discriminatory practices.

By adhering to these federal regulations, South Dakota employers can ensure they practice fair and legal hiring processes, minimize the risk of legal issues, and foster a culture of fairness and transparency.

Background Check Best Practices for South Dakota Employers

Developing a Compliant Background Check Policy

Policy Creation

Before starting background checks, it's crucial to outline a clear, written policy. This policy should comply with both South Dakota's state laws and federal regulations. Make sure to detail the types of checks you will conduct (criminal, credit, employment history, etc.), the stages at which these checks will occur, and the positions to which they apply. This helps to ensure transparency and consistency in your hiring process.

Documentation and Record-Keeping

Always maintain thorough documentation. This includes keeping records of the background checks conducted, written consents from applicants, and any adverse action notices issued. Proper documentation helps you stay compliant and serves as a safeguard in case of any legal disputes. Ensure that these records are securely stored and easily accessible in case they are needed for review.

Creating a compliant background check policy doesn't have to be overly complex, but it requires attention to detail. By implementing the right measures, you can build a robust process that protects your company and prospective employees.

Partnering with Screening Agencies

Choosing the right screening agency is crucial for employers looking to remain compliant with South Dakota’s background check laws. Here’s how to ensure you pick a partner that aligns with both state and federal requirements:

1. Experience in South Dakota Laws: Seek out agencies with a proven track record of operating within South Dakota. They should demonstrate a thorough understanding of state-specific requirements, such as those for the healthcare and transportation sectors.
2. FCRA Compliance: The agency must adhere to Fair Credit Reporting Act (FCRA) guidelines. This means offering clear, easy-to-understand consent and disclosure forms and following proper procedures for adverse actions.
3. Comprehensive Services: Your ideal partner should provide a range of background checks, including criminal history, employment verification, and credit reports. This versatility ensures that all your screening needs are covered in one place, saving time and reducing administrative complexity.
4. Accreditation: Agencies accredited by the Professional Background Screening Association (PBSA) or similar bodies often follow best practices and maintain high standards. Accreditation can serve as a mark of reliability and professionalism.
5. Technology and Security: Data security is paramount. Ensure the agency uses advanced technology to protect sensitive information. An agency with robust cybersecurity measures can help protect against breaches and ensure compliance with data protection laws.
6. Transparent Pricing: Hidden fees and unclear pricing structures can be a headache. Look for an agency that offers transparent, upfront pricing. This clarity helps you budget accurately and avoid unexpected costs.

Each point is critical in ensuring a seamless and compliant background check process. By partnering with a reliable screening agency, you can ensure that your hiring practices are thorough and legally compliant. This will give you peace of mind and a solid foundation for building a trustworthy workforce.

Training and Development

Staff Training

The bedrock of compliant background checks starts with well-informed HR teams. It's paramount that HR staff receive robust training on the nuances of both state and federal background check laws. Equip your team with knowledge about the Fair Credit Reporting Act (FCRA), Equal Employment Opportunity Commission (EEOC) guidelines, and South Dakota-specific mandates. Hold regular workshops and bring in legal experts to ensure your team can navigate the legal quagmire of background checks. This minimizes risks and embeds a culture of compliance within your organization.

Continuous Education

Laws aren’t static; they evolve, and so should your HR practices. Establish a regimen of continuous education to keep pace with legal updates. Subscribe to legal bulletins, attend webinars, and join professional networks focusing on employment law. Allocate time for your HR staff to stay updated with these educational tools. An informed team can quickly adapt to new regulations, mitigating potential liabilities and fostering a proactive approach towards compliance.

By investing in staff training and continuous education, you lay down a solid foundation for compliant, effective, and fair background check processes.

Industry-Specific Considerations

Healthcare

The stakes are significantly high in the healthcare industry in South Dakota, making stringent background checks a non-negotiable aspect of the hiring process. These mandates focus heavily on patient safety and data security. South Dakota law requires healthcare employers to perform extensive criminal background checks on potential hires, especially those with direct patient interactions or access to sensitive medical information.

• Criminal Background Checks: Healthcare facilities must verify any potential histories related to abuse, neglect, or other crimes that could endanger patients.
• License Verification: It is crucial to ensure that healthcare professionals hold valid and unencumbered licenses. This verification process also looks into any past disciplinary actions that could affect their ability to perform their duties safely.
• Abuse and Neglect Registries: Prospective employees are screened against state and national registries for any record of patient abuse, neglect, or exploitation. This helps ensure that individuals with a history of mistreatment in healthcare settings are not hired.
• Drug Screening: Routine drug testing is often mandatory to ensure both patient and workplace safety.

Transportation

The South Dakota Department of Transportation (DOT) imposes rigorous background check protocols in the transportation sector, particularly for commercial drivers. Compliance with DOT regulations is essential for operational legitimacy and public safety.

• Safety-Sensitive Positions: The DOT mandates stringent background checks for safety-sensitive roles, such as commercial drivers. These checks often include reviewing driving records, employment history, and drug and alcohol test results from previous employers.
• Commercial Driver's License (CDL): All prospective commercial drivers must undergo a thorough background screening before being issued a CDL. This includes verification of driving records through the National Driver Register and the Commercial Driver's License Information System.
• Drug and Alcohol Testing: Pre-employment, random, post-accident, and reasonable suspicion testing are mandated by federal law. Employers must ensure compliance with these regulations and keep meticulous records to avoid severe penalties.
• Motor Vehicle Records (MVR) Checks: Employers must obtain MVR checks annually to verify that no infractions or disqualifications have occurred that could impede the driver’s ability to operate commercial vehicles safely.

Non-Profit

Volunteer screening within non-profits is critical yet often less regulated than formal employment. However, it remains vital for organizations to adopt robust background check practices to ensure the safety and integrity of their programs.

• Baseline Checks: Perform criminal background checks on all volunteers, regardless of their role. This is especially crucial for those who will be working with vulnerable populations such as children, the elderly, or individuals with disabilities.
• Role-Specific Screening: Consider additional checks such as credit histories or employment verification for volunteers handling sensitive information or financial transactions.
• Consistency: Apply the same standards across the board to avoid discrimination. Having a uniform policy enhances fairness and legal compliance.
• Legal Awareness: Familiarize yourself with federal and state laws that may impact volunteer screening. While South Dakota doesn’t have state-specific mandates for volunteer checks, federal guidelines like the Fair Credit Reporting Act (FCRA) still apply.
• Documentation: Ensure all volunteers provide written consent before conducting any background check. Keep a meticulous record of these consents and the results of the checks for future reference.
• Adverse Actions: If a background check uncovers disqualifying information, follow the FCRA guidelines for adverse actions. Notify the volunteers, providing them an opportunity to dispute the findings.

Retail, Technology, and Hospitality

These sectors often place employees in direct contact with customers, making comprehensive background checks essential to uphold trust and service quality.

• Customer-Facing Roles: It’s crucial to perform in-depth criminal history checks to ensure the safety and well-being of customers. This is especially true for roles that handle customer payments or sensitive personal information.
• Employment History Verification: Verifying past job roles and performance can help determine a candidate’s reliability and integrity.
• Credit Checks: Although less common, some roles involving financial responsibilities may necessitate credit checks to assess financial stability and trustworthiness.

Ensuring compliance across these varied industries involves tailoring background check procedures to meet both regulatory requirements and unique operational needs. By maintaining thorough and compliant background checks, employers in South Dakota can make informed hiring decisions that promote a secure and efficient workplace.

South Dakota Background Check Resources

Here is a table of related South Dakota government websites that would be useful for South Dakota business owners interested in background checks:

Website Name	URL	Description
Department of Labor and Regulation (South Dakota)	https://dlr.sd.gov	Offers resources on labor laws, employment regulations, and licensing impacting background checks.
Department of Public Safety (South Dakota)	https://dps.sd.gov	Provides access to criminal history records and background check information.
Unified Judicial System (South Dakota)	https://ujs.sd.gov	Access to court records and legal information relevant to background checks.
Department of Corrections (South Dakota)	https://doc.sd.gov	Information on criminal records, parolees, and public safety concerns.
Office of the Attorney General (South Dakota)	https://atg.sd.gov	Offers guidance on legal matters, including consumer protection and employment law.
Governor's Office of Economic Development (South Dakota)	https://sdreadytowork.com	Provides resources for business development and compliance with state regulations.
Bureau of Information and Telecommunications (South Dakota)	https://bit.sd.gov	Information on state IT policies and data privacy for handling sensitive background check data.
South Dakota State Archives	https://history.sd.gov/archives	Access to public records and historical documents useful for in-depth background research.
South Dakota Legislature	https://sdlegislature.gov	Stay updated on laws and regulations passed by the state legislature that may affect background checks.
Department of Health (South Dakota)	https://doh.sd.gov	Information on health regulations and requirements impacting employee screenings and background checks.

These websites provide valuable resources and information to ensure South Dakota business owners comply with state laws and regulations when conducting background checks.

Frequently Asked Questions (FAQ)

What disqualifies someone from a background check in South Dakota?

In South Dakota, disqualifying factors can vary by industry and specific company policies. Generally, convictions for violent crimes, theft, fraud, or other serious offenses could disqualify a candidate, particularly in sensitive sectors like healthcare or childcare. It's crucial to base disqualifications on the nature of the job and the relevancy of the offense to ensure compliance with both state and federal non-discrimination guidelines.

How long do background checks take in South Dakota?

The duration of background checks can vary depending on the depth and scope of the check. Typically, they can range from a few days to a few weeks. Factors influencing the timeline include the types of records being checked, the efficiency of court databases, and the responsiveness of past employers or educational institutions when verifying histories.

How Far Back Does a Background Check Go in South Dakota?

The look-back period for background checks in South Dakota generally covers the past seven years. However, certain positions, especially those involving high security or financial responsibilities, may have a longer look-back period.

Can applicants dispute the results of a background check?

Yes, applicants in South Dakota, as elsewhere in the U.S., have the right to dispute inaccurate or incomplete information found in their background check. According to the Fair Credit Reporting Act (FCRA), employers must provide candidates with a copy of the report and a summary of their rights, allowing applicants to identify and challenge any discrepancies with the reporting agency.

Are there restrictions on what can be included in a background check report in South Dakota?

Yes, there are restrictions. For instance, the FCRA limits the reporting of bankruptcies to the last 10 years, as well as civil suits, civil judgments, and records of arrest that did not result in conviction in the last seven years. Additionally, employers must ensure that the information they use is relevant to the job the candidate is applying for. This aligns with the Equal Employment Opportunity Commission’s (EEOC) guidelines on non-discriminatory hiring practices.

Conclusion

Any employer must understand and adhere to South Dakota's background check laws. Staying compliant not only shields your company from potential legal issues but also fosters a trustworthy and safe working environment for all employees.

By following the state-specific guidelines and federal regulations outlined in this guide, you can establish a robust background check policy. This helps you make informed hiring decisions, reduce risks, and enhance the overall quality of your workforce. Consistent compliance ensures you remain on the right side of the law while contributing positively to your industry's standards.

Employers should continually stay updated on state and federal law changes and develop clear, written policies that leave no room for ambiguity. Training staff and partnering with reputable screening agencies can further bolster your compliance efforts.

In summary, the pathway to a compliant and effective background check process in South Dakota revolves around diligence, education, and adherence to established legal standards. Doing so prevents pitfalls and paves the way for a more secure and efficient hiring process.