As an HR professional in South Dakota, you understand how important it is to ensure the safety of your employees, business operations, and customers by making smart hiring choices.
Unfortunately, some job applicants are less than truthful on their applications and resumes.
Did you know that the former city finance officer of Tripp, South Dakota was convicted of embezzling more than $500,000?
Conducting employment background checks during your hiring process can help to screen out dishonest, unqualified candidates.
A thorough background check in South Dakota allows you to confirm an applicant’s identity, employment history, educational background, criminal record, and licensure so that you can make sound hiring decisions and reduce your risks of liability.
Based on our extensive experience conducting pre-employment background checks for employers in Sioux Falls, Rapid City, Aberdeen, and throughout South Dakota, we wrote this comprehensive guide for you to use as a resource.
Let’s get started.
South Dakota Background Check Laws in 2023
South Dakota employers must comply with both state and federal laws.
The most important ones are detailed below.
Federal Laws on Employment Background Checks
Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA) is a federal law that protects consumers’ privacy in the information that consumer reporting agencies (CRAs) gather, keep, and report.
This law is enforced by the Federal Trade Commission (FTC) and controls both the dissemination of information by CRAs to employers and how employers can use the information they receive on employment background check reports.
You must notify all candidates that you conduct employment background checks, and before you do so, you must get their signed consent.
If you decide not to hire an applicant based on information revealed in a background check report, you must comply with the FCRA’s adverse action process before making a final hiring decision.
At iprospectcheck, we conduct FCRA-compliant background checks and always follow all other relevant laws.
Title VII of the Civil Rights Act of 1964
Title VII of the 1964 Civil Rights Act (Title VII) is the leading federal anti-discrimination law that prohibits employment discrimination based on an applicant’s or employee’s protected characteristics. This law is enforced by the Equal Employment Opportunity Commission (EEOC).
Title VII governs what employers must do when they learn that an applicant has a criminal record.
Under the EEOC’s enforcement guidance, employers should individually assess criminal records revealed on background checks as they directly relate to the job duties for which the employers are hiring.
South Dakota State Laws on Employment Background Checks
South Dakota follows the provisions of the FCRA and Title VII and does not have any ban-the-box laws.
However, there are a few state laws that you should keep in mind.
Automatic Removal of Certain Convictions
Under SDCL § 23A-3-34, Class 2 misdemeanor and petty offense convictions are automatically removed from the convicted person’s public records five years after the individual has completed the terms and conditions of the sentence as long as they have not been convicted of another offense.
Expungement of Certain Records
Under SDCL § 23A-3-35, people who are placed in diversion programs can have their criminal records expunged if they complete the terms and conditions of their diversionary sentences as long as they are not charged with subsequent offenses within one year and one day.
Under SDCL § 23A-3-32, people with arrests not resulting in convictions can have their arrest records expunged from their permanent records and can truthfully deny that they have been arrested or indicted.
Licensure by Endorsement
Gov. Kristi Noem signed 2021 HB-1077 into law on Feb. 23, 2021.
Under this law, certain professionals in jobs requiring licenses can receive licenses by endorsement when they have licenses in good standing in other states.
This law makes it important for employers to conduct professional license verifications in every state in which an applicant has lived and held a professional license.
How do I Stay Compliant with Employment Laws in South Dakota?
If you fail to comply with the federal and state employment background check laws in South Dakota, you could face potential litigation, fines, and stiff penalties.
Follow these tips to remain compliant.
1. Don’t Ask About Arrests or Expunged Diversions
You should avoid asking about arrests or expunged diversions any time during the hiring process to comply with South Dakota’s state laws.
While the state does not have a ban-the-box law, an increasing number of local jurisdictions and states are enacting them.
To stay ahead of the curve, it might be a good idea to avoid asking about criminal history information on your applications and instead, wait until later during the hiring process.
2. Individually Assess Convictions
If you learn that an applicant has a criminal conviction, conduct an individual assessment of that conviction as it directly relates to the position for which the applicant is being considered.
Don’t automatically decide against hiring the applicant without conducting an individual assessment.
3. Send a Pre-Adverse Action Notice
If an applicant’s criminal conviction makes you want to deny employment, you must send a pre-adverse action notice.
In the notice, identify the disqualifying conviction and include a copy of the criminal history report.
Give the applicant a deadline to clarify the information or to present evidence of the record’s inaccuracy or the applicant’s rehabilitation.
4. Send a Final Adverse Action Notice
If you still want to deny employment to the applicant after completing the adverse action process, send a final adverse action notice.
Together with this notice, include a copy of the applicant’s rights under the FCRA.
What Shows up on a Background Check for Employment in South Dakota?
The information that will appear on a South Dakota employment background check report will depend on what you request.
Most employers in the state request information about their applicants’ criminal history, educational history, employment history, and credentials.
Employers that hire applicants who will drive as a part of their positions also typically request driving records checks. Many employers also choose to conduct pre-employment drug tests as a condition of employment.
In general, the following types of information might appear on South Dakota pre-employment background checks:
- Non-expunged convictions
- Pending criminal matters
- Arrests resulting in convictions
- Listing on a sex offender registry
- Education history
- Employment history
- Address history
- Listing on the Domestic Terrorist Watch List
What might you see on these reports? Let’s take a look at a few of them below.
If you request a criminal background check on an applicant who has a non-expunged criminal record, the following types of information will be reported:
- Offense date
- Offense type
- Offense severity (misdemeanor or felony)
- Case disposition
- Disposition date
If an applicant has completed a diversion and has received an expungement, you will not see information about the diversionary sentence or the underlying offense.
Education verification allows you to confirm an applicant’s educational attainment and history. On this type of background check, the following information will be reported:
- Name and location of all educational institutions attended
- Dates of attendance
- Any degrees, certificates, or diplomas conferred
Employment verification reports help to confirm an applicant’s claims about his or her past employment. On an employment verification check, the following information will be reported:
- Name and location of each past employer
- Dates of employment at each company
- Job positions and titles held
How Far Back Does a Background Check Go in South Dakota?
South Dakota’s laws and the FCRA govern the age of information that can be reported on employment background checks.
The FCRA has a seven-year lookback period that applies to jobs that pay less than $75,000 per year for the following information:
- Arrests not resulting in convictions
- Civil judgments
- Civil lawsuits
The FCRA’s restrictions do not apply to jobs that pay more than $75,000 per year or to convictions.
However, under South Dakota’s expungement law, petty offense and second-degree misdemeanor convictions are automatically expunged after five years and will not be reported.
Similarly, completed diversionary sentences that have resulted in expungement will not be reported.
All non-expunged conviction information can be reported regardless of age. The lookback period also doesn’t apply to other types of background information about education, credentials, or employment.
Where Can I Get a Background Check in South Dakota?
You can request a South Dakota criminal background check through the South Dakota Division of Criminal Investigation. This type of background check requires the applicant to submit a set of rolled fingerprints but will only return information from the state and not other jurisdictions.
A state criminal background check also will not reveal other crucial background data about an applicant’s employment, education, and other details.
Some employers attempt a do-it-yourself approach to employment background checks by submitting requests to multiple state agencies, past employers, and schools and searching online.
Trying to complete a background check in this way might not return all of the information you need and could take weeks to complete.
A better approach is to work with a reliable background check company like iprospectcheck.
We offer fully FCRA-compliant, comprehensive, up-to-date, and accurate employment background checks to our clients in South Dakota.
What Disqualifies You From a Background Check in South Dakota?
There are any number of reasons an applicant might be turned down for a job based on information contained in an employment background check.
Here are some of the most common disqualifying reasons.
1. Positive Pre-Employment Drug Screens
Many South Dakota employers condition job offers on pre-employment drug screens.
If an applicant returns a confirmed positive result on a pre-employment drug test, the employer will likely withdraw the offer of employment.
2. Criminal Convictions Related to the Job
While simply having a criminal record does not necessarily mean that an applicant will be denied employment, employers can turn down applicants whose convictions directly relate to the positions for which they are hiring.
Certain industries also have industry-specific regulations that prohibit hiring people with certain types of convictions on their records.
For example, under 18 U.S.C. § 1033, people who have been convicted of felony offenses involving a breach of trust or dishonesty are prohibited from working in the insurance industry unless they have obtained signed consent from an insurance regulatory official.
3. Dishonesty About Past Employment
Some applicants lie about their past employment to try to make themselves look better to prospective employers.
Employers that ask for employment verification checks will quickly see that an applicant has lied and will likely deny employment to him or her.
4. Dishonesty About Education
Like lies about employment, some applicants falsify information on their resumes about their educational attainment.
An education verification check will show employers when applicants have lied about obtaining degrees, certificates, or diplomas. Applicants who have lied will likely be turned down for employment.
5. Bad Driving Record
Applicants who apply to jobs for which they will be required to drive as a part of their duties will likely have to undergo driving records checks.
If an applicant has major traffic offenses or multiple violations on their driving records, the prospective employer will likely reject him or her based on potential liability and insurability issues.
How Much Is a Background Check in South Dakota?
If you send off to the state for a state-only criminal background check, you will have to submit a fee of $26.75 per requested report. However, this type of report will not reveal other relevant background information about employment, education, and more.
If you search online, you might find a vendor claiming to offer a free background check in South Dakota. You should avoid using this type of vendor because the information they provide is typically outdated, inaccurate, and non-compliant.
Relying on the information these types of vendors provide could place you at risk of lawsuits.
The best option is to work with a reputable background check provider like iprospectcheck. We have extensive resources and access to reliable databases, allowing us to return reliable, accurate, and legally compliant background check reports at an affordable cost.
We allow you to choose only the types of reports you need so that you can avoid paying for unnecessary information.
If you think you’ll need more than 50 reports per year, you can take advantage of our volume discounts. Call us today to receive a free, no-obligation quote: (888) 808-9997
How Long Does a South Dakota Background Check Take?
How you choose to complete an employment background check will control how long it takes to come back.
If you try to cobble together records on your own, the process could take weeks.
With iprospectcheck, our advanced research skills and extensive resources allow us to return employment background check reports in as little as a few hours.
Turn to iprospectcheck for Employment Background Checks in South Dakota
You should treat South Dakota pre-employment background checks as an integral part of your hiring process since they can help to protect workplace safety and reduce your liability risks.
At iprospectcheck, our extensive resources and advanced research skills help us to quickly return comprehensive, current, accurate, and FCRA-compliant background check reports to our clients in South Dakota.
Contact us today to learn more about our employment background check and clinical services and obtain a free quote.
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.