Montana background check laws for employers

At a glance

The Montana rules on each topic, in one line. Federal law applies to every topic.

When you may ask about criminal history

Who it covers: N/a

No state ban-the-box rule for private or public employers. A Montana employer may ask about criminal history at any stage.

Mont. Code Ann. 39-2-710 (negligent-hiring protection, 2017)

What a background check report may include

Who it covers: Consumer reporting agencies furnishing reports on Montana consumers; no employer-size threshold

Montana’s consumer reporting statute bars a consumer reporting agency from reporting records of arrest, indictment, or conviction more than 7 years after disposition, release, or parole. Paid tax liens, collection accounts, and any other adverse item also drop off after 7 years. Suits and judgments drop off after 7 years or when the statute of limitations runs, whichever is longer. Bankruptcies drop off after 14 years. The statute has no salary threshold and no carve-out for convictions. It dates from 1975 and has not been amended. A CRA that reports adverse public-record items for employment must either notify the consumer at the time or keep strict procedures so the record is complete and up to date (31-3-126).

Mont. Code Ann. 31-3-112(5) · Mont. Code Ann. 31-3-112(1) · Mont. Code Ann. 31-3-112(2) · Mont. Code Ann. 31-3-126

Sealed and expunged records

Who it covers: Misdemeanor convictions; one petition per lifetime

Montana has petition-based expungement of misdemeanor convictions only (Title 46, ch. 18, part 11). A person may petition once in a lifetime. Expungement is presumed if the person has no new conviction for 5 years after finishing the sentence, including fines and treatment, and has no pending charges. It is not presumed for assault, partner or family member assault, stalking, sexual assault, protective-order violations, or DUI. An expungement order directs agencies to permanently seal arrest, investigation, detention, and court records, and the Department of Justice to expunge its records. There is no automatic sealing and no felony expungement. The statute does not say what an employer may ask about an expunged record.

Mont. Code Ann. 46-18-1104(2) · Mont. Code Ann. 46-18-1110(2)(a) · Mont. Code Ann. 46-18-1107(1) · Mont. Code Ann. 46-18-1108(1)

Cannabis use and testing

Who it covers: All Montana employers; off-premises, nonworking-hours use

Marijuana is a ‘lawful product’ under Montana’s off-duty lawful-product statute, amended by HB 701 (2021). An employer may not refuse to hire or discriminate against an individual because the individual legally uses marijuana off the employer’s premises during nonworking hours. The protection does not apply where use affects the individual’s ability to do the job or the safety of other employees, conflicts with a bona fide occupational qualification, or where the employer acts under an established substance-abuse or alcohol program or policy, professional contract, or collective bargaining agreement. The Marijuana Regulation and Taxation Act adds that an employer need not permit or accommodate marijuana in any workplace or on its property. An employer may decline to hire, discharge, or discipline someone for violating a workplace drug policy or for being intoxicated at work. The Act creates no wrongful-discharge or Human Rights Act discrimination claim. An employer may also bar medical marijuana use by contract. Pre-employment testing remains allowed under the Workforce Drug and Alcohol Testing Act for covered positions.

Exceptions

• Use that affects job performance or the safety of other employees (39-2-313(3)(a)(i))
• Use that conflicts with a bona fide occupational qualification (39-2-313(3)(a)(ii))
• Individuals with personal professional-service contracts limiting product use (39-2-313(3)(b))
• Nonprofit employers whose purpose is to discourage use of the product (39-2-313(3)(c))
• Employer action under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement (39-2-313(4))
• Workplace drug policies: employers need not permit or accommodate use in any workplace, and may decline to hire or discipline for a policy violation (16-12-108(5)(a)-(c))
• No cause of action under the Wrongful Discharge from Employment Act (39-2-904) or the Human Rights Act (49-1-102) (16-12-108(5)(e))

Mont. Code Ann. 39-2-313(1) · Mont. Code Ann. 39-2-313(2) · Mont. Code Ann. 39-2-313(4) · Mont. Code Ann. 16-12-108(5)(a) · Mont. Code Ann. 16-12-108(5)(b) · Mont. Code Ann. 16-12-108(5)(c) · Mont. Code Ann. 16-12-108(5)(e)

Drug and alcohol testing procedures

Who it covers: Any employer with one or more employees located in or doing business in Montana; testing limited to employees in the defined position categories

Montana’s Workforce Drug and Alcohol Testing Act (39-2-205 to 39-2-211) limits who can be tested and how. Testing is allowed only for ’employees’ as defined: individuals working in a hazardous work environment, a security position, or a position affecting public safety or health, requiring driving, or involving fiduciary responsibility. An employer must adopt a written policy and make it available to employees 60 days before it takes effect; procedures must meet 49 CFR part 40 chain-of-custody standards. Allowed tests: pre-hire for prospective employees, random under a defined procedure, follow-up after a verified positive (up to 1 year), reasonable suspicion (with supervisor training), and post-accident. The employer must give the tested person a copy of the report, arrange a split-sample retest on request, and allow rebuttal. No adverse action may follow if the employee gives a reasonable explanation or medical opinion that the result was not caused by illegal drug use or alcohol.

Exceptions

• Independent contractors and elected local officials are not ’employees’ (39-2-206(4)(b))
• Samples covered by 49 CFR part 40 follow federal procedures (39-2-207(1))
• 16-12-108 (marijuana) overrides the adverse-action limit in 39-2-210

Mont. Code Ann. 39-2-206(4)(a) · Mont. Code Ann. 39-2-207(1) · Mont. Code Ann. 39-2-208(1) · Mont. Code Ann. 39-2-209 · Mont. Code Ann. 39-2-210

The state consumer reporting law

Who it covers: Consumer reporting agencies and users of consumer reports in Montana

Montana’s consumer reporting law is Mont. Code Ann. Title 31, ch. 3, part 1 (31-3-101 to 31-3-153). It carries the 7-year/14-year obsolescence rule (31-3-112). Investigative consumer reports: a person must give the consumer written notice within 3 days of requesting one, but this notice is not required when the report is for a job the consumer applied for (31-3-113(1)(b)). On written request, the person must disclose the nature and scope of the investigation within 5 days (31-3-113(2)). A CRA reporting adverse public records for employment must notify the consumer at the time, with the user’s name and address, or keep strict procedures for complete, up-to-date records (31-3-126). A user that denies employment based on a consumer report must tell the consumer and give the CRA’s name and address (31-3-131(1)). No CRA registration requirement appears in the part.

Mont. Code Ann. Title 31, ch. 3, part 1 (section index) · Mont. Code Ann. 31-3-112 · Mont. Code Ann. 31-3-113(1)(b) · Mont. Code Ann. 31-3-131(1)

Where federal law alone applies

We found no Montana rule for private employers on these topics. The FCRA and other federal laws still apply.

• Credit checks
• Salary history

Adverse action notices

Before you reject or act against someone because of a background check report, the FCRA requires a pre-adverse action notice, a wait, and then a final notice. The adverse action letter generator writes both notices and adds the Montana requirements where they apply.

The waiting period calculator gives the date under the federal rule.

Paperwork at hire

Besides the federal Form I-9 and W-4, Montana sets these for each new hire.

• State withholding. Have each new hire complete Form MW-4 when they start; if filing status is left blank, withhold at the single rate until a new MW-4 is given. Form MW-4
• New hire report. Report each new hire to Montana within 20 days. State new hire reporting
• Notices at hire. Montana adds none beyond the federal forms that every employer gives.

Build the new hire checklist for Montana, with city rules, special cases and a due date for each item.

Sources

• Mont. Code Ann. 39-2-710 (negligent-hiring protection, 2017)
• Mont. Code Ann. 31-3-112(5)
• Mont. Code Ann. 31-3-126
• Mont. Code Ann. 46-18-1104(2)
• Mont. Code Ann. 46-18-1110(2)(a)
• Mont. Code Ann. 46-18-1107(1)
• Mont. Code Ann. 46-18-1108(1)
• Mont. Code Ann. 39-2-313(1)
• Mont. Code Ann. 16-12-108(5)(a)
• Mont. Code Ann. 39-2-206(4)(a)
• Mont. Code Ann. 39-2-207(1)
• Mont. Code Ann. 39-2-208(1)
• Mont. Code Ann. 39-2-209
• Mont. Code Ann. 39-2-210
• Mont. Code Ann. Title 31, ch. 3, part 1 (section index)
• Mont. Code Ann. 31-3-113(1)(b)
• Mont. Code Ann. 31-3-131(1)

Last reviewed October 20, 2026 · General information, not legal advice.

After the hire

Once a background check clears, payroll and onboarding come next. Rippling (paid link) runs payroll, benefits and onboarding from one employee record.