State law · For employers
South Dakota background check laws for employers
What South Dakota law says about background checks for employment, beyond the federal Fair Credit Reporting Act (FCRA). Each section shows the rule, who it covers, its exceptions and the law it comes from.
Reviewed
Primary sources
8 laws cited
At a glance
The South Dakota rules on each topic, in one line. Federal law applies to every topic.
| Topic | South Dakota rule |
|---|---|
| Criminal history questions | No state rule. Federal law applies. |
| Limits on what a report includes | No state rule. Federal law applies. |
| Sealed and expunged records | South Dakota has a narrow automatic rule. |
| Credit checks | No state rule. Federal law applies. |
| Salary history | No state rule. Federal law applies. |
| Cannabis | Medical cannabis only. A registered qualifying patient gets the same rights with an employer and in employer drug testing as a person prescribed a pharmaceutical drug. |
| Drug testing procedures | No state statute constrains private-employer drug-testing procedures. |
| State consumer reporting law | No state rule. Federal law applies. |
Sealed and expunged records
Who it covers: All employers; these rules govern what public court records show and what a person must disclose.
South Dakota has a narrow automatic rule. A charge or conviction in a case where the highest charge was a petty offense, a municipal ordinance violation, or a Class 2 misdemeanor is removed from the defendant’s public record after five years if conditions are met. Arrest records are expunged only by court order on a motion. A pardon seals the record. A person whose record is expunged, sealed on a pardon, or sealed after a suspended imposition of sentence may decline to acknowledge the arrest or case without perjury.
Exceptions
- Case records stay available to court personnel and by court order, and may be used for sentence enhancement (23A-3-34)
- Nonpublic records stay with the Division of Criminal Investigation for law enforcement, prosecutors, and courts (23A-3-31)
SDCL 23A-3-34 · SDCL 23A-3-27 · SDCL 23A-3-32 · SDCL 24-14-11 · SDCL 23A-27-17
Cannabis use and testing
Who it covers: All employers; protections run to registered qualifying patients.
In force since: July 1, 2021
Medical cannabis only. A registered qualifying patient gets the same rights with an employer and in employer drug testing as a person prescribed a pharmaceutical drug. An employer may still refuse to hire, or take adverse action, based solely on a positive cannabis-metabolite test if the job is safety-sensitive. Employers need not allow cannabis at work or let anyone work under the influence, may keep a drug-free workplace policy with testing, and face no cause of action for enforcing it in compliance with the chapter.
Exceptions
- Safety-sensitive jobs: adverse action or refusal to hire based solely on a positive metabolite test is allowed (34-20G-22)
- Drug-free workplace policies and testing that comply with state and federal law (34-20G-24)
SDCL 34-20G-22 · SDCL 34-20G-22 · SDCL 34-20G-24 · SDCL 34-20G-1(24)
Drug and alcohol testing procedures
No state statute constrains private-employer drug-testing procedures.
Where federal law alone applies
We found no South Dakota rule for private employers on these topics. The FCRA and other federal laws still apply.
- Criminal history questions
- Limits on what a report includes
- Credit checks
- Salary history
- State consumer reporting law
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 South Dakota 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, South Dakota sets these for each new hire.
- State withholding. No state withholding certificate: South Dakota has no state income tax. Collect only the federal Form W-4.
- New hire report. Report each new hire to South Dakota within 20 days. State new hire reporting
- Notices at hire. South Dakota adds none beyond the federal forms that every employer gives.
Build the new hire checklist for South Dakota, with city rules, special cases and a due date for each item.
Sources
- SDCL 23A-3-34
- SDCL 23A-3-27
- SDCL 23A-3-32
- SDCL 24-14-11
- SDCL 23A-27-17
- SDCL 34-20G-22
- SDCL 34-20G-24
- SDCL 34-20G-1(24)
Last reviewed · 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.