Preemployment Inquiries Law Summaries

35-9000 North Dakota, Preemployment Inquiries Law Summaries

Applicants for a teaching license must file a complete set of fingerprints and other information necessary to complete a state and nationwide criminal history check (Title 15, Ch. 15-38).

Foster home background check provisions are located at Title 50, Ch. 50-11.

Security background checks are required for certain employees of the state's information technology department (Ch. 54-59).

Cities and counties are also authorized to require applicants to submit fingerprints (S. 2223, L. 2003).

North Dakota's job reference liability law is located in the North Dakota Century Code at Chapter 34-02.

References are to the North Dakota Century Code.

WHAT THE EMPLOYER MUST DO

Background checks. --Teachers. --The education standards and practices board must check, or cause to be checked, the background of each applicant for initial licensure as a teacher. The board will require each applicant to file a complete set of fingerprints, taken by a law enforcement officer, or a properly trained designee of a law enforcement officer, and all other information necessary to complete a state and nationwide criminal history check with the bureau of criminal investigation for state processing and filing with the FBI for federal processing. All costs associated with the background check and with obtaining and processing the fingerprints are the responsibility of the applicant. Criminal history records provided to the board are confidential and closed to the public and may only be used by the board for determining an applicant's eligibility for licensure and obtaining documentation to support a denial of licensure (Secs. 15-38-18.2 and 15.1-13-14, as amended by H. 1225, L. 2001).

Foster homes. --Before licensing or approving a facility providing foster care for children or adults, the Department of Human Services must seek a criminal history record when required by this chapter. The department must consider any criminal history record information available at the time a licensing or approval decision is made. The department must determine whether a license may be issued to a facility that houses or employs any individual who has a criminal record (Sec. 50-11-02, as amended by S. 2096, L. 2001, effective August 1, 2001).

Conviction of an offense does not disqualify a person from licensure under this chapter unless the department determines that the offense has a direct bearing upon that person's ability to serve the public as the operator of a facility or that, following conviction of any offense, the person is not sufficiently rehabilitated (Sec. 50-11-02.1).

Except as provided in Sec. 50-11-06.9, each facility providing foster care for children must secure from any individual employed by the facility and any adult living in the facility, but not being provided care in the facility, identifying information other than fingerprints, that is appropriate to accomplish a statewide criminal history record investigation (Sec. 50-11-02.4, as amended by S. 2096, L. 2001, effective August 1, 2001).

Except as provided in Sec. 50-11-06.9, the department must secure from any individual employed by, or providing care in, an adult family foster care facility and any adult living in the facility, but not being provided care in the facility, identifying information other than fingerprints, that is appropriate to accomplish a statewide criminal history record investigation (Sec. 50-11-02.4, as amended by S. 2096, L. 2001, effective August 1, 2001).

Fingerprints need not be taken and a nationwide background check need not be made if an individual (Sec. 50-11-02.4, as amended by S. 2096, L. 2001, effective August 1, 2001):

(1) Has resided continuously in North Dakota for 11 years or since reaching age 18, whichever is less;

(2) Is on active U.S. military duty or has resided continuously in North Dakota since receiving an honorable discharge; or

(3) Is excused from providing fingerprints under rules adopted by the department.

The department must verify that sufficient identifying information has been provided. Upon verification, the department must submit that information to the bureau of criminal investigation. The bureau must provide any criminal history record information that may lawfully be made available under Ch. 12-60 to the department. The department must provide a copy of any response received from the bureau to the facility (Sec. 50-11-02.4, as amended by S. 2096, L. 2001, effective August 1, 2001).

The department must pay the cost of securing any criminal history record information made available under Ch. 12-60 (Sec. 50-11-02.4, as amended by S. 2096, L. 2001, effective August 1, 2001).

Except as provided in Secs. 50-11-02.4 and 50-11-06.9, each facility providing foster care for children must secure, from a law enforcement agency or any other agency authorized to take fingerprints, two sets of fingerprints, and must provide all other information necessary to secure state criminal history record information and a nationwide background check under federal law from (Sec. 50-11-06.08, as amended by S. 2096, L. 2001, effective August 1, 2001):

(1) Any individual employed by the facility; and

(2) Any adult living in the facility, but not being provided care in the facility.

Upon receipt of all fingerprints and necessary information relating to a license request, the department must submit the information and fingerprints to the bureau of criminal investigation. The department shall provide a copy of any response received from the bureau to the facility (Sec. 50-11-06.08, as amended by S. 2096, L. 2001, effective August 1, 2001).

The bureau of criminal investigation must request a nationwide background check from the FBI and, upon receipt of a response, provide the response of the FBI to the department. The bureau shall also provide any criminal history record information that may lawfully be made available under Ch. 12-60 to the department (Sec. 50-11-06.08, as amended by S. 2096, L. 2001, effective August 1, 2001).

The department must pay the cost of securing fingerprints, any criminal history record information made available under Ch. 12-60, and a nationwide background check (Sec. 50-11-06.08, as amended by S. 2096, L. 2001, effective August 1, 2001).

An agency that takes fingerprints as provided under this section may charge a reasonable fee to offset the costs of the fingerprinting (Sec. 50-11-06.08, as amended by S. 2096, L. 2001, effective August 1, 2001).

Except as provided in Secs. 50-11-02.4 and 50-11-06.9, the department must secure from a law enforcement agency or any other agency authorized to take fingerprints, two sets of fingerprints and all other information necessary to secure state criminal history record information and a nationwide background check under federal law from (Sec. 50-11-06.8, as amended by S. 2096, L. 2001, effective August 1, 2001):

(1) Any individual employed by, or providing care in, an adult family foster care facility; and

(2) Any adult living in an adult family foster care facility, but not being provided care in the facility.

A criminal history record investigation may not be required, under Sec. 50-11-06.8 or Sec. 50-11-02.4, of a family foster care home for children or of a family foster care home for adults licensed or approved on August 1, 1999, for so long as that home remains continuously licensed or approved (Sec. 50-11-06.9, as amended by S. 2096, L. 2001, effective August 1, 2001).

Information technology department. --The chief information officer shall require as a condition of employment with the information technology department that individuals who have unescorted physical access to the facilities or other security sensitive areas of the department designated by the chief information officer be fingerprinted. The chief information officer shall ensure that the fingerprints are submitted to the bureau of criminal investigation and the FBI for verification of the identity of the individuals and to obtain records of criminal arrests and convictions (Sec. 1, H. 1252, L. 2003).

City or county employees. --The governing body of a city by ordinance or a county by ordinance or resolution may require each applicant for a specified occupation with the city or county to provide two sets of fingerprints. The city or county may submit these fingerprints to the bureau of criminal investigation for nationwide criminal history record information that includes resubmission of the fingerprints by the bureau of criminal investigation to the FBI. FBI criminal history record information obtained by a city or county is confidential. For a request for nationwide criminal history record information made by the city or county under this section, the bureau of criminal investigation is the sole source to receive the fingerprint submissions and responses from the FBI. A person who takes fingerprints under this section may charge a reasonable fee to offset the cost of fingerprinting. The bureau of criminal investigation may charge appropriate fees for criminal history information (Sec. 1, S. 2223, L. 2003).

Commercial drivers. --The Director of the Department of Transportation shall furnish, upon request and payment of a specified fee, full information regarding the driving record of a person who has been issued a commercial driver's license to an employer or to a prospective employer if the person has given written consent to the prospective employer for this information (Sec. 1, S. 2150, L. 2003).

Vulnerable adults. --Any person offering criminal background checks for compensation, for the purpose of screening applicants seeking a position in which the applicant is responsible for providing care for a vulnerable adult, shall utilize the Bureau of Criminal Investigation Statewide Criminal History Database in addition to any other compiled information (Sec. 12-60-16.11, as added by H. 1484, L. 2005, enacted April 12, 2005).

Job reference liability. --An employer, or an employer's agent, who truthfully discloses date of employment, pay level, job description and duties, and wage history about a current or former employee to a prospective employer of the employee is immune from civil liability for the disclosure and the consequences of the disclosure of that information (H. 1193, L. 1997, effective August 1, 1997).

An employer, or an employer's agent, who discloses information about a current or former employee's job performance to a prospective employer of the employee is presumed to be acting in good faith. Unless lack of good faith is shown, the employer or employer's agent is immune from civil liability for the disclosure and the consequences of providing that information. The presumption of good faith may be rebutted by a preponderance of the evidence that the information disclosed was (H. 1193, L. 1997, effective August 1, 1997):

(1) knowingly false;

(2) disclosed with reckless disregard for the truth;

(3) deliberately misleading; or

(4) rendered with malicious purpose.

The immunity provided for above does not apply if the information provided is in violation of a nondisclosure agreement, or was otherwise confidential according to applicable law (H. 1193, L. 1997, effective August 1, 1997).

Sample reference check form. --

North Dakota Sample Reference Check Form -p. 1

North Dakota Sample Reference Check Form -p. 2