North Dakota ban-the-box law: N.D.C.C. 12.1-33-02.2 for public employers

North Dakota has a ban-the-box law for public employers only. N.D.C.C. 12.1-33-02.2, enacted by House Bill 1282 and signed on March 12, 2019, says a public employer "may not inquire into or consider" an applicant's criminal record or history "until the applicant has been selected for an interview." Public employer means the state, counties, cities and their agencies, including park districts but not school districts. As of October 2026 there is no statewide law, and no city ordinance we found, that limits private employers. For a recruiter, the line is simple: government clients wait for the interview stage; private clients follow federal law and their own policy.

What does North Dakota's ban-the-box law say?

The full section, N.D.C.C. 12.1-33-02.2, "Public employment - Consideration of criminal record," has four parts:

1. The rule. "A public employer may not inquire into or consider the criminal record or criminal history of an applicant for public employment until the applicant has been selected for an interview by the employer."
2. Exclusions. It does not apply to the Department of Corrections and Rehabilitation, or to "a public employer that has a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee's criminal history during the hiring process."
3. Notice allowed. It does not stop a public employer "from notifying an applicant that law or the employer's policy will disqualify an individual with a particular criminal history background from employment in particular positions."
4. Definition. "Public employer" means "the state or a county or city government, or an instrumentality or agency of the state or of a county or city government," and "includes a park district but does not include a school district."

The bill came from the 2019 session as HB 1282, "relating to limitations on public employer consideration of criminal background." The bill actions show the Governor signed it on March 12, 2019 and it was filed with the Secretary of State on March 13.

What makes North Dakota's version different?

• It covers "consider," not just "ask." Many ban-the-box laws only remove a question from the application. North Dakota's also bars a covered employer from considering a record before the interview selection, which reads as covering record lookups before the shortlist as well as questions.
• The trigger is selection for an interview, not the interview itself and not a conditional offer. Once the employer picks someone to interview, it may ask.
• It has no penalty clause. The section creates no fine, complaint process or private right of action of its own. Compliance still matters for a government client, which is bound by the statute.
• School districts are out. They follow their own background check statutes; teacher licensing checks run through the Education Standards and Practices Board, as our background check guide explains.

Which public jobs are exempt?

Any public employer with "a statutory duty to conduct a criminal history background check" is outside the rule. North Dakota's central list of fingerprint check authorities is N.D.C.C. 12-60-24. Two parts of it matter here. Subsection (2)(a) lets the governing body of a city or county, "by ordinance or resolution," request a statewide and nationwide check "for a final applicant for a specified occupation with the city or county." And subsection (1)(b) requires people subject to those checks to give written consent, fingerprints and "a statement indicating whether the applicant or employee has ever been convicted of a crime." Whether a particular city job falls into the exclusion depends on whether a statute imposes a duty to check for that position, so ask the client to name the statute.

What about private employers and cities?

Private employers are not covered, and we found no Fargo or Bismarck ordinance extending the rule to them. The city governments themselves are public employers under the statute. Our North Dakota background check guide and North Dakota hiring checklist say the same. We did not find a 2025 bill that would extend the rule to private employers.

One state rule limits what a private employer can learn. Under N.D.C.C. 12-60-16.6, the Bureau of Criminal Investigation releases to non-criminal-justice requesters only records that have not been purged or sealed and that are convictions or reportable events from the three years before the request, so older arrests that did not lead to a conviction stay out of a state check.

How do licensing boards treat convictions?

N.D.C.C. 12.1-33-02.1 covers state licenses, permits, certificates and registrations. A person may not be disqualified "solely because of prior conviction of an offense," but may be denied if not "sufficiently rehabilitated" or if the offense "has a direct bearing" on the ability to serve the public in the occupation. Boards consider the nature of the offense, evidence of rehabilitation and the time elapsed; five years after final discharge without a new conviction "shall be deemed prima facie evidence of sufficient rehabilitation." A disqualification must be in writing, state the evidence and reasons, and go to the applicant by certified mail. For a candidate whose offer depends on a license, that is the review to plan around.

What federal rules apply in North Dakota?

• Title VII covers employers with 15 or more employees (42 U.S.C. 2000e); its disparate impact provision, 42 U.S.C. 2000e-2(k), reaches record-based exclusions, and courts decide those claims.
• The EEOC rescinded its 2012 arrest and conviction guidance on October 28, 2026. Title VII still bars race and national origin discrimination, including proxies for it, and the rescission leaves state laws like 12.1-33-02.2 untouched. The Green factors from the 1975 Eighth Circuit case, a court from North Dakota's own federal circuit (the nature and gravity of the offense, the time since it and the nature of the job), remain the safe basis for a decision.
• The Fair Chance Act bars federal contractors from requesting criminal history for contract-related positions before a conditional offer, with exceptions (41 U.S.C. 4714); federal agencies follow 5 CFR part 920.
• The FCRA requires disclosure, authorization and pre-adverse action notice for screening company reports (FTC guide).

What should recruiters and staffing agencies do in North Dakota?

1. Sort the client at intake. State agency, county, city or park district: the interview-selection rule applies. School district, the Department of Corrections and Rehabilitation, or a job with a statutory check duty: excluded. Private: no state rule.
2. For public clients, keep records out of the shortlist. No application question, no public-record lookups and no screen questions until the employer selects the candidate for an interview. The statute names the employer, not its agents, but a recruiter running the early screen is doing the employer's work, so follow it.
3. Use the notice the law allows. A posting may say that law or policy disqualifies people with a particular record from this position, if that is true.
4. For private clients, keep it off your screen anyway. See what not to write in interview notes.
5. Mind Minnesota. Fargo-Moorhead and Grand Forks-East Grand Forks roles may sit across the river, where Minnesota's law covers private employers.
6. Send the FCRA notices. See the FCRA background check process.

Script for a county client: "North Dakota's statute says you can't ask about or consider records until you've picked someone to interview. Let's leave it off the application and my screen, and you can ask the candidates you invite."

North Dakota ban-the-box rules at a glance

For other states and scripts, see ban-the-box laws and interview questions; neighbors South Dakota and Montana have no law. Other North Dakota rules for the same hire: drug testing, staffing agency licensing and recording interviews.