South Dakota ban-the-box law: no statute, sealed records and what still applies

South Dakota has no ban-the-box law for private employers, state agencies or local governments, as of October 2026. The Legislature's bill lists for the 2025 and 2026 sessions contain no bill on when employers may ask about criminal history, and the state's Human Relations Act does not list a criminal record among the protected traits in its employment section, SDCL 20-13-10. We also found no ordinance in Sioux Falls or Rapid City. The rules that do shape the question are about records, not timing: state criminal files are closed without the candidate's fingerprints and consent, and a candidate may lawfully leave out an expunged arrest or a sealed suspended sentence.

Does South Dakota have a ban-the-box law?

No. Our South Dakota background check guide and South Dakota hiring checklist found no statute, and two official sources point the same way:

• The anti-discrimination statute. SDCL 20-13-10 makes it an unfair practice to refuse to hire "because of race, color, creed, religion, sex, ancestry, disability, or national origin." A criminal record is not on the list.
• The bill lists. The Legislature's lists for the 2025 session and the 2026 session include bills on criminal background checks for school employees and licensing compacts, but none on when employers may ask about criminal history.

What about state and local government jobs?

We found no statute and no governor's executive order restricting when South Dakota's state agencies, counties or cities ask about criminal history. That makes South Dakota different from its neighbors Nebraska and North Dakota, which both have statutes for public employers. A government client may still have an internal policy, so ask for it in writing before you build a screen.

How should a South Dakota application ask about records?

South Dakota has no rule on when to ask, but it has two rules that change what a truthful answer looks like:

• Expunged arrests. A court may expunge an arrest record a year after an arrest with no charge or after a dismissal, or after an acquittal. Under SDCL 23A-3-32, the order restores the person "to the status the person occupied before the person's arrest," and no one "shall be held thereafter under any provision of any law to be guilty of perjury or of giving a false statement" for not reciting the arrest, indictment or trial "in response to any inquiry made of the person for any purpose."
• Suspended imposition of sentence. When a person on a suspended imposition is discharged and the case dismissed, SDCL 23A-27-17 has the court seal the records, other than nonpublic records the Division of Criminal Investigation keeps, and restores the person's prior status.

So a South Dakota application that asks "Have you ever been arrested or convicted?" will get answers that lawfully leave these out, and a candidate who leaves them out has not lied. Ask about convictions only, excluding expunged and sealed records, and ask late. The background check guide also covers diversion expungements and the automatic removal of some minor offenses.

Where do South Dakota employers get records?

State criminal history held by the Attorney General is confidential under SDCL 23-5-11, and the Division of Criminal Investigation releases a record to an employer through a fingerprint request the person authorizes under SDCL 23-5-12. Court records are public through the Unified Judicial System's Public Access Record Search, for a fee per search. Because the state file needs the candidate's fingerprints and signature, it naturally comes late in a process; a court search does not, which is why the timing question comes back to policy.

What federal rules apply in South Dakota?

• Title VII. Employers with 15 or more employees are covered (42 U.S.C. 2000e). A record-based exclusion that falls more heavily on a protected group can be challenged under the disparate impact provision, 42 U.S.C. 2000e-2(k), and courts decide those claims.
• EEOC guidance rescinded. On October 28, 2026 the EEOC voted to rescind its 2012 arrest and conviction records guidance. Its release says Title VII still prohibits race and national origin discrimination, including requirements that are proxies for it. A review using the Green factors from the 1975 Eighth Circuit case, South Dakota's own federal circuit (the nature and gravity of the offense, the time since it and the nature of the job), is still the safe practice.
• Fair Chance Act. Federal contractors may not request criminal history for contract-related positions before a conditional offer, with exceptions (41 U.S.C. 4714); federal agencies follow 5 CFR part 920.
• FCRA. Disclosure and written authorization before a screening company's report, and a pre-adverse action notice with the report before rejecting anyone because of it (FTC guide).

What should recruiters and staffing agencies do in South Dakota?

1. Get the client's policy. With no state rule, the client's written policy decides when criminal history is considered and who weighs it.
2. Fix the question. Ask about convictions, not arrests, and exclude expunged arrests and sealed suspended sentences.
3. Check the job's location. A role in Sioux Falls may be filled by someone who will work across the line; jobs located in Minnesota can fall under its private-employer law.
4. Schools. Accredited schools fingerprint new hires over 18 under SDCL 13-10-12, and the new hire may work temporarily while results are pending; plan placements around that.
5. Keep records out of your notes. See what not to write in interview notes.
6. Send FCRA notices every time. See the FCRA background check process.

Script for a candidate who asks whether to mention a dismissed arrest: "I don't screen on criminal history. If the employer asks later, South Dakota law says an expunged arrest doesn't have to be mentioned, but check your own court paperwork or a lawyer to be sure yours was expunged or sealed."

Questions to settle with a South Dakota client at intake

• Is the client a private employer, a state agency, a city or county, or a federal contractor filling a contract-related job?
• Where will the person work? If the job is located in Minnesota or another state with a law, that state's rule may apply.
• Does any law require a check or disqualify people with certain records for this position, such as an accredited school's fingerprint check? Which one?
• At what stage does the client consider criminal history, and who reviews a record against the duties of the job?
• Does the application ask about arrests, or only convictions, and does it exclude expunged and sealed records?
• Who orders the check, who sends the FCRA notices, and how long does the candidate get to respond?

Without a state law to point to, these answers are the process. Write them into the job order so every recruiter on the desk handles the role the same way, and so the client can show it applied one standard to every candidate.

South Dakota ban-the-box rules at a glance

For the states that do regulate timing, see ban-the-box laws and interview questions. Other South Dakota rules for the same hire: E-Verify, staffing agency licensing and recording interviews.