['Recruiting and hiring']
['Negligent Hiring / Retention']
06/12/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
In North Dakota, an employer/former employer may disclose to a prospective employer information about employee/former employee dates of employment, pay, job description, job duties, and wage history, unless he/she is not acting in good faith. An employer/former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/employee disclosed:
- Knowingly false information,
- Information recklessly,
- Intentionally misleading information,
- Information with malicious intent.
Immunity does not apply to violations of nondisclosure agreements or providing confidential information.
Using force, threat, or intimidation to prevent a person from obtaining or continuing employment is a crime. Maliciously interfering or hindering a person from obtaining or enjoying employment is a crime. Exchanging blacklists is prohibited.
Arrest record inquiries
Both the EEOC and North Dakota have no laws or regulations specifically prohibiting arrest record inquiries. However, the “Employment Applications and Interviews” guidelines published by the North Dakota Department of Labor say that the employer may not ask if an applicant has been arrested.
This is more stringent than the EEOC’s Notice N-915-061, which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
Both the EEOC and North Dakota have no laws or regulations specifically prohibiting conviction record inquiries. However, the “Employment Applications and Interviews” guidelines published by the North Dakota Department of Labor only say that the employer may ask if an applicant has been convicted of a felony. The guidelines recommend that the employer must consider whether an inquiry would unlawfully screen out protected groups and whether the inquiry is needed to determine competence and qualifications. State bureaus may only disseminate conviction records upon written request if they have not been sealed or purged and if the request matches only one person. Two identifying items must be provided with the request.
This is somewhat similar to the EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
North Dakota Department of Labor
Arrest record inquiries
North Dakota Bureau of Criminal Investigation
North Dakota Human Rights Division
Conviction record inquiries
North Dakota Bureau of Criminal Investigation
North Dakota Human Rights Division
Regulations
Employer immunity from disclosure claims
North Dakota Century Code §34-01-04, Intimidation, force, and treats against employees prohibited – penalty
North Dakota Century Code §34-01-05, Intimidation, force, and threats against employers prohibited – penalty
North Dakota Century Code §34-01-06, Hindering person from obtaining or enjoying employment – penalty
North Dakota Century Code §34-02-18, Immunity for providing employment reference
North Dakota Constitution, Article XII, Section 17, Corporations other than municipal
Arrest record inquiries
North Dakota Century Code, §12-60-16.6, Criminal history record information
Conviction record inquiries
North Dakota Century Code, §12-60-16.6, Criminal history record information
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.