North Dakota Ban the Box

What Ban the Box Means in North Dakota

North Dakota's ban the box policy for public employment, under N.D.C.C. § 12.1-33-02.2, prohibits a public employer from inquiring into or considering an applicant's criminal record or criminal history until the applicant has been selected for an interview. The question about prior convictions is removed from the initial application — subject to exceptions for the Department of Corrections and Rehabilitation and public employers with a statutory duty to conduct a criminal history background check or otherwise consider criminal history.

The policy applies to public employers — state, county, or city governments and their instrumentalities or agencies (but not school districts). It does not extend to private employers, who remain free to include criminal history questions on their applications and run background checks at any stage of hiring.

What Private Employers Can Still Do

Most North Dakota job seekers encounter private-sector employers, and here the protections are limited. A private employer can:

• Ask about criminal history on the initial application
• Run a name-based background check through commercial screening companies
• Deny employment based on findings, subject to EEOC guidance on individualized assessment

Private screening companies scrape public court records and store them in their own databases. Even if your case was dismissed, the arrest record can appear on a commercial background report unless the court record has been sealed or closed.

This is why record sealing matters even in a ban-the-box state. The policy delays when the question is asked for state jobs, but it doesn't prevent the answer from being found. If your court records are publicly accessible, any employer running a background check will see them regardless of when they ask.

How Record Sealing Strengthens Your Position

Sealing your court record under Chapter 12-60.1 removes it from public court searches, which is the primary source commercial screening companies use. Once sealed, the current public record should not appear on standard name-based background checks used by landlords and most private employers, although a commercial screening company may retain an outdated copy.

For nonconviction records (dismissals and acquittals), HB 1166 now automatically closes court records 61 days after an order of nonconviction is entered, when that order is entered on or after August 1, 2025. Older nonconvictions require filing a fee-free petition.

The practical effect: ban the box delays the question for state jobs, and record sealing removes the answer from current public court data for both state and private employers, although a commercial vendor may retain an outdated copy. Used together, they create the strongest possible position when applying for work.

The Licensing Board Exception

One area where neither ban the box nor record sealing provides full protection is professional licensing. State licensing boards — such as the North Dakota Board of Nursing, the Real Estate Commission, and emergency medical services — have statutory authority to conduct fingerprint-based criminal history checks through the BCI and FBI under N.D.C.C. § 12-60-24. These checks bypass court-level sealing entirely. A sealed conviction still appears on a fingerprint-based licensing check.

This doesn't mean licensing is impossible with a record. Most boards conduct individualized reviews. But you need to understand that the sealed record will still be visible to them and plan your disclosure accordingly.

For a complete walkthrough of how sealing, nonconviction closure, and post-sealing enforcement work together in North Dakota's background check system, the North Dakota Expungement & Record Sealing Guide covers the full process from BCI record audit through court filing and private database disputes.

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