Montana employers who run background checks on applicants or employees operate under two layers of law. The federal Fair Credit Reporting Act sets the baseline for any employer that uses a consumer reporting agency to screen candidates, and Montana adds a smaller set of state specific rules on top of that baseline. Montana has not passed a statewide ban the box law and does not regulate most parts of the hiring background check process beyond what federal law already requires. This guide walks through what actually applies, what does not, and where employers still need to rely on the federal framework alone.
The federal baseline every Montana employer must follow
Any employer in Montana that orders a background check through a consumer reporting agency, including Reveal Background, is a “user” of consumer reports under the FCRA, and the same core duties apply regardless of state. Before ordering a report, the employer must give the applicant a clear, standalone written disclosure that a consumer report may be obtained, and get the applicant’s written authorization. These requirements come directly from 15 U.S.C. 1681b, the FCRA’s permissible purpose section, which also requires a certification to the reporting agency that the employer will follow the disclosure, authorization, and adverse action steps.
If information in the report may lead the employer to not hire, not promote, or otherwise take an adverse action, the employer must send a pre-adverse action notice with a copy of the report and a copy of the consumer’s Summary of Rights before the decision is final, then wait a reasonable period before sending a final adverse action notice if the decision stands. Separately, 15 U.S.C. 1681c limits how long certain negative information, including most arrest records that did not result in a conviction, can appear on a consumer report, generally to seven years, though this limit does not apply the same way to criminal convictions. Employers who ask a consumer reporting agency to verify public record information, such as a criminal court record, directly with the source rather than relying only on a database should also be aware of the notice obligations in 15 U.S.C. 1681k, which requires either contemporaneous notice to the consumer or strict procedures to keep the information complete and up to date.
None of these federal duties disappear because an employer is based in Montana. They are the floor, and Montana law neither raises nor lowers most of that floor for private employers.
What Montana does and does not regulate
Montana has no statewide ban the box law for private employers. Unlike states that restrict when an employer may ask about criminal history on an application or before a conditional offer, Montana imposes no such timing restriction on private sector hiring. Employers who operate in multiple states should not assume Montana mirrors a neighboring state’s ban the box rule, because it generally does not.
Where Montana law does matter is in three narrower areas: who can see criminal history record information held by the state, how a person may get a misdemeanor conviction expunged, and how Montana’s unusual wrongful discharge statute can affect a termination decision that follows a background check.
| Topic | Montana rule | Source |
|---|---|---|
| Ban the box | No statewide law for private employers | No statute found; confirmed by absence in Montana Code Annotated Title 39 |
| Criminal history record information held by the state | Dissemination of non public criminal history record information is restricted by statute | 44-5-302, Montana Code Annotated |
| Expungement of misdemeanors | A person may petition a district court once in their life to expunge qualifying misdemeanor records | 46-18-1104, Montana Code Annotated |
| Wrongful discharge exposure | After probation, a discharge not based on good cause, or one that violates written personnel policy, can support a wrongful discharge claim | 39-2-904, Montana Code Annotated |
| Drug testing statute specific to pre employment background screening | No Montana statute found that separately regulates private employer background check drug testing beyond general employment and safety law | Not found in Montana Code Annotated search |
Montana’s criminal history record information statute
Montana Code Annotated 44-5-302 governs how the state disseminates criminal history record information that is not public criminal justice information, meaning records that are not simple public court filings. The statute sets conditions under which agencies holding this information, including the Montana Department of Justice, may release it and to whom. Employers who request a state level criminal history check directly from Montana rather than through a private consumer reporting agency are operating under this statute, and the state can limit what is released and for what purpose. This is separate from, and in addition to, the FCRA duties that apply when the employer uses a reporting agency. See 44-5-302, Montana Code Annotated.
Montana does not have a separate statewide statute that automatically seals adult felony convictions the way some states do, so employers evaluating felony history should expect it to generally remain visible in a Montana criminal record search unless a specific court order addressed it.
Expungement of misdemeanors under Montana law
Montana allows a person convicted of one or more misdemeanor offenses to petition a district court for expungement, but only once during that person’s lifetime, and only if the person has not already had records expunged under this part. The petitioner must be fingerprinted to confirm identity as part of the process, and the court decides whether expungement is presumed or not presumed depending on the offense and the person’s record since the conviction. For a Montana employer, this means a misdemeanor that shows up in an older record search may later be legally expunged and should no longer appear on a properly updated background check. Employers should not assume every misdemeanor remains visible indefinitely, and should not penalize a candidate for a gap in explaining an old misdemeanor if the candidate states it was expunged. The governing rule is at 46-18-1104, Montana Code Annotated, eligibility for misdemeanor expungement.
Montana’s Wrongful Discharge From Employment Act
Montana is one of the only states with a statute that limits at will employment once a worker completes an employer’s probationary period. Under 39-2-904, a discharge is wrongful if it was not for good cause and the employee had completed the probationary period, if it materially violated the employer’s own written personnel policy and that violation deprived the employee of a fair opportunity to remain employed, if it was retaliation for refusing to violate public policy or for reporting a violation, or if it was based solely on a legally protected exercise of free speech. This matters directly for background check decisions: if a Montana employer discovers disqualifying information after a worker has already passed probation, the termination should be handled as a good cause decision under this statute and should follow the employer’s own written policy consistently, because a termination that conflicts with the employer’s stated policy can itself create exposure under 39-2-904, Montana Code Annotated. This statute has no equivalent for decisions made before or during the initial hiring screen, where ordinary at will and anti discrimination rules apply instead.
Licensing boards and sector specific screening
Many Montana jobs carry their own licensing requirements that layer additional background check rules on top of general employment law, such as fingerprint based checks for occupations involving children, health care, financial services, or public safety. Those requirements come from the specific licensing board or agency for that occupation rather than from a general employer background check statute, and they vary by board. Employers hiring into a licensed occupation in Montana should confirm the current fingerprinting and criminal history rule with that board directly rather than assuming the general rules in this guide cover it.
Where federal guidance still applies
Race, national origin, and other protected class considerations in how an employer uses criminal history are governed by Title VII of the Civil Rights Act of 1964, enforced by the Equal Employment Opportunity Commission. The EEOC’s long standing 2012 enforcement guidance document on arrest and conviction records was rescinded on October 29, 2026, and employers should not rely on or cite that 2012 guidance as current policy. The agency’s general background check resource for employers remains available and should be the reference point going forward, alongside the statutory text of Title VII of the Civil Rights Act of 1964. For general background check questions, employers can review the EEOC’s current background check guidance for employers page. Montana employers should generally consult counsel before building a criminal history policy that could have a disparate effect on a protected class, since neither Title VII nor Montana law gives employers a promise of compliance just because a policy looks neutral on its face.
Practical steps for Montana employers
- Use a standalone disclosure and get written authorization before ordering any consumer report, every time, with no exceptions baked into a broader hiring document.
- Follow the full pre-adverse action and adverse action sequence under the FCRA even though Montana has no separate state version of this process.
- Do not build a ban the box style policy assuming Montana requires one, but also do not assume no state ever will; policies should be reviewed periodically against the current Montana Code Annotated.
- Apply termination decisions after probation consistently with written personnel policy, given Montana’s wrongful discharge exposure.
- Check the specific licensing board rule for any regulated occupation rather than relying on a general policy.
Frequently asked questions
Does Montana have a ban the box law for private employers
No. Montana has not enacted a statewide ban the box law that restricts when a private employer may ask about criminal history. Employers should still apply the FCRA’s disclosure and adverse action steps whenever a consumer report is used.
Can a Montana employer see an expunged misdemeanor conviction
A misdemeanor that has been expunged under Montana Code Annotated 46-18-1104 should no longer appear through a properly updated record search once a court has granted the petition. A person may use this expungement process only once in their lifetime.
Does Montana limit how far back a background check can go
Montana does not have its own statewide lookback statute for private employer background checks. The federal FCRA’s seven year limit on most non conviction records under 15 U.S.C. 1681c is the applicable rule, and that limit generally does not apply to convictions.
What is Montana’s Wrongful Discharge From Employment Act and how does it relate to background checks
It is a state statute that limits when an employer may terminate a worker who has completed the employer’s probationary period. If a termination following a background check discovery is not for good cause or conflicts with the employer’s own written policy, it may expose the employer to a wrongful discharge claim under 39-2-904.
Is the EEOC’s 2012 arrest and conviction guidance still in effect
No. That 2012 enforcement guidance document was rescinded on October 29, 2026. Employers should rely on the EEOC’s current published guidance and the text of Title VII rather than citing the rescinded 2012 document.
Do Montana licensing boards have their own background check rules
Many do, particularly for occupations involving children, health care, or public safety, and those fingerprinting and criminal history rules come from the specific board rather than from a general state employment statute. Employers should confirm the current rule with the relevant board.
For related background on how the seven year rule actually plays out across different states, see the background check seven year rule, and how it actually varies by state, and for the full notice sequence employers must follow, see the FCRA adverse action process, a step by step guide for employers. For employment background screening services, visit Reveal Background.
This article is general information, not legal advice. Employers should consult qualified counsel about how these laws apply to their specific hiring decisions.
