The South Dakota employment law guide
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Wages and breaks
The current minimum wage for non-tipped employees in South Dakota is $11.85 per hour.
The minimum wage for tipped employees is $5.925 per hour. The employer must make sure the employees receive no less than the current minimum wage and must keep a record of all tips received by employees.
There are no state laws governing the payment of overtime, so federal rules apply.
Non-exempt employees must be paid 1.5 times their regular rate of pay for all hours worked over 40 in a workweek.
The federal overtime rule stipulates that the minimum salary requirement for administrative, professional, and executive exemptions is $1,128 per week or $58,656 per year.
State law does not require employers to provide meal periods or breaks.
Federal law does not require employers to provide meal periods or breaks, but if they choose to do so, breaks lasting less than 20 minutes must be paid.
Meal periods do not need to be paid if employees are free to do as they wish.
State law does not require employers to provide meal periods or breaks.
Federal law does not require employers to provide meal periods or breaks, but if they choose to do so, breaks lasting less than 20 minutes must be paid.
Meal periods do not need to be paid if employees are free to do as they wish.
Final paychecks in South Dakota
According to state law, employees who are terminated, who quit or who are separated from employment due to a labor dispute must be paid all final wages by the next regularly scheduled payday or as soon as the employee returns all property of the employer in their possession.
South Dakota child labor laws
Minors under the age of 16 may not work in any occupation that poses a risk to life, health, or morals.
However, federal law is more restrictive for 14- and 15-year-olds and must be followed where it provides greater protection. Under federal law, they may work no more than 3 hours on a school day and 18 hours in a school week, and only between 7 a.m. and 7 p.m. (or until 9 p.m. from June 1 through Labor Day). They may work up to 8 hours on a non-school day and 40 hours in a non-school week.
Leave Requirements
South Dakota Sick days
South Dakota law does not require employers to provide paid or unpaid sick leave but must comply with their own established policies if they choose to implement one.
South Dakota Family and medical leave
Employers may be required to provide an employee unpaid leave in accordance with the Family and Medical Leave Act or other federal laws.
South Dakota Bereavement leave
Employers are not required to provide bereavement leave.
South Dakota Vacation time
There are no laws governing whether or not employers have to provide vacation benefits, either paid or unpaid. If an employer establishes a valid employment contract or employee handbook that contains vacation leave, they would have to comply with it.
South Dakota Holiday leave
Private employers are not required to provide paid or unpaid time off for holidays.
South Dakota Jury Duty laws
Employers are not required to pay an employee for time taken to respond to a jury summons, but they are not allowed to punish the employee in any way.
South Dakota Voting time
Employers must provide employees with 2 consecutive hours of paid time off to vote if they do not have sufficient time outside working hours while polls are open (7 a.m. to 7 p.m.). Under South Dakota Codified Laws 12-3-5, the employer may designate when the employee takes this leave. Failure to comply with this requirement may result in a Class 2 misdemeanor.
South Dakota Military Leave
The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) laws apply to all employers in the United States.
Hiring and firing
South Dakota Discrimination Laws
Federal law makes it illegal for an employer to discriminate on the basis of race, color, religion, sex, national origin, pregnancy, age (40 or older), disability, and genetic information (including family medical history). Federal protections related to sex discrimination have been interpreted to include sexual orientation and gender identity.
Additionally, South Dakota law prohibits discrimination based on race, color, creed, religion, sex, ancestry, disability (including blindness or partial blindness), and national origin. State law does not include age, sexual orientation, or gender identity as protected classes. South Dakota also provides protections related to lawful use of tobacco products off the employer’s premises during non-working hours.
Click here to read our blog on what acceptable and unacceptable questions to ask during an interview.
South Dakota Termination laws
South Dakota is an employment-at-will state, which means that without a written employee contract, employees can be terminated for any reason at any time, provided that the reason is not discriminatory and that the employer is not retaliating against the employee for a rightful action.
South Dakota Record-Keeping Laws
Regarding employment and payroll data, under the Fair Labor Standards Act (FLSA) and others, you must:
For at least 3 years: keep payroll records, certificates, agreements, notices, collective bargaining agreements, employment contracts, and sales and purchase records. Also keep completed copies of each employee’s I-9 for three years after they are hired. If the employee works longer than three years, hold on to the form for at least one year after the employee leaves.
For at least 2 years: Keep basic employment and earning records like timecards, wage-rate tables, shipping and billing records, and records of additions to or deductions from wages. Also keep the records that show why you may pay different wages to employees of different sexes, such as wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements.
For at least 1 year: The Equal Employment Opportunity Commission says employers should keep all employment records for at least one year from the employee’s date of termination.
Other record-keeping laws that may apply to you:
Under the Occupational Safety and Health Act, you need to keep records of job-related injuries and illnesses for five years. But some records, like those covering toxic substance exposure, have to be kept for 30 years.
You must keep files of benefit plans and seniority and merit systems while they are in effect and for at least a year after they end. You must also retain summary descriptions and annual reports of benefits plans for six years.
If your company is covered by the Family and Medical Leave Act, you must also retain relevant records of leaves, notices, policies, and more for three years.
Additional laws that may apply to you.
South Dakota Pay Practices
Employers in South Dakota must pay their employees at least monthly or on regular paydays the employer chooses in advance.
South Dakota Background Check laws
Employers who run background checks should ensure they’re following the requirements of the Fair Credit Reporting Act, which are available here.
South Dakota requires that employers conduct background checks on the following types of employees or applicants: School personnel, including those working for a postsecondary technical institute; Board members, officers, or key employees of a trust company; Personal attendants working for a provider agency that has a contract with the Department of Human Services.
South Dakota Credit and Investigative Check laws
South Dakota does not expressly allow or prohibit employers from obtaining credit reports on applicants or employees, except for private trust companies, which are required to obtain credit reports on each proposed incorporator, organizer, board member, manager, officer, and key employee.
South Dakota Arrest and Conviction Check laws
South Dakota does not expressly allow or prohibit criminal history checks for employment purposes. However, the South Dakota Department of Labor has issued a “Pre-Employment Inquiry Guide,” which indicates that employers should not ask about or check an applicant’s arrest, conviction, or court records unless they are substantially related to the functions of employment.
South Dakota Whistleblower Protection
Employers may not discharge or discriminate against an employee for doing any of the following: Filing a complaint or testifying against the employer regarding unequal wages because of sex; or Helping or refusing to help someone obtain an abortion.
Certain employers in South Dakota may not discharge or discriminate against an employee for reporting in good faith alleged abuse, neglect, or exploitation.
South Dakota COBRA
COBRA is a federal law that allows many employees to continue their health insurance benefits after their employment ends. Because federal COBRA only applies to employers that have 20 or more employees, many states have adopted their own versions of the law, which are known as “mini-COBRAs.” South Dakota’s mini-COBRA allows employees to continue their coverage for up to 18 months. Each individual certification of coverage must contain a notice of the right to continue coverage. We recommend that employers inform their insurer of an employee’s triggering event as soon as it occurs.
Compliance Calendar
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Remember
This summary is not qualified legal advice. Laws are always subject to change, and they can vary from municipality to municipality. It’s up to you to make sure you’re compliant with all laws and statutes in your area. If you need more compliance help, we recommend consulting with a qualified lawyer, checking with your local government agencies, or signing up for Homebase to get help from our certified HR Pros.