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Quick and Easy Guide to Labor & Employment Law: South Dakota

This state-specific guide covers labor and employment case law, statutes, rules, and regulations that HR professionals and clients often encounter or have questions about in South Dakota.

Current with changes from the 2021 Legislative Session through 3/31/2021.

At-Will Employment

(S.D. Codified Laws § 60-4-4)

South Dakota is an employment-at-will state, which means that without a written employee contract, employees can be terminated for any reason and at any time, provided that the reason is not discriminatory, and that the employer is not retaliating against the employee for exercise of a protected right.

South Dakota state law also provides some job protection for people who smoke, as it is considered a discriminatory or unfair practice to fire an employee for any use of tobacco products off the worksite during nonworking hours. Exceptions may be made only if a non-smoking requirement is important to an individual or group of employees’ job activities, or if a smoking prohibition is necessary to avoid a conflict of interest with any responsibilities to the employer. S.D. Codified Laws § 60-4-11.

Right to Work Laws

(S.D. Codified Laws § 60-8-1)

South Dakota is a right to work state. Any person who by any use of force, threats or intimidation, prevents or endeavors to prevent any hired foreman, journeyman, workman, laborer, servant or other person employed by another person from continuing or performing work or from accepting any new work or employment, or induces the hired person to relinquish work or employment, or to return any work the person has in hand before it is finished, is guilty of a Class 2 misdemeanor.

The right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization.  S.D. Codified Laws § 60-8-2.

In addition, any agreement relating to employment, whether in writing or oral, which by its stated terms, or by implication, interpretation or effect thereof, directly or indirectly denies, abridges, interferes with, or in any manner curtails the free exercise of the right to work by any citizen of the State of South Dakota, is a Class 2 misdemeanor. S.D. Codified Laws § 60-8-4.

Additional information regarding South Dakota's right to work laws may be found under South Dakota Codified Law Chapter 60-8 (subsections 1-8).

Immigration Verification

The State of South Dakota places no additional employment verification procedures on employers beyond Federal I-9 compliance. There is no requirement to use E-Verify under South Dakota state laws.

Drug Testing

South Dakota has no general drug testing law for private employers.

However, any nonprofit facility that is certified by the South Dakota Department of Human Services to provide pre-vocational or vocational training, residential training, and other supports and services to persons with developmental disabilities must have a drug screening policy in place for all applicants and employees. S.D. Codified Laws § 27B-1-19.

Jury Duty Leave

(S.D. Codified Laws § 16-13-41.2)

It is unlawful for an employer in the State of South Dakota to persuade or attempt to persuade any juror to avoid jury service; to intimidate or to threaten any juror in that respect; or to remove or otherwise subject an employee to adverse employment action as a result of jury service if the employee provides reasonable notice of his or her absence. It is also unlawful for an employer to require or request an employee to use annual, vacation or sick leave for time spent responding to a summons for jury duty. No South Dakota state law requires the employer to pay wages while an employee is on jury duty.

Voting Leave

(S.D. Codified Laws § 12-3-5)

South Dakota law requires an employer to provide an employee with two (2) consecutive hours of paid leave to vote if the employee does not have two (2) consecutive hours of off-duty time before his or her shift begins or after his or her shift ends in which to vote while polls are open.

Other Leave

The State of South Dakota does not require private employers to offer to employees either paid or unpaid vacation, bereavement, holiday or sick leave. However, the employer is subject to the federal Family and Medical Leave Act and its requirements.

The Family and Medical Leave Act requires employers who employ 50 or more employees to grant qualifying employees up to 12 weeks of unpaid leave for:

  • Birth and care of the employee’s child, or placement for adoption or foster care of a child with the employee;
  • Care of an immediate family member (spouse, child, parent) who has a serious health condition; or
  • Care of the employee’s own serious health condition.

Meal Breaks

The State of South Dakota has no law regulating meal breaks or rest periods. Therefore, federal law applies.

Minimum Wage, Overtime, and Wage Record Keeping

The State of South Dakota set minimum wage at not less than $8.50 per hour. Employers must still comply with federal wage laws and regulations. S.D. Codified Laws. § 60-11-3.

Any employer of a tipped employee shall pay a cash wage of not less than fifty percent of the minimum wage if the employer claims a tip credit against the employer’s minimum wage obligation. If an employee's tips combined with the employer's cash wage of not less than fifty percent of the minimum wage do not equal the minimum wage, the employer shall make up the difference as additional wages for each regular pay period of the employer. S.D. Codified Laws § 60-11-4.

There are no state laws governing the payment of overtime, so federal law applies. Generally, if an employee works more than 40 hours, he or she must be compensated at a rate of one and one-half times the regular rate of pay at which he or she is employed. This does not apply to agricultural employees.

In addition, the State of South Dakota compels every employer of more than 25 persons to make, keep and maintain the records of the wage and wage rates, job classifications, and other terms and conditions of employment of the persons employed by him, and to preserve the records for a reasonable period of time. S.D. Codified Laws § 60-12-17.

Final Payments

(S.D. Codified Laws § 60-11-10)

In the State of South Dakota, whenever an employer separates an employee from the payroll or whenever an employee not having a written contract for a definite period quits or resigns that employment, the unpaid wages or compensation of such employee are due and payable not later than the next regular stated pay day for which those hours would have normally been paid or as soon thereafter as the employee returns to the employer all property of the employer in the employee’s possession.

Reemployment Assistance (formerly unemployment insurance)

Reemployment Assistance (RA) provides temporary financial assistance to individuals who have lost work through no fault of their own. RA is intended to partially offset the loss of wages while an unemployed worker searches for suitable work or until an employer can recall the employee to work. South Dakota’s reemployment assistance program is financed by employers through payroll taxes; workers do not contribute to this plan. Additional information regarding South Dakota's reemployment assistance program may be found under South Dakota Codified Law Title 61 (subsections 1-7).

Workers' Compensation

There is no law in South Dakota requiring any employer to carry workers' compensation insurance. However, it is highly recommended. An uninsured employer may be sued in civil court by an injured worker.

The South Dakota Workers' Compensation program for those employers who choose to have coverage is an insurance program that pays medical and disability benefits for work-related injuries and diseases.

Child Labor

(S.D. Codified Laws § 60-12-1 to § 60-12-14)

In South Dakota, no unemancipated child under 16 years of age may be employed:

  • In any occupation dangerous to life, health or morals;
  • For more than four hours per school day or 20 hours per school week;
  • For more than eight hours per non-school day or 40 hours per non-school week ;
  • Later than 10 p.m. on a school night.

Furthermore, children younger than 14 years may not be employed:

  • During school hours
  • Later than 7 p.m.

Gun Laws

The State of South Dakota generally recognizes the right to bear arms in accordance with state and federal laws afforded by the Second Amendment of the United States Constitution and Article VI, Section 24 of the South Dakota Constitution. 

Additional Laws and Regulations

Equal pay

(S.D. Codified Laws § 60-12-15)

No employer in the State of South Dakota may discriminate between employees on the basis of sex, by paying wages to any employee in any occupation in the state at a rate less than the rate at which the employer pays any employee of the opposite sex for comparable work on jobs which have comparable requirements relating to skill, effort and responsibility, but not to physical strength.

Human Rights

(S.D. Codified Laws § 20-13-10)

The South Dakota Human Relations Act prohibits discrimination in employment on the basis of race, color, creed, religion, sex, ancestry, disability or national origin, to fail or refuse to hire, to discharge an employee or to accord adverse or unequal treatment to any person, employee or intern with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff or any term or condition of employment.

Genetic Information

(S.D. Codified Laws § 60-2-20)

It is an unlawful employment practice in South Dakota for an employer to seek to obtain, to obtain, or to use genetic information of an employee or a prospective employee to distinguish between or discriminate against employees or prospective employees or restrict any right or benefit otherwise due or available to an employee or a prospective employee.

However, it is not an unlawful employment practice for an employer to seek to obtain, to obtain, or to use genetic information if:

  • The employer is a law enforcement agency conducting a criminal investigation; or
  • The employer relies on the test results from genetic information obtained by law enforcement through a criminal investigation, the employer legally acquires the test results, the employer keeps the test results confidential except as otherwise required by law, and the employer uses the test results for the limited purpose of taking disciplinary action against the employee based only on the alleged misconduct.

Background Checks

South Dakota does not restrict employers from conducting background checks with respect to applicants or employees or from using those background checks in hiring decisions.

Medical and Recreational Marijuana

(S.D. Const. art. XXX; S.D. Codified Laws §§ 34-20G-1 to 34-20G-95)

Effective July 1, 2021, South Dakota authorized the use of medical marijuana. South Dakota employers can still prohibit possession or use of marijuana at work or coming to work under the influence. Employers have an obligation to accommodate employees who use medical marijuana, generally. 

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Guide last updated July 2021.

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