Labor and Employment Law Overview: South Dakota

Labor and Employment Law Overview requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: XpertHR Editorial Team

Summary

  • South Dakota prohibits an employer from discriminating and retaliating against employees based on protected classes. See EEO, Diversity and Employee Relations.
  • South Dakota requires background checks for certain positions and allows preemployment drug testing. See Recruiting and Hiring.
  • In South Dakota, there are requirements relating to the minimum wage and child labor. See Wage and Hour.
  • Certain employees of small employers in South Dakota are entitled to continued health care coverage. See Pay and Benefits.
  • A South Dakota employer may be required to provide employees with certain leaves of absence including time off for jury duty, military leave, voting leave and legislative leave. See Attendance and Leave.
  • A South Dakota employer that provides a good-faith job reference is protected from liability. State law provides an employer with guidance regarding what constitutes good faith. See Organizational Exit.

Introduction to Employment Law in South Dakota

South Dakota is an employer-friendly state.

Select South Dakota employment requirements are summarized below to help an employer understand the range of employment laws affecting the employer-employee relationship in the state. An employer must comply with both federal and state law.

An employer must also comply with applicable municipal law obligations affecting the employment relationship, in addition to complying with state and federal requirements.

EEO, Diversity and Employee Relations

Key South Dakota requirements impacting EEO, diversity and employee relations are:

South Dakota Human Relations Act

The South Dakota Human Relations Act (SDHRA) recognizes the same protected classes as those established under federal antidiscrimination laws. Specifically, the SDHRA prohibits an employer from discriminating on the basis of the following:

  • Race;
  • Color;
  • Creed;
  • Religion;
  • Sex (including pregnancy);
  • Ancestry;
  • National origin; and
  • Disability.

The SDHRA applies to all employers, employment agencies and labor organizations, with limited, specific exceptions, such as bona fide religious institutions with respect to some qualifications for employment based on religion.

The law also prevents an employer from retaliating against employees who:

  • Enforce their rights under the SDHRA;
  • Support a third party in enforcing his or her rights under the SDHRA; and
  • Participate in an investigation concerning unlawful discriminatory practices.

Wage Discrimination

State law prohibits discrimination in pay between the sexes. The law does permit pay differentials between male and female employees based on legitimate nondiscriminatory factors (e.g., seniority, merit system).

Discrimination Against Smokers

State law prohibits employers from discriminating against employees who use tobacco products:

  • Off the employer's premises; and
  • During nonworking hours.

Exceptions may be made only if a smoking requirement is:

  • Important to the work activities of an individual or group of employees; or
  • Necessary to avoid a conflict of interest with any responsibilities to the employer.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on EEO, diversity and employee relations practices in South Dakota can be found in the South Dakota Employee Handbook Table of Contents, Disabilities (ADA): South Dakota, EEO - Discrimination: South Dakota, EEO - Harassment: South Dakota. EEO - Retaliation: South Dakota, Employee Discipline: South Dakota and Does This Law Apply to My Organization in South Dakota? Federal requirements can be found in Disabilities (ADA): Federal, EEO - Discrimination: Federal, EEO - Harassment: Federal, EEO - Retaliation: Federal and Employee Discipline: Federal.

Recruiting and Hiring

Key South Dakota requirements impacting recruiting and hiring are:

Background Checks

In South Dakota, background checks are mandatory for nurses, school employees and law enforcement officers.

Drug and Alcohol Testing

An employer may administer drug and alcohol tests, both for job applicants and for employees, for current illegal drug use. An employer may make employment decisions based on verifiable test results.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on recruiting and hiring practices in South Dakota can be found in Preemployment Screening and Testing: South Dakota. Federal requirements can be found in Preemployment Screening and Testing: Federal.

Wage and Hour

Key South Dakota requirements impacting wages and hours are:

Minimum Wage

The minimum wage in South Dakota is $8.55 per hour. A separate minimum wage rate exists for tipped employees. State law also recognizes certain exemptions from minimum wage such as for employees with developmental disabilities and apprentices.

Child Labor

Child labor laws in South Dakota restrict the occupations in which some minors may be employed and the number of hours and times during which they may work.

Minors under 16 are restricted from certain dangerous occupations, but the prohibitions do not apply if they are employed by their parents or if they have completed a safety course and received a license to operate agricultural equipment. Minors 15 and older may dispense gasoline and other fuels at a service station.

Minors under 14 may not be employed at any factory, workshop or mine.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on wage and hour practices in South Dakota can be found in Minimum Wage: South Dakota and Child Labor: South Dakota. Federal requirements can be found in Minimum Wage: Federal and Child Labor: Federal.

Pay and Benefits

Key South Dakota requirements impacting pay and benefits are:

Health Care Continuation Coverage

Under South Dakota's mini-COBRA law, employers with fewer than 20 employees must permit eligible employees and their covered dependents to elect continued health care coverage.

Pay Frequency

A South Dakota employer must pay all wages due to employees as follows:

  • At least once each calendar month, unless otherwise provided by law; or
  • On regular, agreed-upon paydays designated in advance by the employer.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on pay and benefits practices in South Dakota can be found in the Health Care Continuation (COBRA): South Dakota and Payment of Wages: South Dakota. Federal requirements can be found in Health Care Continuation (COBRA): Federal and Payment of Wages: Federal.

Attendance and Leave

South Dakota has fewer laws relating to required leaves for employees than many other states, but does have mandated leave laws such as:

  • Jury duty leave;
  • Military leave;
  • Voting leave; and
  • Legislative leave.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on attendance and leave practices in South Dakota can be found in the South Dakota Employee Handbook Table of Contents, Jury Duty: South Dakota, USERRA: South Dakota and Other Leaves: South Dakota. Federal requirements can be found in Jury Duty: Federal, USERRA: Federal and Other Leaves: Federal.

Organizational Exit

Key South Dakota requirements impacting organizational exit are:

Final Paycheck

An employer must pay terminated employees all wages and compensation on the next regular payday after employment ends. However, the employer may hold back the final paycheck until the employee returns any property that belongs to the employer.

References

An employer that provides job-related references to a current or former employees' prospective employer is presumed to have done so in good faith. The presumption of good faith does not apply if the employer:

  • Recklessly, knowingly or with a malicious purpose disclosed false or deliberately misleading information; or
  • Disclosed information subject to a nondisclosure agreement or information that is confidential under any federal or state law.

Any written response to a request for a reference must be made available to the current or former employee if he or she asks for it.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on organizational exit practices in South Dakota can be found in Payment of Wages: South Dakota and Employee Communications: South Dakota. Federal requirements can be found in Payment of Wages: Federal and Employee Communications: Federal.