South Dakota Labor Laws

 In the US, there are federal laws in place to manage the time spent by employees in the workplace, safeguarding their rights and guaranteeing fair pay for their efforts. These laws act as directives for employers, keeping them in check, and minimizing any forms of abuse or exploitation.

The Fair Labor Standards Act (FLSA), which dates back to 1938, is a critical federal law for time management, setting hourly wage rates and overtime pay, and requiring employers to keep an accurate record of their employees’ working hours. Overtime is pegged at 1.5 times the regular hourly rate for workers who exceed 40 hours a week. However, certain job categories, including executives, professionals, and administrative employees, are exempt from overtime pay depending on their job description and salary.

The Family and Medical Leave Act (FMLA) is another essential federal law that governs time management in the workplace, entitling eligible employees to up to 12 weeks of unpaid leave for specific family and medical reasons, such as the birth or adoption of a child or caring for a family member with a serious health condition. This act also requires employers to maintain employees’ health benefits during their leave and restore them to their previous or equivalent positions upon their return to work.

Employers who contravene federal time management laws face severe legal ramifications, including fines, back pay, and damages. If workers feel that their employer has violated federal time management laws, they can file complaints with the Department of Labor’s Wage and Hour Division for investigation and legal action.

Overall, federal time management laws are instrumental in ensuring that workers are compensated fairly for their time and effort in the workplace, protecting them from abuse and exploitation by employers. The Fair Labor Standards Act and the Family and Medical Leave Act are vital federal laws that govern time management and worker compensation, ensuring fair labor practices across various sectors, including non-profit, public, and private organizations.

South Dakota depends on federal laws and abides by the FLSA when it comes to hiring employees. The state’s hiring practices are influenced by discrimination laws that affect hiring decisions, job interviews and workdays. Employers are prohibited from discriminating against employees based on factors such as race, gender, or age, as established by federal law. This applies to all types of businesses.

• Race and color
• Creed
• Religion
• National origin
• Sex
• Pregnancy and childbirth
• Marital and familial status
• Disability
• Age
• Sexual orientation

Currently, 28 US states have enacted the “right-to-work” law, which safeguards employees from being required to join or pay labor union fees in order to work. South Dakota is included in this group of states and adheres to federal regulations. Should a South Dakota worker be pressured by their employer to violate the right-to-work policies, it would be classified as a Class 2 violation and appropriate penalties will be imposed.

In South Dakota, employers are free to terminate employees at any time without providing a reason. This is known as “employment at-will.” However, there are some exceptions such as when there is an employment contract with a clear end date, attempting to take advantage of a lawful right, or discharging an employee in retaliation for objecting to committing an illegal act. Additionally, smokers who use tobacco off the premises are protected by state law. But there are exceptions to this as well, such as if the smoking prohibition causes a conflict of interest or in firefighting facilities.

When an employee is terminated, they must receive their final paycheck by the next scheduled payday. This payment can either be made in a lump sum or in semi-monthly installments. It’s important to make this payment on time, as failure to do so can result in fines. If an employee shows legal documentation that no payment was made to their account, fines may be imposed. For a deeper understanding of termination procedures and their legal context, see our Guide to Firing Employees in South Dakota for Employers.

Now, we will discuss some key labor laws in South Dakota that may not be related to the categories we have previously explored. Some of these regulations include:

• COBRA Laws – As per the federal law known as the Consolidated Omnibus Budget Reconciliation Act (COBRA), workers who lose their job voluntarily or involuntarily can retain their group health benefits for the next 18 to 36 months. However, this rule is only applicable to businesses with 20 or more employees. Fortunately, the state of South Dakota has its own version of COBRA continuation that covers workers in businesses with less than 20 employees.
• OSHA Laws – In South Dakota, there isn’t a state-approved plan for occupational safety, as it follows federal standards like every other US state. The Occupational Safety and Health Act of 1970 is enforced by Occupational Safety and Health Administration (OSHA) throughout the country to ensure that all workers operate in safe settings free of hazards. OSHA seeks to prevent work-related injuries, and has identified six primary types of hazards: biological, chemical, work organization, safety, physical, and ergonomic. Federal OSHA includes both state and private sectors in South Dakota and for more information, one can look for the closest OSHA office nearby. Also, one can refer to the miscellaneous labor laws in South Dakota for further information.
• Background Check Laws – Employers in South Dakota must inform job candidates if they plan to do a background check during the interview process. The Fair Credit Reporting Act protects the rights of employees with regards to criminal records and convictions. While state laws do not require employers to conduct criminal record checks, the Pre-Employment Inquiry Guide advises interviewers to only ask such questions if there is a justifiable reason to do so that would impact the hiring decision.
• Whistleblower Laws – In South Dakota, employees are shielded from retaliation when they blow the whistle on violations of the law. The state’s codified laws offer robust protections for workers who report violations of wage and discrimination laws. In cases where there is no codified law covering a particular kind of retaliation, courts will determine the appropriate penalty, usually a misdemeanor.
• Recordkeeping Laws – In South Dakota, there’s a law that mandates the keeping of specific employment records for a set amount of time after an employee’s contract has ended. A full list of the records that are needed to be kept includes:
  • Payroll records
  • Certificates
  • Agreements
  • Notices
  • Collective bargaining agreements
  • Employment contracts
  • I-9 records
  • Sales and purchase records
  • Timecards
  • Wage-rate tables
  • Shipping and billing records
  • Records of additions to or deductions from wages
  • All other employment records are advised to be kept at least for a 1-year period

The minimum wage in South Dakota can change with the cost of living, which is tracked by the Consumer Price Index (CPI). The state minimum wage has been increased to $11.20 per hour for non-tipped employees.

The South Dakota legislature hiked up the hourly tipped minimum wage to $5.60 per hour. As per regulations, an employer must pay the minimum wage for tipped employees but can join a tip pool through a tip credit. This means that if the total tips earned by an employee cover the minimum wage, then the employer can pay wages out of this pool. The maximum amount an employer can take out is 50%, which means at least half the wages must come from the employer, and the rest from tips. However, these rules depend on an employer’s policies.

The Fair Labor Standards Act allows for subminimum wages to be paid to student-learners, full-time students working in certain industries, and individuals with disabilities. In South Dakota, employers can pay individuals under 20 years old hourly wages of $4.25 for the first 90 days of employment in accordance with federal laws. Full-time students are eligible for 85% of the federal minimum wage, which is currently $6.16 per hour.

In South Dakota, there are exceptions to the minimum wage, which are largely informed by federal exemptions but aren’t limited to them. The FLSA outlines which employees are exempt from minimum wage laws and they include:

• Executive, Administrators, Professionals and Outside Salesperson workers who are paid on a salary basis and earn not less than $684 per week,
• Computer employees who earn $684 per week or at least $27.63 per hour,
• Highly compensated employees who earn $107,432 or more a year,
• Tipped employee
• Minors
• Babysitters, and
• Employees working in amusement parks, recreational facilities, and any other type of organization that cannot classify them as tipped employees.

The South Dakota legislature mandates that all employers in the state must pay their employees monthly wages either once a month or on pay days set by the employer’s policies. Payment can be made through cash, checks, or direct deposits. If none of these forms of payment is possible, an alternative agreement can be made between the employer and the employee.

Just like many other US states, South Dakota also follows federal regulations for compensatory time and overtime laws. This means that in the absence of state laws, South Dakota employees must be paid the overtime rate of 1.5 times their hourly rate for every hour worked beyond 40 hours per week. This rule has been in effect since January 1, 2020 and is still valid as of January 1, 2022. It is important to note that this law applies only to non-exempt employees earning a minimum of $684 per week, although there are several exceptions to this rule.

The Fair Labor Standards Act (FLSA) sets rules for overtime eligibility, stating that certain employees who meet a specific income threshold or work in certain industries are exempt from receiving overtime pay. If a state fully adheres to federal regulations, such as South Dakota, then these exceptions also apply. As seen in Federal Law, the exceptions are:

• Executive, Administrative, Professionals and Outside Salespeople employees who earn a salary and make not less than $684 per week
• Highly compensated employees who make more than $107,432 a year
• Computer employees who work on a salary basis and earn no less than $684 weekly

Learn more in detail about South Dakota Overtime Laws.

The South Dakota Department of Labor and Regulations does not have any specific laws regarding breaks for employees. This means that federal rules apply, which state that employers are not required to provide any rest or meal breaks for their staff. However, employers are allowed to include rest breaks in their policies and are then responsible for paying for any breaks that are 20 minutes or less. The same applies to meal breaks, which are paid for if they are under 20 minutes, unless the employee is expected to work during that time. Breastfeeding laws are the only exception to this rule.

In South Dakota, labor laws regarding breastfeeding align with federal regulations, which provide protection for nursing mothers in professional settings. According to Section 7(r) of the FLSA, employers must allow a reasonable amount of time for an employee to express milk or breastfeed for up to one year after childbirth, as well as provide a private, non-bathroom space for the employee to do so. The area provided must also be free from intrusion and shielded from view. The specifics of the amount of time needed to express milk may vary, but it must be reasonable and allow for the mother’s needs. Employers with 50 or fewer employees may be exempt from these requirements due to undue hardships, financial losses, or decreased productivity related to their business structure.

South Dakota provides two types of leaves – required and non-required leaves.

The following are the required leave types that South Dakota employers must provide to their employees:

• Family and Medical Leave (FMLA) – If certain conditions arise that require an eligible employee to take leave, they are entitled to unpaid leave under the Family and Medical Leave Act (FMLA). The act covers sick leave, family leave, and leaves without pay. Many states offer full FMLA or partial coverage with benefits under other leave types. To be eligible for 12 weeks of unpaid leave under the FMLA, an employee must have worked for their employer for at least a year, worked at least 1,250 hours, and worked at a location with at least 50 employed workers within 75 miles. FMLA reasons include caring for a sick family member, maternity/paternity leave, bonding with a newborn, illnesses preventing employees from working, and taking care of the household while a family member is on military duty. Another reason is caring for a family member who was injured in the line of duty while serving in the National Guard or a government-approved military organization. In this case, the employee can take additional 14 weeks of leave during a 12-month period.
• Court and Jury Duty Leave – In certain situations, an employee may be granted time off for jury duty, but the circumstances surrounding their legal involvement will determine the specifics. If they are required to testify or are subpoenaed, they will receive paid leave for the length of the trial and may also be reimbursed for expenses depending on state regulations. However, if they are simply a witness in a private legal matter unrelated to their role at work, they will not be eligible for paid leave and will need to take unpaid vacation time or use basic leave without pay. Official paperwork must be filed with the employer to request time off for jury duty, but once approved, the employee will receive their full wages during the duty and additional per diem compensation according to the laws in South Dakota.
• Voting Time Leave – When it’s election season, workers have the freedom to cast their ballots without being penalized. In the scenario that they’re unable to find the time to vote owing to their job duties, it’s the employer’s responsibility to offer two hours of paid leave for voting purposes.
• Military Leave – South Dakota has two types of military leaves of absence available to its employees: service leave and training leave. Service leave can be accrued on an annual basis up to 40 hours and is used for military-related services. Training leave cannot be accrued and is only available to permanent employees. To request training leave, the employee must obtain an order or letter from their reserve or national guard commander stating the dates of their training period and submit it to the appointing authority 15 days prior to their departure for training.

The non-required leave types are:

• Vacation Leave – Vacation leave is not mandatory for employees in South Dakota, but if it is offered, certain conditions must be met. Only permanent employees with working certificates and temporary employees who are not trainees are entitled to vacation days, which begin accruing at the start of their employment and continue until they leave the job. However, if an employee hasn’t worked continuously for six months, they won’t be paid for accrued vacation time when they leave. If an employee’s employment is terminated, they may be able to take the vacation time in one lump sum.
• Sick Days – As an employer, you are not obligated to grant your employees leave of absence, whether paid or unpaid, for reasons of sickness. However, it is possible for you to establish specific policy guidelines for taking sick days. Through this process, you can create a legal document that covers the accrual and use of these days.
• Bereavement Leave – In South Dakota, there is no legal obligation for an employer to provide bereavement leave. If an employer chooses to offer such leave, they must communicate it to their employees in writing or prominently display it with their other policies. Payment during this time is at the discretion of the employer.
• Holiday Leave – As of now, employers aren’t mandated by state or federal laws to provide their employees with holiday leaves, whether they’re paid or unpaid. However, if an employer opts to offer this benefit, there are specific requirements that must be followed.

The following are the official federal holidays observed in the US:

Child labor laws, whether implemented at the federal or state level, exist to safeguard minors from being taken advantage of in the workplace. These laws are in place to ensure protection from physical, moral, and emotional hazards. Youth employment, as it is referred to by the Department of Labor and Regulations, requires compliance with certain criteria prior to lawful employment. For instance, the employer must secure an employment certificate from the minor that is typically issued by the Commissioner of Labor. Additionally, the employment labor poster located on the premises must outline all regulations, rights, and obligations.

The following are the working hours regulations set in place for minors in the state of South Dakota:

South Dakota law prohibits minors from working in certain situations, such as:

• Manufacturing or storing explosives
• Driving or working outside on motor vehicles
• Forest fire fighting & prevention
• Using power-driven woodworking machines
• Exposure to radioactive substances
• Using power-driven hoisting apparatus
• Using power-driven metal-forming, punching and shearing machines
• Mining
• Using meat-processing machines, slaughtering, meat and poultry packing, and processing
• Using bakery machines
• Using balers, compactors, and paper-products machines
• Manufacturing bricks and tiles
• Using circular, band, chain or reciprocating saws, guillotine shears, wood chippers, and cutting discs
• Working in demolition
• Roofing
• Trenching or excavating.

In South Dakota, it is illegal for any child to work in an environment that endangers their life, health, or morals. Employers who exploit minor employees can face a Class 2 misdemeanor charge and fines up to $1000 as well as 6 months in jail. Certain minor misdemeanors such as unclean work environments or failure to provide appropriate seating can also be charged under this act. While there are no state laws mandating break times for minors, those employers who do offer a break policy must provide a paid 20-minute break.