Pre-employment/Promotion

Hiring

Under federal law, an employer doesn't have to hire, or promote, the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:

• Age
• Race
• Sex
• Religion
• National origin
• Disability

An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:

• Are you married? Are you planning to get married?
• Do you have children? Are you planning to have children?
• Where were you born?
• What's your sexual orientation?
• Have you ever been arrested?

An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:

• Have you ever been convicted of a crime?
• Can you prove that you are eligible to work in the US?
• Can you do this job with, or without, reasonable accommodations?

References

A previous employer is free to provide any non-confidential information about a previous employee, as long as it's true and isn't provided to maliciously harm the employee. An employer, who provides false information that disparages the employee, may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.

Employment

At Will

In the majority of states, employees not working under an employment contract are deemed to be "at will." In South Dakota, at-will employees may be terminated for any reason, so long as it's not illegal. Employees may not be terminated at will if any of the following apply:

• Terminations that violate public policy
• Employees with express "for cause only" agreements or implied "for cause only" cases where an employee handbook contains a detailed list of exclusive grounds for discharge and a mandatory specific procedure that the employer agrees to follow
• Employees that have accepted employment after being promised future promotion to a certain position

Employee Handbooks

While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. In South Dakota, employers may be required to follow their handbooks and use the same procedures with each employee if the handbook contains a mandatory and specific procedure that the employer agrees to follow prior to terminating an employee. An employee handbook also provides more convenient access by employees and managers.

At a minimum, an employee handbook should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• A policy regarding sexual and other types of harassment in the workplace
• Internet access, e-mail, and voice mail policies
• The Family Medical Leave Act

The laws regarding an employer's duties and responsibilities arising under an employee handbook are complex, and a licensed attorney should be contacted to review individual circumstances.

Workplace Safety

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain about an unsafe work environment and be protected against employer reprisals.

The South Dakota Safety Council is a private, not-for-profit organization that is dedicated to preventing unintentional injuries. The Safety Council offers training, consultation, outreach programs and safety resources.

Workplace Injury

Workers' compensation laws are designed to compensate employees who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

The South Dakota State Employee Workers' Compensation Program is administered by the Bureau of Personnel. You have the right to choose your primary treating physician at the time of your injury. You will not be paid for lost work time unless you are incapacitated for seven consecutive days per your doctor's orders. Full medical benefits are provided with no time or monetary limitations. You may also be entitled to the following benefits:

• Temporary total disability (TTD) benefits are paid at a rate of 66 2/3% of your wage and may be paid for the duration of your disability
• Permanent total disability (PTD) benefits are paid at a rate of 66 2/3% of your wage and may be paid for the duration of your disability
• Permanent partial disability (PPD) benefits are paid at a rate of 66 2/3% of your wage and may be paid for the duration of your disability
• Disfigurement benefits are paid for a portion of 312 weeks depending on the percentage that your permanent disfigurement bears to your body as a whole

Sexual Harassment

An employer may be liable to an employee for instances of "sexual harassment," which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:

• Direct sexual conduct - an employer makes sexual advances or statements
• "Quid pro quo" - job-related benefits are offered in exchange for sexual conduct
• Hostile work environment - an employer maintains an overly sexual work environment

Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.

Discrimination and Wrongful Termination

Employers are not allowed to terminate or discriminate against employees for the following reasons:

• Age
• Race
• Sex
• Religion
• National origin
• Disability
• Pregnancy

It's illegal for an employer to consider these characteristics with regard to:

• Promotions
• Job assignments
• Termination
• Wages

And it's illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• For taking leave under the Family and Medical Leave Act
• Without following its own stated procedure or policy
• For reasons not contained in the employment contract, if one exists

Family and Medical Leave

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leave to qualifying employees who need time off from work to care for their own or an immediate family member's serious health condition. This allows for continued medical benefits and restoration of their original position upon return. An employee is eligible when they:

• Have worked for the same employer for the previous 12 months
• Have worked at least 1,250 hours in the previous 12 months
• Are employed by a "covered" employer, which is:
  • All federal, state, and local governments and agencies
  • Private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce

An injury or illness qualifies as a "serious health condition" if it either requires an overnight stay in a medical facility or constitutes "continuing treatment" by a health-care provider. Continuing treatment requires either the employee's incapacity for more than three calendar days and at least two subsequent treatments, or treatment by a health-care provider that results in continuing supervised treatment.

Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes. Unemployment compensation programs are administered by the state and normally provide monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits.

South Dakota's unemployment insurance program is financed by employers through payroll taxes. Employees are not charged for this program. To qualify for benefits, the following must be true:

• Your employer paid taxes to the Department of Labor on your wages
• You are unemployed or under-employed through no fault of your own
• You meet the earnings requirements during the base period (the first four of the last five completed calendar quarters before the effective date of your claim)
• You are able and available for suitable work and actively seeking work for each week that you claim benefits

Your weekly benefit is 1/26th of the wages paid in the highest quarter of your base period, up to a maximum of $256. Your wages in your high quarter must have been at least $728. Additionally, your wages in the other three quarters of your base period must be at least 20 times your weekly benefit. The maximum amount that you may receive during your benefit year is one-third your total base period wages, but not more than 26 times your weekly benefit.

COBRA

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:

For employees
• Voluntary or involuntary termination of employment for reasons other than gross misconduct
• Reduction in numbers of hours worked
For spouses
• Loss of coverage by the employee because of one of the qualifying events listed above
• Covered employee becomes eligible for Medicare
• Divorce or legal separation of the covered employee
• Death of the covered employee
For dependent children
• Loss of coverage because of any of the qualifying events listed for spouses
• Loss of status as a dependent child under the plan rules

South Dakota has enacted a "mini" COBRA law similar to the federal COBRA law. Employees of employers with 2-19 employees may qualify for 18 months of continuation coverage.

Related Web Links:

- South Dakota Safety Council
- South Dakota Workers' Compensation
- South Dakota Department of Labor, Unemployment Insurance
- US Department of Labor
- US Department of Labor OSHA
- Employment Law for Employees message boards for more help