Employee rights and employment laws are established in both state and federal legislation. The following are some issues South Dakota employees should be aware of.
Under South Dakota law, employment advertisements must be non-discriminatory. They can't advertise based on characteristics such as race, sex, color, national origin, religion or disability. When interviewing job applicants, employers are not permitted to ask about national origin, age, sexual orientation, marital status, children, or if the potential employee has an arrest record. They can ask disabled persons if they can perform the job with or without a reasonable accommodation.
Minimum Wage and Overtime Standards
Federal minimum wage and overtime laws are addressed by the federal Fair Labor Standards Act. South Dakota uses the federal minimum wage of $7.25. Overtime applies after 40 hours worked in a workweek. Tipped employees can be paid $2.13 an hour as long as the employee receives at least the minimum wage an hour when this is combined with earned tips. Tips must not be shared with salaried employees. Employees who are exempt from the state minimum wage and overtime laws include certain farm workers, bona fide executive, administrative and professional employees, private domestic workers if they reside in their employer’s residence, and outside salespersons.
State and federal OSHA laws and other safety laws require safe and hazard-free work areas for all employees. Employees can report safety violations anonymously and they're entitled to protection from retaliation by their employers.
State Workers Compensation Insurance
The state system of workers compensation requires that nearly all employers carry workers’ compensation insurance coverage. This is a no-fault system for workers who are injured on the job, whose injuries were made worse by the job, or who contracted a work-related illness. The system provides weekly wage loss compensation, payment of medical bills and prescriptions, vocational rehabilitation, disability payments, and death benefits to the surviving spouse and children. Statutory guidelines set the amount of benefits. Those not covered include real estate agents, casual workers, most farm workers, certain part-time domestic servants, and work fare participants.
Leave for Family and Medical Reasons
The federal Family and Medical Leave Act (FMLA) allows employees up to 12 weeks' unpaid leave for each 12 months worked to care for an ill family member, a newborn, or a newly-adopted child. The Act covers employees who work for companies with at least 50 employees, as well as all public and state employees, if they've worked at least 1,250 hours in the past year. Eligible employees can also take leave if they have a serious medical condition themselves, and they can take up to 26 weeks to care for an active duty military family member. South Dakota has no state law extending similar benefits to smaller companies. Employees can take up to two hours' paid time off to vote on Election Day, provided they don't have two hours' non-working time available to vote while the polls are open.
Harassment on the Job
State and federal laws protect all employees from any form of workplace harassment. This includes sexually explicit comments, lewd jokes, display of sexual photos or drawings, or sending offensive emails. Employees, executives or supervisors who engage in conduct that threatens or intimidates an employee, or who condition a benefit based on a sexual or intimate act may also be liable, as well as those who initiate unwanted physical contact of any kind. Harassment usually means sexual conduct, but it also relates to other offensive gestures, comments, or activities directed at workers because of their religion, national origin, gender, race or disability. The conduct must be frequent, pervasive and severe to qualify as harassment. An employee who has been disciplined, discharged, demoted or who voluntarily resigns based on a hostile work environment may have a harassment claim against the employer.
Employers and employees may end their employment relationship at any time with or without a reason if no written contract exists. Otherwise, an employee can only be fired for reasons specified in the contract. Employers can't fire employees for discriminatory reasons or as retaliation if an employee files a complaint or claim against the company. Other unlawful termination reasons include pregnancy, age, work-related injuries or illness. A discharge can't violate public policy. No federal law addresses vacation pay, but an employee who has earned vacation time but hasn't used it is entitled to receive it upon termination. Employers may not include forfeiture clauses in employment contracts.
Unemployment Benefits and COBRA
To qualify for unemployment, residents or in-state workers must have been discharged through no fault of their own. They can't be disabled, must be actively seeking work, can't file ongoing claims, and must not refuse work without good cause. Federal law requires that employers with at least 20 full-time employees must allow discharged workers the right to continue group health benefits for up to 18 months after discharge, and up to 36 months if there is a “qualifying event.” South Dakota has a mini-COBRA law that covers employers with less than 20 full-time employees. They must make coverage available for up to 36 months for spouses and dependent children if there is a death, and up to 18 months for the employee himself. The state’s mini-COBRA law covers companies with two to 19 employees and extends coverage for 18 months.
Consult an Employment Lawyer
It is impossible to cover all state employment laws in this summary. Consult a South Dakota employment lawyer if you have concerns about any employment laws that affect you.