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CHAPTER 61-5

EMPLOYERS' CONTRIBUTIONS AND ACCOUNTS

61-5-1      Employer subject to title for entire year.
61-5-2      Repealed.
61-5-3      Elective coverage of employer--Minimum period of coverage--Notice of termination.
61-5-4      Elective coverage of distinct place of business--Minimum period of coverage--Notice of termination.
61-5-5      Termination of elective coverage on notice by secretary.
61-5-5.1      Transferred.
61-5-6 to 61-5-9. Repealed.
61-5-10      Repealed.
61-5-11      Termination of coverage on application by employer no longer subject to title.
61-5-12      Repealed.
61-5-13      Repealed.
61-5-14      Repealed.
61-5-15      Termination of coverage on transfer of account to successor in business.
61-5-16      Repealed.
61-5-17      Termination of coverage on employer's cessation of business.
61-5-18      Provisions governing employers' contributions.
61-5-18.1 to 61-5-18.4. Temporary.
61-5-18.5 to 61-5-18.10. Repealed.
61-5-18.11 to 61-5-18.13. Repealed.
61-5-18.14      Repealed.
61-5-18.15      Transferred.
61-5-18.16      Transferred.
61-5-18.17      Transferred.
61-5-19      Repealed.
61-5-19.1      Repealed.
61-5-20      Repealed.
61-5-20.1      Repealed.
61-5-20.2      Transferred.
61-5-20.3 to 61-5-20.7. Transferred.
61-5-21      Transferred.
61-5-22      Repealed.
61-5-23      Rules establishing method of computing employers' contributions.
61-5-23.1      Repealed.
61-5-23.2      Repealed.
61-5-24      Initial contribution rates for employers--Employer classification--Experience rating.
61-5-24.1, 61-5-24.2. Transferred.
61-5-25      Employer's contribution rate--Rate schedule based on average high cost multiplier ratio.
61-5-25.1      Employer's reserve ratio for 2007 through 2009.
61-5-25.2      Employer's contribution rates for 2010 through 2014 .
61-5-25.3      Employer's reserve ratio--Contribution rates for 2015 through 2017.
61-5-25.4      Employer's reserve ratio--Contribution rates for 2018 and thereafter.
61-5-26 to 61-5-26.4. Repealed.
61-5-27      Reduced rate refused for delinquencies .
61-5-28      Increase in all employers' rates on reduction of amount in the unemployment compensation fund--Application and duration of rate--Amount payable.


61-5-28.1      Administrative fee.
61-5-29      Investment fee.
61-5-29.1      Employer's investment in state's future fund--Purposes--Expenditures.
61-5-29.2      Transferred.
61-5-30      Repealed.
61-5-31      Interest on negative balance in employer's experience rating account.
61-5-32      Contributions by nonprofit organizations or political subdivisions--Direct payment of benefits in lieu of contributions.
61-5-32.1 to 61-5-32.5. Transferred.
61-5-33      Rights of appeal under political subdivision coverage.
61-5-33.1      Transferred.
61-5-33.2      Transferred.
61-5-33.3      Transferred.
61-5-34      Voluntary additional contributions credited to employer's account.
61-5-35      Contributions paid in accordance with rules.
61-5-36      Deduction of contributions from wages prohibited.
61-5-37      Contributions credited to experience-rating accounts.
61-5-38      Benefits charged against accounts--Allocation among successive employers in base period.
61-5-38.1      Repealed.
61-5-39      Benefits charged against experience-rating accounts--Events for which account not chargeable--Erroneous payments.
61-5-40      Charges to experience-rating accounts not applicable to employers reimbursing benefits.
61-5-41      Proration among all employer experience-rating accounts of benefits paid but not charged to employer's experience-rating account.
61-5-42      Succession to experience-rating account on acquisition of business by another--Federal standards to be met.
61-5-43      Circumstance warranting return of experience-rating accounts to sellers.
61-5-44      New experience-rating account established after five years without coverage--Prior balances not considered--Exception.
61-5-45      Experience-rating account continued during employer's military service--Reestablishment on resumption of business.
61-5-46      Mandatory transfer of experience-rating account on transfer of business to another--Rate recalculation--Exception.
61-5-47      Knowing violation or attempted violation of § 61-5-46 related to determining contribution rate assignment as misdemeanor--Additional penalties.
61-5-48      Rules to implement application of § 61-5-46.
61-5-49      Definitions applicable to §§ 61-5-46 to 61-5-48.
61-5-50      Interpretation and application of §§ 61-5-46 to 61-5-49 to meet federal standards.
61-5-51      Waiver of mandatory transfer of experience-rating account--Conditions.
61-5-52      Procedures to identify transfer or acquisition of business.
61-5-53      Pooled fund maintained by department--Moneys credited.
61-5-54      Violation by employer to reduce benefits or contributions as misdemeanor--Separate offenses.
61-5-55      Employee's agreement to pay employer's contributions void-- Deduction from wages prohibited--Violation as misdemeanor.
61-5-56      Adjustment and refund of erroneous contributions.
61-5-57      Interest on delinquent contributions.
61-5-58      Penalty for failure to timely pay contributions or submit reports.
61-5-59      Delinquent contributions as lien on employer's property--Attachment and continuation of lien.
61-5-60      Notice of lien filed with register of deeds.
61-5-61      Book maintained by register of deeds--Contents of lien entry--Endorsement and recording of notice--Exemption from fees.
61-5-62      Distress warrant for collection of contributions--Sale of property and disposition of proceeds--Sheriff's compensation.
61-5-63      Return of uncollectible distress warrant.
61-5-64      Liability of county officer for failure to issue or execute distress warrant.
61-5-65      Satisfaction of lien recorded on payment of contributions.
61-5-66      Civil action for collection of contributions--Preference on court calendar.
61-5-67      Action in South Dakota for contributions to other states--Reciprocity.
61-5-68      Priority of contribution claims in state insolvency proceedings .
61-5-69      Priority of contribution claims in bankruptcy proceedings.
61-5-70      Cancellation of uncollectible unemployment insurance contributions.


     61-5-1.   Employer subject to title for entire year. Any employing unit which is or becomes an employer subject to this title within any calendar year, is subject to this title during the whole of the calendar year.

Source: SL 1936 (SS), ch 3, § 8; SDC 1939, § 17.0823 (1); SL 1941, ch 86, § 1; SL 1943, ch 77, § 5; SL 1961, ch 107, § 2; SL 2008, ch 277, § 71.


     61-5-2.   Repealed by SL 1971, ch 276, § 93.


     61-5-3.   Elective coverage of employer--Minimum period of coverage--Notice of termination. An employing unit, not otherwise subject to this title, which files with the Department of Labor and Regulation its written election to become an employer subject hereto for not less than two calendar years, shall, with the written approval of such election by the department, become an employer subject hereto to the same extent as all other employers, as of the date stated in such approval, and shall cease to be subject hereto as of January first of any calendar year subsequent to such two calendar years, only if the employing unit has filed with the department a written notice to that effect prior to the first day of July of such calendar year.

Source: SL 1936 (SS), ch 3, § 8; SDC 1939, § 17.0823 (3) (a); SL 1941, ch 86, § 1; SL 1943, ch 77, § 5; SL 1961, ch 107, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     61-5-4.   Elective coverage of distinct place of business--Minimum period of coverage--Notice of termination. Any employing unit for which services that do not constitute employment as defined in this title are performed, may file with the Department of Labor and Regulation a written election that all such services performed by individuals in its employ in one or more distinct establishments or places of business shall be deemed to constitute employment for all the purposes of this title for not less than two calendar years. Upon the written approval of such election by the department, such services shall be deemed to constitute employment subject to this title from and after the date stated in such approval. Such services shall cease to be deemed employment subject hereto as of January first of any calendar year subsequent to such two calendar years, only if the employing unit has filed with the department a written notice to that effect prior to the first day of July of such calendar year.

Source: SL 1936 (SS), ch 3, § 8; SDC 1939, § 17.0823 (3) (b); SL 1941, ch 86, § 1; SL 1943, ch 77, § 5; SL 1961, ch 107, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     61-5-5.   Termination of elective coverage on notice by secretary. The secretary of labor and regulation may terminate any election agreement under § 61-5-3 or 61-5-4 upon thirty days' written notice to the employer.

Source: SDC 1939, § 17.0823 (3) (c) as added by SL 1961, ch 107, § 2; SL 2008, ch 277, § 72; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     61-5-5.1.   Transferred to § 61-5-32 by SL 2012, ch 252, § 59.


     61-5-6 to 61-5-9.   Repealed by SL 1977, ch 420, § 38.


     61-5-10.   Repealed by SL 1973, ch 306, § 4.


     61-5-11.   Termination of coverage on application by employer no longer subject to title. An employing unit shall cease to be an employer subject to this title, only as of the first day of January of any calendar year, if it files with the department, prior to the first day of July of such year, a written application for termination of coverage, and the department finds that the employment in the preceding calendar year was not sufficient to make the employing unit liable under the provisions of §§ 61-1-4 to 61-1-9, inclusive. For the purpose of this section the two or more employing units mentioned in § 61-1-5 or 61-1-6 shall be treated as a single employing unit.

Source: SL 1936 (SS), ch 3, § 8; SDC 1939, § 17.0823 (2); SL 1939, ch 86, § 4; SL 1941, ch 86, § 1; SL 1943, ch 77, § 5; SL 1961, ch 107, § 2; SDCL § 61-5-51; SL 2012, ch 252, § 59.


     61-5-12.   Repealed by SL 1977, ch 420, § 38.


     61-5-13.   Repealed by SL 1973, ch 306, § 4.


     61-5-14.   Repealed by SL 1977, ch 420, § 38.


     61-5-15.   Termination of coverage on transfer of account to successor in business. The department shall terminate the coverage of any employing unit as of the date on which the employer ceases to have employment because of the sale of the employer's entire business and the employing unit's entire rating account is transferred to another employer under § 61-5-42.

Source: SDC 1939, § 17.0823 (2) as added by SL 1961, ch 107, § 2; SL 2008, ch 277, § 106; SDCL § 61-5-52; SL 2012, ch 252, § 59.


     61-5-16.   Repealed by SL 2008, ch 277, § 75.


     61-5-17.   Termination of coverage on employer's cessation of business. The department shall terminate coverage for any employer as of January first of any year, if the employer ceases business for any purpose and one calendar year has elapsed since the employer has employed one or more persons for twenty days, each day being in a different week, or has paid wages of one thousand five hundred dollars or more in a calendar quarter.

Source: SDC 1939, § 17.0823 (2) as added by SL 1961, ch 107, § 2; SL 1971, ch 276, § 50; SL 2008, ch 277, § 107; SDCL § 61-5-53; SL 2012, ch 252, § 59.


     61-5-18.   Provisions governing employers' contributions. Contributions to the unemployment compensation fund required for the purposes of this title shall be made and accounted for as provided by §§ 61-5-23 to 61-5-53, inclusive.

Source: SDC 1939, § 17.0822; SL 1947, ch 89, § 1; SDCL § 61-5-15; SL 2012, ch 252, § 59.


     61-5-18.1 to 61-5-18.4.   Temporary and obsolete.


     61-5-18.5 to 61-5-18.10.   Repealed by SL 1993, ch 377, §§ 4 to 9.


     61-5-18.11 to 61-5-18.13.   Repealed by SL 2008, ch 277, §§ 78 to 80.


     61-5-18.14.   Repealed by SL 2012, ch 252, § 56.


     61-5-18.15.   Transferred to § 61-5-25.1 by SL 2012, ch 252, § 59.


     61-5-18.16.   Transferred to § 61-5-31 by SL 2012, ch 252, § 59.


     61-5-18.17.   Transferred to § 61-5-25.2 by SL 2012, ch 252, § 59.


     61-5-19.   Repealed by SL 1984, ch 334, § 3.


     61-5-19.1.   Repealed by SL 2008, ch 277, § 81.


     61-5-20.   Repealed by SL 1971, ch 276, § 93.


     61-5-20.1.   Repealed by SL 1984, ch 334, § 4.


     61-5-20.2.   Transferred to § 61-5-24 by SL 2012, ch 252, § 59.


     61-5-20.3 to 61-5-20.7.   Transferred to §§ 61-5-26 to 61-5-26.4 by SL 2012, ch 252, § 59.


     61-5-21.   Transferred to § 61-5-27 by SL 2012, ch 252, § 59.


     61-5-22.   Repealed by SL 1984, ch 335, § 1.


     61-5-23.   Rules establishing method of computing employers' contributions. The secretary of labor and regulation shall promulgate rules pursuant to chapter 1-26 to establish the method for determining the contribution rate applicable to each employer on the basis of the employer's actual experience in the payment of contributions and with respect to benefits charged against the employer's individual experience-rating account, in accordance with the requirements of §§ 61-5-24 to 61-5-28, inclusive and 61-5-31.

Source: SL 1937, ch 224, § 3; SDC 1939, § 17.0822 (3); SL 1947, ch 89, § 1; SDC Supp 1960, § 17.0822 (2); SL 1961, ch 106, § 2; SL 1993, ch 375, § 27; SL 2008, ch 277, § 76; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-5-17; SL 2012, ch 252, § 59.


     61-5-23.1.   Repealed by SL 1971, ch 276, § 93.


     61-5-23.2.   Repealed by SL 2008, ch 277, § 86.


     61-5-24.   Initial contribution rates for employers--Employer classification--Experience rating. An employer subject to this title has a contribution rate of one and two tenths percent the first year and, if the employer has a positive account balance at the beginning of subsequent years, a contribution rate of one percent thereafter until the employer qualifies for experience rating. However, an employer subject to this title who is classified in construction services shall be assigned a rate of six percent the first year and, if the employer has a positive account balance at the beginning of subsequent years, a contribution rate of three percent thereafter until the employer qualifies for experience rating. Any employer classification prior to January 1, 2001, shall be assigned pursuant to Division C of the Standard Industrial Classification Manual of 1987 as prepared by the Statistical Policy Division of the Office of Management and Budget, Office of the President. Any employer classification after December 31, 2000, shall be assigned pursuant to Sector 23 of the North American Industry Classification System Manual, which is prepared by the Statistical Policy Division of the Office of Management and Budget, Office of the President. An employer qualifies for experience rating for a year and is rated pursuant to § 61-5-25 if, as of the computation date applicable to that year, benefits have been chargeable to the employer's account throughout each of the two consecutive twelve-month periods immediately preceding the computation date.

Source: SL 1971, ch 276, § 38; SL 1982, ch 369, § 8; SL 1983, ch 382; SL 1984, ch 334, §§ 1, 5; SL 1987, ch 387, § 4; SL 1988, ch 413, § 3; SL 1989, ch 448, § 3; SL 1991, ch 416, § 3; SL 1993, ch 378, § 3; SL 2000, ch 252, § 1; SDCL § 61-5-20.2; SL 2012, ch 252, § 59.


     61-5-24.1, 61-5-24.2.   Transferred to §§ 61-5-29, 61-5-29.1 by SL 2012, ch 252, § 59.


     61-5-25.   Employer's contribution rate--Rate schedule based on average high cost multiplier ratio. If an employer has met the requirements of § 61-5-24 on the computation date for the year, then the employer's contribution rate shall be the rate appearing in Column "A" on the same line the employer's reserve ratio appears in Column "B" of the rate schedule applicable to that year. The computation date for calendar year 2012 and each year thereafter is June thirtieth of the preceding year.
     The rate schedule for each calendar year shall be determined based upon the South Dakota average high cost multiplier ratio. The average high cost multiplier ratio is calculated by dividing the amount in the unemployment compensation fund, as established by § 61-4-1, as of June thirtieth of the preceding year, by the amount required in the unemployment compensation fund that equals the average high cost multiple of 1.0, as of December thirty-first of the last completed calendar year.
     Schedule A is in effect for any calendar year when the South Dakota average high cost multiplier ratio is less than 1.60.
     Schedule B is in effect for any calendar year when the South Dakota average high cost multiplier ratio is greater than or equal to 1.60.
     For purposes of this section, the term, average high cost multiple, has the same meaning given in Code of Federal Regulations, title 20, section 606.3, as amended on September 17, 2010. An amount equal to an average high cost multiple of 1.0 is a federal measure of adequate reserves in relation to the state's current economy.

Source: SDC 1939, § 17.0822 (2) (b) (1) as added by SL 1947, ch 89, § 1; SL 1953, ch 76, § 3; SL 1961, ch 106, § 2; SL 1971, ch 277, § 1; SL 1982, ch 371, § 1; SL 1983, ch 381, § 1; SL 1984, ch 334, §§ 2, 5; SL 1987, ch 387, § 3; SL 2008, ch 277, § 77; SL 2011, ch 225, § 1; SDCL § 61-5-18; SL 2012, ch 252, § 59; SL 2017, ch 217, § 1.


     61-5-25.1.   Employer's reserve ratio for 2007 through 2009. The employer's reserve ratio for calendar year 2007 through calendar year 2009 shall be the result obtained by dividing the balance of credits existing in the employer's experience-rating account by the total taxable payroll of the employer for the preceding three calendar years.

Column "A"  
Column "B"
 
Contribution Rate  
Reserve Ratio
 
8.50%        Less than .7.00%  
8.00%       .7.00% and Less than .6.50%  
7.50%       .6.50% and Less than .6.00%  
7.00%       .6.00% and Less than .5.50%  
6.50%       .5.50% and Less than .5.00%  
6.00%       .5.00% and Less than .4.50%  
5.50%       .4.50% and Less than .4.00%  
5.00%       .4.00% and Less than .3.50%  
4.50%       .3.50% and Less than .3.00%  
4.00%       .3.00% and Less than .2.50%  
3.50%       .2.50% and Less than .2.00%      
3.00%       .2.00% and Less than .1.50%  
2.50%       .1.50% and Less than .1.00%  
2.00%       .1.00% and Less than .0.50%  
1.50%       .0.50% and Less than 0.00%  
1.00%        0.00% and Less than 0.20%  
0.90%        0.20% and Less than 0.40%  
0.80%        0.40% and Less than 0.60%  
0.70%        0.60% and Less than 0.80%  
0.60%        0.80% and Less than 1.00%  
0.50%        1.00% and Less than 1.20%  
0.40%        1.20% and Less than 1.30%  
0.30%        1.30% and Less than 1.40%  
0.20%        1.40% and Less than 1.50%  
0.10%        1.50% and Less than 1.60%  
0.00%        1.60% and Over  

Source: SL 2006, ch 267, § 3; SL 2010, ch 247, § 2, eff. Mar. 10, 2010; SDCL § 61-5-18.15; SL 2012, ch 252, § 59.


     61-5-25.2.   Employer's contribution rates for 2010 through 2014. The employer's reserve ratio for calendar year 2010 and 2011 is the result obtained by dividing the balance of credits existing in the employer's experience-rating account by the total taxable payroll of the employer for the preceding three calendar years. The employer's reserve ratio for calendar year 2012 and thereafter is the result obtained by dividing the balance of credits existing in the employer's experience-rating account as of June thirtieth preceding the year for which the rate is to be computed by the total taxable payroll of the employer for the preceding three fiscal years. The employer's experience-rating account balance for 2012 and thereafter for the purpose of this section is the balance on July thirty-first of the year preceding the year for which rates are computed and is the difference between the contributions paid through July thirty-first and the benefits paid through the preceding June thirtieth.

Column "A"   Column "B"  
Contribution Rate   Reserve Ratio  
9.50%        Less than -6.50%  
9.00%       -6.50% and Less than -6.00%  
8.50%       -6.00% and Less than -5.50%  
8.00%       -5.50% and Less than -5.00%  
7.50%       -5.00% and Less than -4.50%  
7.00%       -4.50% and Less than -4.00%  
6.50%       -4.00% and Less than -3.50%  
6.00%       -3.50% and Less than -3.00%  
5.50%       -3.00% and Less than -2.50%  
5.00%       -2.50% and Less than -2.00%  
4.50%       -2.00% and Less than -1.50%  
4.00%       -1.50% and Less than -1.00%  
3.50%       -1.00% and Less than -0.75%  
3.00%       -0.75% and Less than -0.50%  
2.50%       -0.50% and Less than -0.25%  
2.00%       -0.25% and Less than 0.00%  
1.50%       0.00% and Less than 0.50%  
1.25%       0.50% and Less than 0.75%  
1.00%       0.75% and Less than 1.00%  
0.50%       1.00% and Less than 1.25%  
0.35%       1.25% and Less than 1.50%  
0.20%       1.50% and Less than 2.00%  
0.10%       2.00% and Less than 2.50%  
0.00%       2.50% and Over  

     The contribution rates provided in this section apply to and are retroactive to taxable wages paid on and after January 1, 2010, through December 31, 2014.

Source: SL 2010, ch 247, § 3, eff. Mar. 10, 2010; SL 2011, ch 225, § 2; SDCL § 61-5-18.17; SL 2012, ch 252, § 59; SL 2014, ch 248, § 1.


     61-5-25.3.   Employer's reserve ratio--Contribution rates for 2015 through 2017. The employer's reserve ratio for calendar year 2015 and each year thereafter is the result of the balance of credits existing in the employer's experience-rating account as of June thirtieth preceding the year the rate is to be calculated divided by the total taxable payroll of the employer for the preceding three fiscal years. The employer's experience-rating account balance for the purpose of this section is the balance on July thirty-first of the year preceding the year rates are calculated and is the difference between the contributions paid through July thirty-first and the benefits paid through the preceding June thirtieth.

Column "A"   Column "B"  
Contribution Rate   Reserve Ratio  
9.50%        Less than -7.00%  
9.00%       -7.00% and Less than -6.50%  
8.50%       -6.50% and Less than -6.00%      
8.00%       -6.00% and Less than -5.50%  
7.50%       -5.50% and Less than -5.00%  
7.00%       -5.00% and Less than -4.50%  
6.50%       -4.50% and Less than -4.00%  
6.00%       -4.00% and Less than -3.50%  
5.50%       -3.50% and Less than -3.00%  
5.00%       -3.00% and Less than -2.50%  
4.50%       -2.50% and Less than -2.00%  
4.00%       -2.00% and Less than -1.50%  
3.50%       -1.50% and Less than -1.00%  
3.00%       -1.00% and Less than -0.75%  
2.50%       -0.75% and Less than -0.50%  
2.00%       -0.50% and Less than -0.25%  
1.50%       -0.25% and Less than 0.00%  
1.00%       0.00% and Less than 0.50%  
0.75%       0.50% and Less than 0.75%  
0.60%       0.75% and Less than 1.00%  
0.40%       1.00% and Less than 1.25%  
0.30%       1.25% and Less than 1.50%  
0.20%       1.50% and Less than 1.75%  
0.10%       1.75% and Less than 2.25%  
0.00%       2.25% and Over  

     The contribution rates provided in this section apply to taxable wages paid on and after January 1, 2015, through December 31, 2017.

Source: SL 2014, ch 248, § 2; SL 2017, ch 217, § 2.


     61-5-25.4.   Employer's reserve ratio--Contribution rates for 2018 and thereafter. The employer's reserve ratio for calendar year 2018 and each year thereafter is the result of the balance of credits existing in the employer's experience-rating account as of June thirtieth preceding the year the rate is to be calculated divided by the total taxable payroll of the employer for the preceding three fiscal years. The employer's experience-rating account balance for the purpose of this section is the balance on July thirty-first of the year preceding the year rates are calculated and is the difference between the contributions paid through July thirty-first and the benefits paid through the preceding June thirtieth.

Column "A"   Column "B"  
Contribution Rate   Reserve Ratio  
Schedule A   Schedule B         
9.45%   9.35%       Less than -7.00%  
8.95%   8.85%       -7.00% and Less than -6.50%  
8.45%   8.35%       -6.50% and Less than -6.00%  
7.95%   7.85%       -6.00% and Less than -5.50%  
7.45%   7.35%       -5.50% and Less than -5.00%  
6.95%   6.85%       -5.00% and Less than -4.50%  
6.45%   6.35%       -4.50% and Less than -4.00%  
5.95%   5.85%       -4.00% and Less than -3.50%  
5.45%   5.35%       -3.50% and Less than -3.00%  
4.95%   4.85%       -3.00% and Less than -2.50%  
4.45%   4.35%       -2.50% and Less than -2.00%  
3.95%   3.85%       -2.00% and Less than -1.50%  
3.45%   3.35%       -1.50% and Less than -1.00%  
2.95%   2.85%       -1.00% and Less than -0.75%  
2.45%   2.35%       -0.75% and Less than -0.50%  
1.95%   1.85%       -0.50% and Less than -0.25%  
1.45%   1.35%       -0.25% and Less than 0.00%  
0.95%   0.85%       0.00% and Less than 0.50%  
0.70%   0.60%       0.50% and Less than 0.75%  
0.55%   0.45%       0.75% and Less than 1.00%  
0.35%   0.25%       1.00% and Less than 1.25%  
0.25%   0.15%       1.25% and Less than 1.50%  
0.15%   0.05%       1.50% and Less than 1.75%  
0.05%   0.00%       1.75% and Less than 2.25%  
0.00%   0.00%       2.25% and Over  

     The contribution rates provided in this section apply to taxable wages paid on and after January 1, 2018.

Source: SL 2017, ch 217, § 3.


     61-5-26 to 61-5-26.4.   Repealed by SL 2015, ch 259, §§ 4 to 8.


     61-5-27.   Reduced rate refused for delinquencies. The department may refuse a reduced rate to any employer who is delinquent for contributions, interest, or reports.

Source: SDC 1939, § 17.0822 (2) (b) (3) as added by SL 1947, ch 89, § 1; SL 1961, ch 106, § 2; SDCL § 61-5-21; SL 2012, ch 252, § 59.


     61-5-28.   Increase in all employers' rates on reduction of amount in the unemployment compensation fund--Application and duration of rate--Amount payable. If on the last day of any calendar quarter, the amount in the unemployment compensation fund, as established by § 61-4-1, including amounts receivable as federal reimbursements due the state for shareable benefit payments, is less than any amount appearing in Column A below, then all employers' rates shall be increased by the amount appearing in Column B opposite the lowest amount in Column A under which the fund has been reduced:

Column A  
Column B  
Balance in Fund       Rates  
$11,000,000   .1 %  
10,500,000   .2 %  
10,000,000   .3 %  
9,500,000   .4 %  
9,000,000   .5 %  
8,500,000   .6 %  
8,000,000   .7 %  
7,500,000   .8 %  
7,000,000   .9 %  
6,500,000   1.0 %  
6,000,000   1.25%  
5,500,000   1.5 %  


     The increased contribution rates apply to taxable wages paid on and after the first day of the immediately following calendar quarter. The rates shall remain in effect until the balance in the unemployment fund on the last day of any quarter is equal to or greater than one hundred fifty percent of the highest amount appearing in Column A. The increased rate shall be one-tenth of one percent if the balance in the fund is one hundred percent or more but less than one hundred fifty percent of the highest amount appearing in Column A. However under no circumstances may any employer be required to pay contributions at a rate including the adjustment percentage, of more than twelve percent. However, the increased contribution rates under this section shall not exceed one percent for taxable wages paid from January 1, 2010, through December 31, 2010, and may not exceed seventy-five hundredths of one percent for taxable wages paid from January 1, 2011, through December 31, 2011. Effective January 1, 2012, any rate increase based on this section will remain in effect for four consecutive calendar quarters. The rate for the second, third, and fourth quarters may increase based on the fund balance on the last day of the immediately prior quarter, but may not decrease from the prior quarter during the four consecutive quarters.
     The contribution rates provided in this section apply to and are retroactive to taxable wages paid on and after January 1, 2010.

Source: SDC 1939, § 17.0822 (2) (b) (3) as added by SL 1961, ch 106, § 2; SL 1971, ch 276, § 40; SL 1979, ch 349, § 2; SL 1981, ch 369, § 3; SL 1982, ch 371, § 4; SL 1983, ch 381, § 4; SL 2005, ch 280, § 1; SL 2006, ch 267, § 5; SL 2010, ch 247, § 4, eff. Mar. 10, 2010; SDCL § 61-5-23; SL 2012, ch 252, § 59.


     61-5-28.1.   Administrative fee. Each employer eligible for experience-rating as defined in § 61-5-24 on the computation date for the year, shall also pay an administrative fee on wages as defined by this title. If an employer's reserve ratio, as determined pursuant to § 61-5-25.4, is less than two and one-quarter percent, an administrative fee of two hundredths percent shall be paid by the employer.
     The terms and conditions of this title that apply to the payment and collection of contributions also apply to the payment and collection of the administrative fee. Proceeds from the administrative fee shall be deposited in the clearing account of the unemployment compensation fund for clearance only and may not become part of the fund. After clearance, the money derived from the administrative fee payments, less refunds made pursuant to the provisions of this title, shall be deposited in the employment security administration fund for expenditure as provided in § 61-3-24. No administrative fee payment may be credited to the employer's experience-rating account nor may be deducted in whole or in part by any employer from the wages of individuals in its employ.
     The administrative fee provided in this section applies to taxable wages paid on and after January 1, 2018.

Source: SL 2017, ch 217, § 4.


     61-5-29.   Investment fee. Employers required by this title to pay contributions, except employers pursuant to chapter 61-5A, that reimburse the unemployment compensation trust fund for benefits paid in lieu of contributions, shall also pay an employer's investment in South Dakota's future fee, hereinafter referred to as the, investment fee, on wages as defined by this title. The fee rate for employers not eligible for experience rating, as defined in § 61-5-24, shall be seventy hundredths percent through calendar year 2006 and fifty-five hundredths percent on and after January 1, 2007. If an employer is eligible for experience rating, the employer's reserve ratio shall be determined pursuant to § 61-5-25.3 through calendar year 2017 and pursuant to § 61-5-25.4 for calendar year 2018 and each year thereafter, and the employer's investment fee rate shall be the rate appearing in column "A" on the same line the employer's reserve ratio appears in column "B" of the following rate schedules.
     From January 1, 1993, to December 31, 2006, inclusive:

Column "A"  
Column "B"
 
Investment Fee Rate  
Reserve Ratio
 
0.70%        Less than 0.80%  
0.60%       0.80% and Less than 1.00%  
0.50%       1.00% and Less than 1.20%  
0.40%       1.20% and Less than 1.30%  
0.30%       1.30% and Less than 1.40%  
0.20%       1.40% and Less than 1.50%  
0.10%       1.50% and Less than 1.60%  
0.00%       1.60% and Over  

     From January 1, 2007, to December 31, 2007, inclusive:

Column "A"  
Column "B"
 
Investment Fee Rate  
Reserve Ratio
 
0.60%       Less than 1.00%  
0.50%       1.00% and Less than 1.20%  
0.40%       1.20% and Less than 1.30%  
0.30%       1.30% and Less than 1.40%  
0.20%       1.40% and Less than 1.50%  
0.10%       1.50% and Less than 1.60%  
0.00%       1.60% and Over  

     From January 1, 2008, to December 31, 2008, inclusive:


Column "A"  
Column "B"
 
Investment Fee Rate  
Reserve Ratio
 
0.58%       Less than 1.00%  
0.50%       1.00% and Less than 1.20%  
0.40%       1.20% and Less than 1.30%  
0.30%       1.30% and Less than 1.40%  
0.20%       1.40% and Less than 1.50%  
0.10%       1.50% and Less than 1.60%  
0.00%       1.60% and Over  

     From January 1, 2009, to December 31, 2009, inclusive:

Column "A"  
Column "B"
 
Investment Fee Rate  
Reserve Ratio
 
0.56%       Less than 1.00%  
0.50%       1.00% and Less than 1.20%  
0.40%       1.20% and Less than 1.30%  
0.30%       1.30% and Less than 1.40%  
0.20%       1.40% and Less than 1.50%  
0.10%       1.50% and Less than 1.60%  
0.00%       1.60% and Over  

     From January 1, 2010, to December 31, 2010, inclusive:

Column "A"  
Column "B"
 
Investment Fee Rate  
Reserve Ratio
 
0.55%       Less than 1.00%  
0.50%       1.00% and Less than 1.20%  
0.40%       1.20% and Less than 1.30%  
0.30%       1.30% and Less than 1.40%  
0.20%       1.40% and Less than 1.50%  
0.10%       1.50% and Less than 1.60%  
0.00%       1.60% and Over  

     Beginning January 1, 2011:

Column "A"  
Column "B"
 
Investment Fee Rate  
Reserve Ratio
 
0.53%       Less than 1.00%  
0.50%       1.00% and Less than 1.20%  
0.40%       1.20% and Less than 1.30%  
0.30%       1.30% and Less than 1.40%  
0.20%       1.40% and Less than 1.50%  
0.10%       1.50% and Less than 1.60%  
0.00%       1.60% and Over  

     The terms and conditions of this title that apply to the payment and collection of contributions also apply to the payment and collection of the investment fee. Proceeds from the investment fee shall be deposited in the clearing account of the unemployment compensation fund for clearance only and may not become part of the fund. After clearance, the money derived from the investment fee payments, less refunds made pursuant to the provisions of this title, shall be deposited in the employer's investment in South Dakota's future special revenue fund as provided for in § 61-5-29.1. No investment fee payment may be credited to the employer's experience-rating account nor may be deducted in whole or in part by any employer from the wages of individuals in its employ.
     The investment fee rate may not be increased over the applicable 1987 investment fee rate for any employer with a positive balance in the employer's experience-rating account on the computation date, as established in rules promulgated by the secretary of labor and regulation pursuant to chapter 1-26, for the current year and the year preceding the current year.
     The investment rates provided in this section apply to and are retroactive to taxable wages paid on and after January 1, 1993.

Source: SL 1987, ch 387, § 5; SL 1988, ch 413, § 4; SL 1989, ch 448, § 4; SL 1991, ch 416, § 4; SL 1993, ch 375, § 28; SL 1993, ch 378, § 4; SL 2006, ch 268, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2011, ch 225, § 3; SL 2011, ch 227, § 1, eff. Mar. 17, 2011; SDCL § 61-5-24.1; SL 2012, ch 252, § 59; SL 2017, ch. 217, § 5.


     61-5-29.1.   Employer's investment in state's future fund--Purposes--Expenditures. There is hereby created in the state treasury a special revenue fund to be known as the employer's investment in South Dakota's future fund. Such fund shall be used for purposes related to research and economic development for the state. Expenditures from such fund are subject to the provisions of chapters 4-7, 4-8A and 4-8B.

Source: SL 1987, ch 387, § 6; SDCL § 61-5-24.2; SL 2012, ch 252, § 59.


     61-5-29.2.   Transferred to § 61-5-41 by SL 2012, ch 252, § 59.


     61-5-30.   Repealed by SL 2005, ch 280, § 3.


     61-5-31.   Interest on negative balance in employer's experience rating account. Any employer whose experience rating account, as determined pursuant to § 61-5-25, has a negative reserve shall, in addition to the contribution rate, pay interest on the negative balance in the employer's experience rating account, excluding any negative balance existing on December 31, 2006. Following December 31, 2008, and each year thereafter, the department shall determine the interest due and owing on each negative balance account. Interest shall be owed only if the employer had a negative account balance on the computation date used for the annual interest calculation and a negative account balance on the ending date of each of the seven preceding calendar quarters. The interest rate shall be the average of the quarterly interest rates paid by the United States Treasury on unemployment insurance trust fund reserves in the calendar year ending on the interest calculation date. The interest rate so determined will be applied to the amount by which the negative account increased from December 31, 2006, or from the date the employer became subject to this title if later, to the computation date used for the interest calculation date for the year. Interest due and owing shall be paid in equal quarterly payments during the year following the computation date, with each payment due on the last day of each quarter. The computation date and experience rating account balance used to determine contribution rates shall be used in the application of this section. Any interest payments shall be credited to the experience rating account of the employer. The terms and conditions of this title which apply to the payment and collection of contributions also apply to the payment and collection of the negative account interest assessments.

Source: SL 2006, ch 267, § 4; SL 2011, ch 226, § 1; SDCL § 61-5-18.16; SL 2012, ch 252, § 59.


     61-5-32.   Contributions by nonprofit organizations or political subdivisions--Direct payment of benefits in lieu of contributions. Any nonprofit organization or group of such organizations or political subdivisions which, pursuant to § 61-1-13 or 61-1-15 and 61-1-36, is, or becomes, subject to this title shall pay contributions under the provisions of chapter 61-5, unless it elects, as provided in chapter 61-5A, to pay to the department for the unemployment fund an amount equal to the amount of regular benefits and, in the case of nonprofit organizations of one-half of the extended benefits paid, or, in the case of political subdivisions, the extended benefits paid, that is attributable to service in the employ of the nonprofit organization or political subdivision, to individuals for weeks of unemployment which begin during the effective period of the election.

Source: SL 1971, ch 276, § 51; SL 1977, ch 420, § 18; SL 2008, ch 277, § 73; SDCL § 61-5-5.1; SL 2012, ch 252, § 59.


     61-5-32.1 to 61-5-32.5.   Transferred to §§ 61-5-46 to 61-5-50 by SL 2012, ch 252, § 59.


     61-5-33.   Rights of appeal under political subdivision coverage. Both the claimant and the governing body may appeal as provided in § 61-7-5. Any decision reached pursuant to that section is binding.

Source: SDC 1939, § 17.0823 (3) (d) (6) as added by SL 1965, ch 99; SL 2008, ch 277, § 74; SDCL § 61-5-11; SL 2012, ch 252, § 59.


     61-5-33.1.   Transferred to § 61-5-51 by SL 2012, ch 252, § 59.


     61-5-33.2.   Transferred to § 61-5-43 by SL 2012, ch 252, § 59.


     61-5-33.3.   Transferred to § 61-5-52 by SL 2012, ch 252, § 59.


     61-5-34.   Voluntary additional contributions credited to employer's account. Any employer may at any time make voluntary contributions to the fund, additional to the contributions required under this chapter, to be credited to the employer's account.

Source: SDC 1939, § 17.0822 (2) (b) (2) as added by SL 1947, ch 89, § 1; SL 1961, ch 106, § 2; SL 2008, ch 277, § 87; SDCL § 61-5-24; SL 2012, ch 252, § 59.


     61-5-35.   Contributions paid in accordance with rules. Contributions for each calendar year shall be paid by each employer to the department for the fund in accordance with rules promulgated by the department pursuant to chapter 1-26.

Source: SL 1936 (SS), ch 3, § 7; SL 1937, ch 224, § 3; SDC 1939, § 17.0822 (1) (a); SL 1947, ch 89, § 1; SL 1961, ch 106, § 1; SL 1993, ch 375, § 29; SDCL § 61-5-25; SL 2012, ch 252, § 59.


     61-5-36.   Deduction of contributions from wages prohibited. No contributions may be deducted in whole or in part by any employer from the wages of any employee.

Source: SL 1936 (SS), ch 3, § 7; SL 1937, ch 224, § 3; SDC 1939, § 17.0822 (1) (b); SL 1947, ch 89, § 1; SL 1961, ch 106, § 1; SL 2008, ch 277, § 88; SDCL § 61-5-26; SL 2012, ch 252, § 59.


     61-5-37.   Contributions credited to experience-rating accounts. The Department of Labor and Regulation shall credit to the experience-rating account of each employer all contributions paid by the employer or the employer's predecessor whose experience-rating the employer acquired. However, the increased contributions required pursuant to § 61-5-28 may not be credited to the employers' experience-rating account.

Source: SDC 1939, § 17.0822 (3) as added by SL 1947, ch 89, § 1; SL 1953, ch 78; SL 1961, ch 106, § 3; SL 1971, ch 276, § 41; SL 1981, ch 369, § 2; SL 2008, ch 277, § 89; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-5-27; SL 2012, ch 252, § 59.


     61-5-38.   Benefits charged against accounts--Allocation among successive employers in base period. Unless otherwise provided in § 61-5-39, or in 61-7-10.1, a proportionate amount of the maximum benefits payable shall be charged against the accounts of employers in the base period under the provisions of this title in inverse chronological order in the same proportion that the wages earned under the employers bears to the total wages earned by the claimant during the claimant's base period for insured work under the employers.

Source: SDC 1939, § 17.0822 (3) (a) as added by SL 1947, ch 89, § 1; SL 1953, ch 78; SL 1961, ch 106, § 3; SL 1971, ch 276, § 42; SL 2008, ch 277, § 90; SDCL § 61-5-28; SL 2012, ch 252, § 59.


     61-5-38.1.   Repealed by SL 1983, ch 383, § 1.


     61-5-39.   Benefits charged against experience-rating accounts--Events for which account not chargeable--Erroneous payments. Each employer's experience-rating account shall be charged with all benefits chargeable, as provided in this title, except extended benefits paid as provided in §§ 61-6-49 to 61-6-66, inclusive, against wages paid for employment by the employer. However, no benefits paid on the basis of a period of employment may be charged to the experience-rating account of any employer, except as provided in § 61-5-41, if the claimant:
             (1)      Voluntarily separated without good cause attributable to the employer or the employment;
             (2)      Was discharged or suspended for misconduct connected with the employment, or for conduct mandated by religious belief which belief cannot be reasonably accommodated by the employer;
             (3)      Was discharged or suspended for inability or incompetence to successfully complete a ninety-day probationary period established between the employer and employee at the time of employment;
             (4)      Earned total base period wages of less than one hundred dollars with one employer;
             (5)      Is receiving benefits while in approved training authorized by § 61-6-21;
             (6)      Performed services while incarcerated in a custodial or penal institution and terminated such employment because of his transfer or release from the institution;
             (7)      Received benefits for unemployment directly caused by a major natural disaster declared by the president pursuant to section 410(a) of the Robert T. Stafford Disaster Relief and Employment Assistance Act, 42 U.S.C. § 5177, if the individual would have been eligible for disaster unemployment assistance with respect to that unemployment but for their receipt of unemployment insurance benefits;
             (8)      Received benefits for unemployment resulting directly from the reinstatement of another employee upon that employee's completion of service in the uniformed services as provided in 38 U.S.C. § 4303(13) as of January 1, 2005, or the completion of state active duty by members of the National Guard who are activated pursuant to a call from the Governor as provided by law; or
             (9)      Voluntarily separated to accompany a spouse who was reassigned from one military assignment to another.
     However, no relief of charges applies if the department determines that an erroneous payment has been made because the employer, or an agent of the employer, was at fault for failing to respond timely or adequately to the department's request for information relating to the payment of benefits. For the purposes of this section, an erroneous payment is a payment that would not have been made but for the failure of the employer or the employer's agent to fully respond to the department's request pursuant to § 61-7-5.

Source: SDC 1939, § 17.0822 (4) (c) as added by SL 1943, ch 77, § 4; SL 1947, ch 89, § 1; SL 1951, ch 94, § 6; SL 1953, ch 78; SDC Supp 1960, § 17.0822 (3) (b); SL 1961, ch 106, § 3; SL 1971, ch 276, § 46; SL 1981, ch 370; SL 1982, ch 372, § 1; SL 1984, ch 336, § 1; SL 1987, ch 388, § 1; SL 1989, ch 449, § 3; SL 1991, ch 413, § 2; SL 1994, ch 392, § 1; SL 2005, ch 283, § 1; SDCL § 61-5-29; SL 2012, ch 252, § 59; SL 2012, ch 253, § 2; SL 2013, ch 258, § 2.


     61-5-40.   Charges to experience-rating accounts not applicable to employers reimbursing benefits. The provisions of § 61-5-39 do not apply to any employer reimbursing the department for benefits in lieu of contributions.

Source: SL 1973, ch 306, § 1; SL 2008, ch 277, § 91; SDCL § 61-5-29.1; SL 2012, ch 252, § 59.


     61-5-41.   Proration among all employer experience-rating accounts of benefits paid but not charged to employer's experience-rating account. Benefits paid but not charged to the experience-rating account of any employer based on subdivisions 61-5-39(1) to (9), inclusive, shall be prorated among all the employer experience-rating accounts as follows:
     One hundred percent of such noncharges for the preceding calendar year are divided by the total taxable payroll for the preceding calendar year. The ratio obtained is multiplied by each experience-rated employer's taxable payroll for the preceding year and the result of this computation is deducted from each employer's account balance. The deductions from each employer's account balance shall be credited to the pool account.

Source: SL 1982, ch 372, § 2; SL 1984, ch 336, § 2; SL 1987, ch 388, § 2; SL 1991, ch 413, § 3; SL 1994, ch 392, § 2; SL 2005, ch 280, § 2; SDCL § 61-5-29.2; SL 2012, ch 252, § 59; SL 2013, ch 258, § 3.


     61-5-42.   Succession to experience-rating account on acquisition of business by another--Federal standards to be met. Any individual, group of individuals, or employing unit that acquires its organization, trade or business from an employer for whom an experience-rating account has been maintained by the Department of Labor and Regulation, shall immediately notify the department and upon the mutual consent of the parties concerned and approval of the department, may assume the position of the employer with respect to the experience-rating account. If the experience-rating account is not assumed by the successor employer or employing unit, the initial contribution rate for employers pursuant to § 61-5-24 shall be assigned to the successor employer or employing unit. The department shall promulgate rules pursuant to chapter 1-26 to carry out the provisions of this section consistent with federal standards of additional credit allowance as provided in section 3303 of the Internal Revenue Code.

Source: SL 1937, ch 224, § 3; SDC 1939, § 17.0822 (6); SL 1939, ch 86, § 3; SL 1941, ch 85, § 4; SL 1947, ch 89, § 1; SDC Supp 1960, § 17.0822 (5); SL 1961, ch 106, § 4; SL 1971, ch 276, § 49; SL 1982, ch 369, § 9; SL 1988, ch 414; SL 1993, ch 375, § 30; SL 2005, ch 281, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-5-33; SL 2012, ch 252, § 59.


     61-5-43.   Circumstance warranting return of experience-rating accounts to sellers. Any experience-rating account that has been transferred to a successor employer pursuant to § 61-5-42 based on the sale of property through contract for deed shall be returned to the seller at the seller's option if the buyer defaults on the contract.

Source: SL 1997, ch 301, § 1; SDCL § 61-5-33.2; SL 2012, ch 252, § 59.


     61-5-44.   New experience-rating account established after five years without coverage--Prior balances not considered--Exception. Any employer who has had no employment in South Dakota subject to this title for five consecutive years shall establish a new experience-rating account for the determination of future contribution rates, and any balances or overdrafts in the experience-rating account established prior to the interruption of operations in South Dakota or the interruption of coverage under this title may not be used in the determination of such future rates. However, an entity that has never discontinued operations has the option of resuming its experience rating account balance if the entity again becomes an employer subject to this title within the immediately following second consecutive five-year period.

Source: SDC 1939, § 17.0822 (6) as added by SL 1949, ch 76, § 4; SL 1997, ch 300, § 1; SL 2008, ch 277, § 92; SDCL § 61-5-31; SL 2012, ch 252, § 59.


     61-5-45.   Experience-rating account continued during employer's military service--Reestablishment on resumption of business. If the department finds that an employer's business is closed solely because of the entrance of one or more of the owners, officers, partners, or the majority stockholder into the armed forces of the United States, any of its allies, or of the United Nations, the employer's account may not be terminated. If the business is resumed within two years after the discharge or release from active duty in the armed forces of the person, the employer's experience shall be deemed to have been continuous throughout the period. The experience ratio used for determining the rate of any employer shall be the total contribution paid by the employer minus all benefits, including benefits paid to any individual during the period the employer was in the armed forces, based upon wages paid by the employer prior to the employer's entrance into such forces, divided by the total payrolls for the three most recent calendar years during the whole of which, respectively, the employer has been in business.

Source: SDC 1939, § 17.0822 (2) (c) as added by SL 1951, ch 95; SL 1961, ch 106, § 2; SL 1971, ch 276, § 48; SL 2008, ch 277, § 93; SDCL § 61-5-32; SL 2012, ch 252, § 59.


     61-5-46.   Mandatory transfer of experience-rating account on transfer of business to another--Rate recalculation--Exception. Notwithstanding any other provision of law, the following provisions apply with regard to assignment of rates and transfers of experience:
             (1)      If an employer transfers its organization, trade, or business, or a portion thereof, to another employer and, at the time of the transfer, there is substantially common ownership, management, or control of the two employers, then the unemployment experience attributable to the transferred organization, trade, or business shall be transferred to the employer to whom the business is so transferred. The rates of both employers shall be recalculated and made effective immediately upon the date of the transfer of the organization, trade, or business; and
             (2)      If a person who is not an employer under this Title at the time the person acquires the organization, trade, or business of an employer, the unemployment experience of the acquired business may not be transferred to the person if the secretary finds that the person acquired the business solely or primarily for the purpose of obtaining a lower rate of contributions. Instead, the person shall be assigned the applicable new employer rate under the provisions of § 61-5-24. In determining whether the business was acquired solely or primarily for the purpose of obtaining a lower rate of contributions, the secretary shall use objective factors which may include the cost of acquiring the business, whether the person continued the business enterprise of the acquired business, how long the business enterprise was continued, or whether a substantial number of new employees were hired for performance of duties unrelated to the business activity conducted prior to acquisition.

Source: SL 2005, ch 281, § 2; SDCL § 61-5-32.1; SL 2012, ch 252, § 59.


     61-5-47.   Knowing violation or attempted violation of § 61-5-46 related to determining contribution rate assignment as misdemeanor--Additional penalties. If a person knowingly violates or attempts to violate provisions of § 61-5-46 related to determining the assignment of a contribution rate, or if a person knowingly advises another person in a way that results in a violation of such provision, the person is guilty of a Class 1 misdemeanor. In addition, the person is subject to the following penalties:
             (1)      If the person is an employer, the employer shall be assigned the highest rate assignable under this chapter for the rate year during which the violation or attempted violation occurred and the three rate years immediately following this rate year. However, if the person's business is already at the highest rate for any year, or if the amount of increase in the person's rate would be less than two percent for the year, then a penalty rate of contributions of two percent of taxable wages shall be imposed for such year; or
             (2)      If the person is not an employer, the person is subject to a civil penalty of not more than five thousand dollars. Any such fine shall be deposited in the penalty and interest account established under § 61-3-28.
     For purposes of this section, the term, knowingly, means having actual knowledge of or acting with deliberate ignorance or reckless disregard for the prohibition involved.

Source: SL 2005, ch 281, § 3; SDCL § 61-5-32.2; SL 2012, ch 252, § 59.


     61-5-48.   Rules to implement application of § 61-5-46. The secretary may promulgate rules pursuant to chapter 1-26 to implement the application of § 61-5-46 to the assignment of rates and transfers of experience.

Source: SL 2005, ch 281, § 4; SDCL § 61-5-32.3; SL 2012, ch 252, § 59.


     61-5-49.   Definitions applicable to §§ 61-5-46 to 61-5-48. Terms used in §§ 61-5-46 to 61-5-48, inclusive, mean:
             (1)      "Person," person as defined by section 7701(a)(1) of the Internal Revenue Code of 1986; and
             (2)      "Trade or business," includes the employer's workforce.

Source: SL 2005, ch 281, § 5; SDCL § 61-5-32.4; SL 2012, ch 252, § 59.


     61-5-50.   Interpretation and application of §§ 61-5-46 to 61-5-49 to meet federal standards. The provisions of §§ 61-5-46 to 61-5-49, inclusive, shall be interpreted and applied in such a manner as to meet the minimum requirements contained in any guidance or regulations issued by the United States Department of Labor.

Source: SL 2005, ch 281, § 6; SDCL § 61-5-32.5; SL 2012, ch 252, § 59.


     61-5-51.   Waiver of mandatory transfer of experience-rating account--Conditions. The Department of Labor and Regulation may waive the mandatory transfer of the experience-rating account required by § 61-5-46 if the inherent nature of the employing unit has substantially and permanently changed since July 1, 1988. The provisions of this section apply to account transfers occurring on or after July 1, 1992.

Source: SL 1992, ch 361; SL 2005, ch 281, § 7; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-5-33.1; SL 2012, ch 252, § 59.


     61-5-52.   Procedures to identify transfer or acquisition of business. The secretary shall establish procedures to identify the transfer or acquisition of a business for purposes of §§ 61-5-42, 61-5-46 to 61-5-51 and this section.

Source: SL 2005, ch 281, § 8; SDCL § 61-5-33.3; SL 2012, ch 252, § 59.


     61-5-53.   Pooled fund maintained by department--Moneys credited. The department shall maintain a pooled fund, all moneys in which shall be mingled and undivided, to which shall be credited:
             (1)      All realized earnings and gains on investments of the fund and interest paid on delinquent contributions;
             (2)      All contributions paid by employers;
             (3)      All fines and penalties collected pursuant to the provisions of this title.

Source: SL 1937, ch 224, § 3; SDC 1939, § 17.0822 (5); SL 1947, ch 89, § 1; SDC Supp 1960, § 17.0822 (4); SL 2008, ch 277, § 94; SDCL § 61-5-34; SL 2012, ch 252, § 59.


     61-5-54.   Violation by employer to reduce benefits or contributions as misdemeanor--Separate offenses. Any employing unit or any officer or agent of an employing unit or any other person who makes a false statement or representation knowing it to be false, or who knowingly fails to disclose a material fact to prevent or reduce the payment of benefits to any individual entitled thereto or to avoid becoming or remaining subject to this title or to avoid or reduce any contribution or other payment required from an employing unit under this title, or who intentionally fails or refuses to make any such contributions or other payment or to furnish any reports required hereunder or to produce or permit the inspection or copying of records as required hereunder, commits a Class 2 misdemeanor; and each such false statement or representation or failure to disclose a material fact and each day of such failure or refusal shall constitute a separate offense.

Source: SL 1936 (SS), ch 3, § 16 (b); SDC 1939, § 17.9908; SL 1976, ch 158, § 43-6; SL 1978, ch 359, § 2; SDCL § 61-5-35; SL 2012, ch 252, § 59.


     61-5-55.   Employee's agreement to pay employer's contributions void-- Deduction from wages prohibited--Violation as misdemeanor. Any agreement by any individual in the employ of any person or concern to pay all or any portion of an employer's contributions, required under this title from such employer, is void.
     No employer may directly or indirectly make or require or accept any deduction from wages to finance the employer's contributions required from the employer. Any employer or officer or agent of an employer who shall directly or indirectly require any contribution from any such person in violation of this section or who shall directly or indirectly make or require or accept any deduction from wages to finance the employer's contributions required by this title commits a Class 2 misdemeanor.

Source: SL 1936 (SS), ch 3, § 15 (a); SDC 1939, §§ 17.0840, 17.9905; SL 1978, ch 359, § 2; SL 2008, ch 277, § 95; SDCL § 61-5-36; SL 2012, ch 252, § 59.


     61-5-56.   Adjustment and refund of erroneous contributions. If, not later than three years after the date on which any contributions or interest thereon have been paid, an employer who has paid the contributions or interest thereon makes application for adjustment thereof in connection with subsequent contribution payments, or for a refund thereof because the adjustment cannot be made, and the department determines that the contributions or interest, or any portion thereof, was erroneously collected, the department shall allow the employer to make an adjustment thereof, without interest, in connection with subsequent contribution payments by the employer. However, if the adjustment cannot be made, the department shall refund the amount, less any benefits which have been paid from the amount, without interest from the fund. For like cause and within the same period, adjustment or refund may be so made on the department's own initiative.

Source: SL 1936 (SS), ch 3, § 14 (d); SDC 1939, § 17.0827; SL 1941, ch 88; SL 1943, ch 77, § 6; SL 2008, ch 277, § 96; SDCL § 61-5-37; SL 2012, ch 252, § 59.


     61-5-57.   Interest on delinquent contributions. Any contribution unpaid on the date on which it is due and payable, as prescribed by the Department of Labor and Regulation, shall bear interest at the rate of one and one-half percent per month, or fractional part of a month from and after such date until payment plus accrued interest is received by the department. Interest collected pursuant to this section shall be paid into the employment security contingency fund.

Source: SL 1936 (SS), ch 3, § 14 (a); SDC 1939, § 17.0824; SL 1953, ch 76, § 4; SDC Supp 1960, § 17.0824 (1); SL 1968, ch 86, § 2; SL 1981, ch 369, § 6; SL 1986, ch 426; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-5-38; SL 2012, ch 252, § 59.


     61-5-58.   Penalty for failure to timely pay contributions or submit reports. A penalty of twenty-five dollars per month, or fractional part of a month shall be due and payable upon imposition of the penalty by the department, for failure to pay contributions, or for failure to submit required reports on or before the due date for the contributions or reports as fixed by the department. However, no penalty for any one delinquent contribution or report may exceed the sum of one hundred fifty dollars. Any penalty collected pursuant to this section shall be paid into the employment security contingency fund.

Source: SDC 1939, § 17.0824 (2) as added by SL 1953, ch 76, § 4; SL 1968, ch 86, § 2; SL 2008, ch 277, § 97; SDCL § 61-5-39; SL 2012, ch 252, § 59; SL 2016, ch 235, § 1.


     61-5-59.   Delinquent contributions as lien on employer's property--Attachment and continuation of lien. If any employer liable to pay contributions and interest, or either, refuses or neglects to pay the same, the amount, including any interest penalty or addition to the contribution, together with the costs that may accrue in addition thereto, shall be a lien in favor of the Department of Labor and Regulation upon all property and rights to property whether real or personal belonging to the employer.
     The lien attaches at the time the contribution becomes due and payable and continues until the liability for the contribution and interest, or either, is satisfied.

Source: SDC 1939, § 17.0825 (1) as added by SL 1941, ch 87; SL 2008, ch 277, § 98; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-5-40; SL 2012, ch 252, § 59.


     61-5-60.   Notice of lien filed with register of deeds. In order to preserve the lien provided by § 61-5-59 against subsequent mortgagees or purchasers for value without notice, or judgment creditors, the Department of Labor and Regulation shall file with the register of deeds in the county in which the property is located a notice of the lien.

Source: SDC 1939, § 17.0825 (1) as added by SL 1941, ch 87; SL 2008, ch 277, § 99; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-5-41; SL 2012, ch 252, § 59.


     61-5-61.   Book maintained by register of deeds--Contents of lien entry--Endorsement and recording of notice--Exemption from fees. The register of deeds of each county shall prepare and keep in the register of deed's office a suitable book so ruled as to show in appropriate columns the following data under the name of the employers arranged alphabetically:
             (1)      The name of the employer;
             (2)      The name of the Department of Labor and Regulation as lien claimant;
             (3)      Time notice of lien was received;
             (4)      Date of notice;
             (5)      Amount of lien then due;
             (6)      When satisfied.
     The register of deeds shall endorse on each notice of lien filed pursuant to § 61-5-60 the date, hour and minute when received, index that notice in the index book, and record the lien in the manner for recording real estate mortgages. The lien is effective from the time of the filing.
     The filing and recording of such liens and satisfactions shall be done without cost to the state. However, the register of deeds may destroy any record which the records destruction board, acting pursuant to § 1-27-19, declares to have no further administrative, legal, fiscal, research, or historical value.

Source: SDC 1939, § 17.0825 (1) as added by SL 1941, ch 87; SL 1981, ch 45, § 23; SL 1981, ch 371, § 7; SL 2008, ch 277, § 100; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-5-42; SL 2012, ch 252, § 59.


     61-5-62.   Distress warrant for collection of contributions--Sale of property and disposition of proceeds--Sheriff's compensation. After a notice of lien has been filed pursuant to § 61-5-60, the Department of Labor and Regulation may at any time require the county treasurer to issue a distress warrant in the same form as provided for in § 10-22-9 and deliver the warrant to the sheriff of the county. Immediately upon receipt of the warrant the sheriff shall proceed to collect the contributions and interest, or either, by seizure and sale of property in the manner provided in §§ 10-22-10 to 10-22-27, inclusive, and shall remit the contributions so collected to the department. For the service the sheriff shall be permitted to collect from the employer and retain as the sheriff's compensation the amount provided in § 10-22-28.

Source: SDC 1939, § 17.0825 (1) as added by SL 1941, ch 87; SL 2008, ch 277, § 101; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-5-43; SL 2012, ch 252, § 59.


     61-5-63.   Return of uncollectible distress warrant. If the sheriff is unable to find property of the employer which may be seized and sold, the sheriff shall, within thirty days after receipt of the warrant, endorse upon the face of the warrant the word, uncollectible and return the warrant to the county treasurer.

Source: SDC 1939, § 17.0825 (1) as added by SL 1941, ch 87; SL 2008, ch 277, § 102; SDCL § 61-5-44; SL 2012, ch 252, § 59.


     61-5-64.   Liability of county officer for failure to issue or execute distress warrant. Failure or refusal of the county treasurer to issue a distress warrant pursuant to § 61-5-62 if requested so to do or of the sheriff to attempt to execute the same, makes the officer failing to perform the officer's duty personally liable for the delinquent contributions and interest, or either, and the officer's contributions and interest, or either, may be recovered in an action by the department against the officer and the surety.

Source: SDC 1939, § 17.0825 (1) as added by SL 1941, ch 87; SL 2008, ch 277, § 103; SDCL § 61-5-45; SL 2012, ch 252, § 59.


     61-5-65.   Satisfaction of lien recorded on payment of contributions. Upon the payment of contributions and interest, or either, for which the department has filed lien notice with a register of deeds, the department shall forthwith file with the register of deeds a satisfaction of the lien notice. The register of deeds shall enter the satisfaction on the notice on file in the register of deed's office, and indicate the fact on the index aforesaid.

Source: SDC 1939, § 17.0825 (1) as added by SL 1941, ch 87; SL 2008, ch 277, § 104; SDCL § 61-5-46; SL 2012, ch 252, § 59.


     61-5-66.   Civil action for collection of contributions--Preference on court calendar. If, after due notice, any employer defaults in any payment of contributions or interest thereon, the amount due may be collected by a civil action by the attorney general in the name of the state of South Dakota, and the employer adjudged in default shall pay the cost of such action. Civil actions brought under this section to collect contributions or interest thereon from any employer shall be heard by the court at the earliest possible date and shall be entitled to preference upon the calendar of the court over all other civil actions except petitions for judicial review under this title and cases arising under the worker's compensation law of this state.

Source: SL 1936 (SS), ch 3, § 14 (b); SDC 1939, § 17.0825; SL 1941, ch 87; SDCL § 61-5-47; SL 2012, ch 252, § 59.


     61-5-67.   Action in South Dakota for contributions to other states--Reciprocity. Any state of the United States of America shall have the right to sue in the courts of South Dakota to recover any tax which may be owing to it for unemployment insurance contributions when the like right is accorded to the state of South Dakota by such state, whether such right is granted by a statutory authority, or as a matter of comity.

Source: SDC 1939, § 17.0825 (2) as added by SL 1951, ch 96; SDCL § 61-5-48; SL 2012, ch 252, § 59.


     61-5-68.   Priority of contribution claims in state insolvency proceedings. In the event of any distribution of an employer's assets pursuant to an order of any court under the laws of this state, including any receivership, assignment for benefit of creditors, adjudicated insolvency, composition, or similar proceeding, contributions then or thereafter due shall be paid in full prior to all other claims except taxes and claims for wages of not more than six hundred dollars to each claimant, earned within six months of the commencement of the proceeding.

Source: SL 1936 (SS), ch 3, § 14 (c); SDC 1939, § 17.0826; SL 1961, ch 107, § 3; SDCL § 61-5-49; SL 2012, ch 252, § 59.


     61-5-69.   Priority of contribution claims in bankruptcy proceedings. In the event of an employer's adjudication in bankruptcy, judicially confirmed extension proposal, or composition, under federal bankruptcy law, contributions due are entitled to such priority as is provided in federal bankruptcy law.

Source: SL 1936 (SS), ch 3, § 14 (c); SDC 1939, § 17.0826; SL 1961, ch 107, § 3; SL 2008, ch 277, § 105; SDCL § 61-5-50; SL 2012, ch 252, § 59.


     61-5-70.   Cancellation of uncollectible unemployment insurance contributions. If any liability was established under § 61-5-35, as well as interest, penalties, or fees remain unpaid by an employer ten years or more after the liability was established and reasonable efforts have been made to recover the liability, the secretary may declare the sums uncollectible and cancel the liability if satisfied there are no available means of collecting the liability. The secretary may declare at any time as uncollectible any amount due from an employer for which liability was established under § 61-5-35, as well as interest, penalties, or fees remain unpaid upon receipt of proper certification by a Department of Labor and Regulation representative that the liability is uncollectible due to death or bankruptcy.

Source: SL 2018, ch 284, § 1.


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