47:06:04:01.  Benefit eligibility of seasonal employees -- Determination. An employer who is in a seasonal industry as listed in § 47:06:01:02 shall file an application with the Department of Labor and Regulation for a determination of seasonal employment. If the department determines that an employer is operating in a seasonal industry, former employees who were engaged in other than year around work are eligible to draw benefits based on wages earned with the seasonal employer only for weeks of unemployment in which the major portion of the week falls within the designated period of operation of that seasonal industry.

          Source: SL 1975, ch 16, § 1; 9 SDR 81, 9 SDR 124, effective July 1, 1983; 19 SDR 182, effective June 2, 1993; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-1-54.

          Law Implemented: SDCL 61-1-54.

          47:06:04:03.  Initial benefit determination of individuals filing on both seasonal and nonseasonal wages. The Department of Labor and Regulation shall compute the maximum payable benefit for an individual with both seasonal and nonseasonal wages on the basis of all wages if the individual files the initial claim within the seasonal period. If the individual initially files outside the seasonal period, the department shall compute the benefit based only on nonseasonal wages.

          Source: SL 1975, ch 16, § 1; 9 SDR 81, 9 SDR 124, effective July 1, 1983; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-1-54.

          Law Implemented: SDCL 61-1-54.

          47:06:04:04.  Redetermination of benefit for individual with both seasonal and nonseasonal wages. If an individual with both seasonal and nonseasonal wages who filed an initial claim during a nonseasonal period is in active status at the beginning of the seasonal period, the Department of Labor and Regulation shall include the individual's seasonal wages and recompute the maximum payable benefits.

          If an individual with both seasonal and nonseasonal wages who filed a claim during a seasonal period is in active status at the end of the seasonal period, the Department of Labor and Regulation shall recompute the maximum payable benefits based only on nonseasonal wages.

          Source: SL 1975, ch 16, § 1; 9 SDR 81, 9 SDR 124, effective July 1, 1983; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-1-54.

          Law Implemented: SDCL 61-1-54.

          47:06:04:05.  Concurrent employment. If a claimant is currently working for a base period employer at the time a new claim for benefits is filed, the claimant's weekly benefit amount and minimum base period wages, as required by SDCL 61-6-4, shall be computed using total base period wages from all base period employers. The claimant's maximum benefit amount does not include, and the current employer is not chargeable for, benefits based on wages from the current employer if the employer continues to provide employment to the same extent as was provided during the base period and the employment provided is not "on-call" employment for which no work schedule is established. Employment which provides generally the same work schedule on a continuing basis but offers employees the option of accepting available work is not "on-call" employment.

          If the claimant later separates from the current employer or the employer fails to provide employment to the same extent as provided during the base period, benefits based on such employment shall be included in the maximum benefit amount and employer charges shall be determined under SDCL 61-5-39 or 61-5-40.

          Source: SL 1975, ch 16, § 1; 9 SDR 81, 9 SDR 124, effective July 1, 1983; 10 SDR 28, effective September 28, 1983; 12 SDR 213, effective July 14, 1986; 19 SDR 182, effective June 2, 1993; 21 SDR 188, effective May 7, 1995; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-7-1.

          Law Implemented: SDCL 61-6-2, 61-6-4, 61-6-8.

          47:06:04:15.  Reporting at other offices. An individual registered with a local labor office who leaves the area where registered for more than two weeks must reopen the claim, provide a current address, and register for employment services at the local labor office serving the area in which the individual now resides.

          Source: SL 1975, ch 16, § 1; 9 SDR 81, 9 SDR 124, effective July 1, 1983; 38 SDR 11, effective August 9, 2011; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-6-1(1).

          Law Implemented: SDCL 61-6-1.

          47:06:04:16.  Commencement of benefit year -- Withdrawal of claim. A new claim filed by a claimant who received an eligible determination establishes the commencement of a benefit year, unless the claim is withdrawn within the appeal period. A claim may not be withdrawn after a determination denying benefits based on SDCL 61-6-9, 61-6-14, 61-6-15, or 61-6-16 is issued.

          Source: SL 1975, ch 16, § 1; 9 SDR 81, 9 SDR 124, effective July 1, 1983; 11 SDR 86, effective January 1, 1985; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-7-1.

          Law Implemented: SDCL 61-7-1.

          47:06:04:17.  Waiting period and continued claims for benefits -- Time of filing. Claims for waiting period weeks or claims for benefits for weeks of total or partial unemployment shall be filed using any of the filing options offered by the department. Each claim shall be filed within seven calendar days following the last day of the week of unemployment for which benefits are claimed with the following exceptions:

          (1)  Claims filed within the subsequent seven-day period shall be accepted if good cause is shown for late filing;

          (2)  Claims for partial unemployment during a claim week filed within the subsequent seven-day period shall be accepted; or

          (3)  Claims filed within the subsequent seven-day period shall be accepted if reemployment occurred during the week following the claim week.

          Source: SL 1975, ch 16, § 1; 7 SDR 56, effective December 15, 1980; 9 SDR 81, 9 SDR 124, effective July 1, 1983; 24 SDR 136, effective April 12, 1998; 41 SDR 58, effective October 14, 2014.

          General Authority: SDCL 61-7-1.

          Law Implemented: SDCL 61-7-1.

          47:06:04:17.01.  Eligibility assessments. An individual that has filed a claim for benefits shall submit to periodic eligibility assessments as frequently as the public employment office schedules an assessment. The frequency of the eligibility assessments shall be determined by the following considerations:

          (1)  An individual's potential for being recalled to work by the individual's former employer;

          (2)  An individual's reason for separating from the previous employer;

          (3)  An individual's potential for employment within the individual's occupation and area of residence.

          An individual who fails to report for a scheduled eligibility assessment shall be denied benefits for the week in which the eligibility assessment was scheduled and for every subsequent week until the individual reschedules an assessment or establishes good cause for failing to report.

          Source: 9 SDR 81, 9 SDR 124, effective July 1, 1983; 15 SDR 128, effective February 26, 1989; 39 SDR 127, effective January 23, 2013; 41 SDR 58, effective October 14, 2014.

          General Authority: SDCL 61-7-1.

          Law Implemented: SDCL 61-6-1.

          47:06:04:17.02.  Reemployment services. Unless the secretary of the Department of Labor and Regulation determines that an individual has completed reemployment services, such as job search assistance services, or there is justifiable cause for an individual not to participate in such services, an unemployed individual is eligible to receive benefits for any week only if the individual participates in reemployment services determined by the secretary to be necessary for one of the following reasons:

          (1)  By means of a profiling system administered to an individual when the first benefit payment is issued, the secretary determines that the individual is likely to exhaust regular benefits and need reemployment services; or

          (2)  Based on an evaluation of the individual's experience, skills, and education level, the secretary determines that reemployment services will reduce the length of unemployment.

          Justifiable cause includes factors such as attending approved training or obtaining employment which will start within three weeks.

          Source: 21 SDR 86, effective November 10, 1994; 39 SDR 127, effective January 23, 2013; 46 SDR 11, effective July 31, 2019.

          General Authority: SDCL 61-7-1.

          Law Implemented: SDCL 61-6-1.

          47:06:04:21.  Criteria for "actively seeking work." To be considered able to work and available for work a claimant must be "actively seeking work." In determining what constitutes "actively seeking work," the secretary or the secretary's representative shall consider whether the efforts the claimant has made to obtain work have been reasonable and are efforts an unemployed individual is expected to make if the individual is honestly looking for work. Participation by the claimant in a department approved "reemployment services" program shall be considered to be "actively seeking work". For all other individuals, the criteria used by the secretary or representative to determine if a claimant is "actively seeking work" include the following:

          (1)  The prevailing occupational wage that the claimant is suited for by experience or training in the area where the claimant resides in relation to the wage the claimant is willing to accept. Individuals who have been trained for an occupation or have work experience in an occupation for which there is not current or anticipated demand in the area where they reside, as determined by the secretary or representative, must be available for work that they are capable of doing at the prevailing wage rate for that type of work; and

          (2)  Unless exempt under § 47:06:04:11, the job contacts made by the claimant which meet the following criteria:

               (a)  Claimants filing for regular benefits must make two job contacts in each week for which benefits are requested. Weekly claims for benefits payable after regular benefits are exhausted, such as extended, supplemental, or emergency benefits, require at least five job contacts in each week for which benefits are requested. The secretary or representative may change the number of required job contacts based on local labor market conditions; and

               (b)  Claimants must make the job contact in the manner customarily required by the employer. However, contact by telephone does not satisfy this requirement.

          Source: 7 SDR 56, effective December 15, 1980; 9 SDR 81, 9 SDR 124, effective July 1, 1983; 11 SDR 86, effective January 1, 1985; 18 SDR 62, effective October 9, 1991; 38 SDR 11, effective August 9, 2011; 39 SDR 127, effective January 23, 2013; 41 SDR 58, effective October 14, 2014.

          General Authority: SDCL 61-6-1(3).

          Law Implemented: SDCL 61-6-1.

          47:06:04:21.01.  Shift work availability. An individual who has earned wage credits in an occupation that generally requires shift work shall be available to work all shifts or work schedules unless the individual has a compelling reason for not working one or more shifts or work schedules.

          A compelling reason is an obligation or commitment and not simply the result of personal preference.

          Source: 9 SDR 81, 9 SDR 124, effective July 1, 1983; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-6-1(3).

          Law Implemented: SDCL 61-6-1.

          47:06:04:21.02.  Availability for work. Individuals with an established work relationship with an employer, such as a temporary employment service or a firm that provides employees the option of accepting any available work, are not available for work in weeks in which the individuals, without good cause, fail to accept job referrals or calls to work or fail to take positive steps to accept suitable work they should reasonably know is available with that employer. Good cause includes previously scheduled work with another employer or compelling personal circumstances which prevent acceptance of the work.

          Source: 21 SDR 188, effective May 7, 1995; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-6-1(3).

          Law Implemented: SDCL 61-6-1.

          47:06:04:21.03.  Jury duty. An individual serving on a jury is considered to be available for work.

          Source: 30 SDR 152, effective April 14, 2004; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-6-1(3).

          Law Implemented: SDCL 61-6-1(3).

          47:06:04:22.  Waiver of overpayment. A person who is overpaid an amount of benefits is liable for the amount overpaid unless the following conditions exist:

          (1)  A request is made that the department waive the right to recover the overpayment within 15 days after notice of overpayment;

          (2)  The overpayment was not due to fault, misrepresentation, or willful nondisclosure. In determining fault, the department shall consider the capacity of the particular claimant to recognize the error resulting in the overpayment. The claimant is not at fault if the benefits were retained because of the claimant's good faith reliance on the department. A claimant who negligently reports or fails to report information which results in an overpayment is at fault and is liable for repayment; and

          (3)  The person does not have the ability to repay. In determining the ability to repay, the department may consider family income and any liquid or readily convertible assets available to the claimant and the claimant's spouse in addition to the income. The department may waive liability for the overpayment if the claimant's average gross income for the preceding 12 months does not exceed the applicable level in the table in this section. If the family income exceeds the level in the table, the department may also waive the overpayment in circumstances such as unusually high medical expenses or other financial emergency that would cause repayment to impose an extraordinary hardship on the claimant.

          The average weekly wage rate in South Dakota is computed by dividing the sum of the total wages in covered employment, as reported by the department for the preceding calendar year, by the average number of workers in covered employment and dividing the result by 52.

          Source: 7 SDR 56, effective December 15, 1980; 9 SDR 81, 9 SDR 124, effective July 1, 1983; 19 SDR 182, effective June 23, 1993; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-6-42.

          Law Implemented: SDCL 61-6-42.

          47:06:04:27.  Effective dates of disqualifications. Disqualifications imposed as provided in SDCL 61-6-9 and 61-6-14 are effective on the date the initial or additional claim is effective.

          Disqualifications imposed, based on a disqualifying act that occurred during a week of unemployment for which benefits are claimed as provided in SDCL 61-6-9, 61-6-9.1, 61-6-14, 61-6-14.1, and 61-6-16 are effective on the Sunday preceding the day that the disqualifying act occurred.

          Source: 9 SDR 81, 9 SDR 124, effective July 1, 1983; 39 SDR 127, effective January 23, 2013; 41 SDR 58, effective October 14, 2014.

          General Authority: SDCL 61-7-1.

          Law Implemented: SDCL 61-6-9, 61-6-9.1, 61-6-14, 61-6-14.1, 61-6-16.

          47:06:04:28.  Weeks of administrative penalty. The department shall impose four weeks of administrative penalty for each week that an individual willfully or fraudulently misrepresents a fact to secure or increase benefits. An administrative penalty may not be imposed for more than 52 weeks.

          Source: 11 SDR 86, effective January 1, 1985; 39 SDR 127, effective January 23, 2013.

          General Authority: SDCL 61-7-1.

          Law Implemented: SDCL 61-6-39.