CHAPTER 60-11

WAGES, HOURS AND CONDITIONS OF EMPLOYMENT

60-11-1    Manufacturing or mechanical occupations--Hours of labor.

60-11-2    Requiring employee to pay cost of medical examination prohibited--Misdemeanor--Employer and employee defined.

60-11-3    Minimum wage--Misdemeanor--Certain employees excluded.

60-11-3.1    Minimum wage for tipped employees--Tips credited toward minimum wage--Certain persons excluded.

60-11-3.2    Annual minimum wage adjustment.

60-11-3.3    Rejected by referendum.

60-11-4    Minimum wage--Agreement to work for less ineffective.

60-11-4.1    Opportunity wage allowed.

60-11-5    Exemptions from minimum wage provisions.

60-11-6    Repealed by SL 1978, ch 359, § 3.

60-11-7    Liability of employer for double damages for breach of obligation to pay wages.

60-11-8    Employers subject to wage payment requirements.

60-11-9    Monthly wage payments required--Agreed pay day--Form of payment.

60-11-10    Prompt payment of wages due on separation by employer--Withholding for return of employer's property.

60-11-11    Payment on regular pay day after resignation by employee--Withholding for return of employer's property.

60-11-12    Payment on regular pay day during labor dispute--Return of deposit for faithful performance.

60-11-13    Payment of conceded wages when amount in dispute--Acceptance not a release of balance.

60-11-14    Provisions applicable to cash wages only.

60-11-15    Employer's intentional refusal to pay wages--Misdemeanor.

60-11-16    Fraudulent claim by employee--Misdemeanor.

60-11-17    Department to investigate and prosecute violations--Hearings--Access to employer's records.

60-11-17.1    Reprisals because of wage complaints or proceedings prohibited.

60-11-18    Department may take assignment of employees' claims-- Prosecution--Joinder of actions.

60-11-19    Assignment of employees' claims in trust to department--Prosecution--Settlement and adjustment.

60-11-20    Promulgation of rules.

60-11-21    Reciprocal agreements with other states for enforcement of wage claims.

60-11-22    Maintenance of actions outside state by department--Assignment to other state for collection.

60-11-23    Actions in South Dakota on claims arising in other states--Reciprocation required.

60-11-24    Action removed by defendant--Plaintiff's costs and attorney fees.

60-11-1. Manufacturing or mechanical occupations--Hours of labor.

A day's labor in any manufacturing or mechanical occupation shall consist of eight hours unless there is an express agreement to the contrary. This does not apply if the agreement is for employment by the week, month, or year.

Source: SL 1933 (SS), ch 10, § 1; SDC 1939, § 17.0102; SL 2008, ch 276, § 77.

60-11-2. Requiring employee to pay cost of medical examination prohibited--Misdemeanor--Employer and employee defined.

It is a Class 2 misdemeanor for any employer to require any employee to pay the cost of a medical examination or the cost of furnishing any records required by the employer as a condition of continued employment.

The term, employer, as used in this section means an individual, a partnership, an association, a corporation, a legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air or express company doing business in or operating within the state.

The term, employee, means any person who may be permitted, required, or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment.

Source: SL 1949, ch 78, §§ 1 to 4; SDC Supp 1960, §§ 17.0108, 17.9913; SL 1978, ch 359, § 2; SL 2008, ch 276, § 78.

60-11-3. Minimum wage--Misdemeanor--Certain employees excluded.

Every employer shall pay to each employee wages at a rate of not less than eight dollars and fifty cents an hour. Violation of this section is a Class 2 misdemeanor. The provisions of this section do not apply to certain employees being paid an opportunity wage pursuant to § 60-11-4.1, babysitters, or outside salespersons. The provisions of this section also do not apply to employees employed by an amusement or recreational establishment, an organized camp, or a religious or nonprofit educational conference center if one of the following apply:

(1)    The establishment, camp, or center does not operate for more than seven months in any calendar year; or

(2)    During the preceding calendar year, the average receipts of the establishment, camp, or center for any six months of the calendar year were not more than thirty-three and one-third percent of its average receipts for the other six months of the year.

Source: SDC 1939, §§ 17.0607, 17.9901; SL 1943, ch 76; SL 1945, ch 77; SL 1964, ch 67; SL 1966, ch 64, § 5; SDCL § 60-11-6; SL 1969, ch 85; SL 1973, ch 302; SL 1975, ch 316; SL 1978, ch 359, § 2; SL 1978, ch 367, § 1; SL 1982, ch 368, § 1; SL 1988, ch 411; SL 1990, ch 413, §§ 1, 3; SL 1997, ch 298, §§ 1, 2; SL 1999, ch 260, § 1; SL 2007, ch 297, § 1, eff. July 24, 2007; SL 2007, ch 297, § 2, eff. July 24, 2008; SL 2007, ch 297, § 3, eff. July 24, 2009; SL 2011, ch 224, § 1, eff. Mar. 17, 2011; SL 2015, ch 279 (Initiated Measure 18), § 1, eff. Jan. 1, 2015; SL 2015, ch 261, § 1, rejected Nov. 8, 2016.

60-11-3.1. Minimum wage for tipped employees--Tips credited toward minimum wage--Certain persons excluded.

Any employer of a tipped employee shall pay a cash wage of not less than fifty percent of the minimum wage provided by § 60-11-3 if the employer claims a tip credit against the employer's minimum wage obligation. If an employee's tips combined with the employer's cash wage of not less than fifty percent of the minimum wage provided by § 60-11-3 do not equal the minimum wage, the employer shall make up the difference as additional wages for each regular pay period of the employer. A tipped employee is one engaged in an occupation in which the employee customarily and regularly receives more than thirty-five dollars a month in tips or other considerations. This section does not apply to babysitters or outside salespersons. This section also does not apply to employees employed by an amusement or recreational establishment, an organized camp, or a religious or nonprofit educational conference center if one of the following apply:

(1)    The establishment, camp, or center does not operate for more than seven months in any calendar year; or

(2)    During the preceding calendar year, the average receipts of the establishment, camp, or center for any six months of the calendar year were not more than thirty-three and one-third percent of its average receipts for the other six months of the year.

Source: SDCL § 60-11-3 as added by SL 1973, ch 302; SL 1975, ch 316; SL 1978, ch 367, § 2; SL 1982, ch 368, § 2; SL 1990, ch 413, §§ 2, 4; SL 1997, ch 298, § 3; SL 2011, ch 224, § 2, eff. Mar. 17, 2011; SL 2015, ch 279 (Initiated Measure 18), § 2, eff. Jan. 1, 2015.

60-11-3.2. Annual minimum wage adjustment.

Beginning January 1, 2016, and again on January 1 of each year thereafter, the minimum wage provided by § 60-11-3 shall be adjusted by the increase, if any, in the cost of living. The increase in the cost of living shall be measured by the percentage increase as of August of the immediately preceding year over the level as measured as of August of the previous year of the Consumer Price Index (all urban consumers, U.S. city average for all items) or its successor index as published by the U.S. Department of Labor or its successor agency, with the amount of the minimum wage increase, if any, rounded up to the nearest five cents. In no case shall the minimum wage be decreased. The Secretary of the South Dakota Department of Labor and Regulation or its designee shall publish the adjusted minimum wage rate for the forthcoming year on its internet home page by October 15 of each year, and it shall become effective on January 1 of the forthcoming year.

Source: SL 2015, ch 279 (Initiated Measure 18), § 3, eff. Nov. 13, 2014.

60-11-3.3. Rejected by referendum.

60-11-4. Minimum wage--Agreement to work for less ineffective.

A person so employed at less than the minimum wage provided by § 60-11-3 shall be entitled to recover the full amount measured by said minimum wage and costs, notwithstanding any agreement to work for less.

Source: SL 1923, ch 309, § 2; SDC 1939, § 17.0607; SL 1943, ch 76; SL 1945, ch 77; SL 1964, ch 67; SL 1966, ch 64, § 5.

60-11-4.1. Opportunity wage allowed.

Any employee who is under twenty years of age may be paid an opportunity wage as defined in section 6 of the Fair Labor Standards Amendments of 1996 as of October 1, 1996.

Source: SL 1990, ch 413, § 5; SL 1997, ch 298, § 5; SL 1999, ch 260, § 2.

60-11-5. Exemptions from minimum wage provisions.

The provisions of §§ 60-11-3 and 60-11-4 do not apply to any apprentice, nor to any person learning the business or work in which employed, nor to any person with a developmental disability, if the Department of Labor and Regulation issues a permit for the person's employment fixing the wage or compensation of such person.

Source: SL 1923, ch 309, §§ 3, 4; SDC 1939, § 17.0607; SL 1943, ch 76; SL 1945, ch 77; SL 1964, ch 67; SL 1966, ch 64, § 5; SL 2008, ch 276, § 79; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

60-11-6. Repealed by SL 1978, ch 359, § 3.

60-11-7. Liability of employer for double damages for breach of obligation to pay wages.

In any action for the breach of an obligation to pay wages, if a private employer has been oppressive, fraudulent, or malicious, in the employer's refusal to pay wages due to the employee, the measure of damages is double the amount of wages for which the employer is liable.

Source: SDC Supp 1960, ch 37.19 as added by SL 1968, ch 153; SL 2008, ch 276, § 80.

60-11-8. Employers subject to wage payment requirements.

In §§ 60-11-9 to 60-11-23, inclusive, the term, employer, includes any person, firm, partnership, limited liability company, association, corporation, receiver, or other officer of a court of the state, and any agent or officer of any kind of the above mentioned classes and subject to the provisions of these sections, employing any person of this state.

Source: SL 1971, ch 274, § 1; SL 1994, ch 351, § 165; SL 2008, ch 276, § 81.

60-11-9. Monthly wage payments required--Agreed pay day--Form of payment.

Every employer shall pay all wages due to employees at least once each calendar month unless otherwise provided by law, or on regular agreed pay days designated in advance by the employer, in lawful money of the United States. An employer may pay wages by check, cash, or direct deposit to the employee's bank account, unless an employer and employee agree to another form of payment.

Source: SL 1971, ch 274, § 2; SL 2001, ch 291, § 1.

60-11-10. Prompt payment of wages due on separation by employer--Withholding for return of employer's property.

Whenever an employer separates an employee from the payroll, the unpaid wages or compensation of such employee are due and payable not later than the next regular stated pay day for which those hours would have normally been paid or as soon thereafter as the employee returns to the employer all property of the employer in the employee's possession.

Source: SL 1971, ch 274, § 3; SL 1996, ch 302; SL 1997, ch 299, § 1.

60-11-11. Payment on regular pay day after resignation by employee--Withholding for return of employer's property.

Whenever an employee not having a written contract for a definite period quits or resigns that employment, the wages or compensation earned are due and payable not later than the next regular stated pay day for which those hours would have normally been paid or as soon thereafter as the employee returns to the employer all property of the employer in the employee's possession.

Source: SL 1971, ch 274, § 4; SL 1997, ch 299, § 2.

60-11-12. Payment on regular pay day during labor dispute--Return of deposit for faithful performance.

In the event of the suspension of work as the result of a strike, lockout, or other labor dispute, the wages and compensation earned and unpaid at the time of said suspension shall become due and payable at the next regular pay day, as provided in § 60-11-9, including, without abatement or reduction, all amounts due all persons whose work has been suspended as a result of such industrial dispute, together with any deposit or other guaranty held by the employer for the faithful performance of the duties of the employment.

Source: SL 1971, ch 274, § 5.

60-11-13. Payment of conceded wages when amount in dispute--Acceptance not a release of balance.

In case of a dispute over wages, the employer shall give written notice to the employee of the amount of wages less whatever the employee owes the employer which the employee concedes to be due. The employer shall pay such amount without condition within the time set by §§ 60-11-9 to 60-11-12, inclusive. Acceptance by the employee of any payment made pursuant to this section does not constitute a release as to the balance of the claim.

Source: SL 1971, ch 274, § 6; SL 2008, ch 276, § 82.

60-11-14. Provisions applicable to cash wages only.

Sections 60-11-8 to 60-11-23, inclusive, do not apply to any form of compensation other than cash wages owing to any employee by or on behalf of any employer.

Source: SL 1971, ch 274, § 15; SL 2008, ch 276, § 83.

60-11-15. Employer's intentional refusal to pay wages--Misdemeanor.

Any employer who intentionally refuses to pay the wages due and payable when demanded as in §§ 60-11-9 to 60-11-13, inclusive, or who falsely denies the amount thereof, or that the same is due with the intent to secure for the employer or any other person any discount upon such indebtedness, or with any intent to annoy, harass, oppress, hinder, delay, or defraud the person to whom such indebtedness is due, commits a Class 2 misdemeanor.

Source: SL 1971, ch 274, § 8; revised pursuant to SL 1976, ch 158, § 43-6; SL 1978, ch 359, § 2; SL 2008, ch 276, § 84.

60-11-16. Fraudulent claim by employee--Misdemeanor.

Any employee who falsifies the amount due to the employee or who intentionally attempts to defraud the employer commits a Class 2 misdemeanor.

Source: SL 1971, ch 274, § 8; revised pursuant to SL 1976, ch 158, § 43-6; SL 1978, ch 359, § 2; SL 2008, ch 276, § 85.

60-11-17. Department to investigate and prosecute violations--Hearings--Access to employer's records.

The Department of Labor and Regulation shall ensure compliance with the provisions of this chapter, investigate any violations of §§ 60-11-8 to 60-11-23, inclusive, and institute or cause to be instituted actions for penalties and forfeitures provided thereunder. The department may hold hearings to satisfy itself as to the justice of any claim, and the department shall cooperate with any employee in the enforcement of a claim against the employer in any case whenever, in its opinion, the claim is valid. The department may enter places of employment for the purpose of inspecting records and seeing that all provisions of §§ 60-11-8 to 60-11-23, inclusive, are complied with.

Source: SL 1971, ch 274, § 7; SL 2008, ch 276, § 86; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

60-11-17.1. Reprisals because of wage complaints or proceedings prohibited.

No employer may discharge, discriminate, or engage in or threaten to engage in any reprisal, economic or otherwise, against any employee because the employee has made any complaint to the employer, or to the Department of Labor and Regulation, that the employee has not been paid wages in accordance with this chapter or because the employee has made any complaint or is about to institute any proceedings, or because the employee has testified or is about to testify in any such proceedings.

Source: SL 1976, ch 319; SL 2008, ch 276, § 87; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

60-11-18. Department may take assignment of employees' claims-- Prosecution--Joinder of actions.

The Department of Labor and Regulation may take assignments of wage claims, rights of action for penalties, provided by §§ 60-11-8 to 60-11-23, inclusive, not to exceed five hundred dollars in any case of any one claim without being bound by any of the technical rules with reference to the validity of such assignments. The department may prosecute actions for the collection of such claims of persons who, in the judgment of the department are entitled to the services of the department and who, in its judgment, have claims that are valid and enforceable in the courts. The department may join various claimants in one preferred claim or lien, and in case of suit to join them in one cause of action.

Source: SL 1971, ch 274, § 9; SL 2008, ch 276, § 88; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

60-11-19. Assignment of employees' claims in trust to department--Prosecution--Settlement and adjustment.

If the Department of Labor and Regulation determines that wages have not been paid, and that the unpaid wages constitute an enforceable claim, the department shall upon the request of the employee take an assignment in trust for the wages or any claim for liquidated damages, without being bound by any of the technical rules respecting the validity of any such assignments and may bring any legal action necessary to collect the claim. With the consent of the assigning employee at the time of the assignment, the department may settle and adjust any such claim to the same extent as might the assigning employee.

Source: SL 1971, ch 274, § 10; SL 2008, ch 276, § 89; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

60-11-20. Promulgation of rules.

The Department of Labor and Regulation shall promulgate rules pursuant to chapter 1-26 to carry out the provisions of §§ 60-11-8 to 60-11-23, inclusive.

Source: SL 1971, ch 274, § 11; SL 1993, ch 375, § 13; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

60-11-21. Reciprocal agreements with other states for enforcement of wage claims.

The Department of Labor and Regulation may enter into reciprocal agreements with the labor department or corresponding agency of any other state or with the person, board, officer, or commission authorized to act for and on behalf of such department or agency, for the collection in such other state of claims or judgments for wages or other demands based upon claims previously assigned to the department.

Source: SL 1971, ch 274, § 12; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

60-11-22. Maintenance of actions outside state by department--Assignment to other state for collection.

The Department of Labor and Regulation may, to the extent provided for by any reciprocal agreement entered into pursuant to the provisions of § 60-11-21, or by the laws of any other state, maintain actions in the courts of such state for the collection of such claims for wages, judgments, and other demands and may assign such claims, judgments, and demands to the labor department or agency of such other state for collection to the extent that the same may be permitted or provided for by the laws of such state or reciprocal agreement.

Source: SL 1971, ch 274, § 13; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

60-11-23. Actions in South Dakota on claims arising in other states--Reciprocation required.

The Department of Labor and Regulation may, upon the written request of the labor department or other corresponding agency of any other state or any other person, board, officer, or commission of such state authorized to act for and on behalf of such labor department or corresponding agency, maintain actions in the courts of this state upon assigned claims for wages, judgments, and demands arising in such other state in the same manner and to the same extent that such actions by the Department of Labor and Regulation are authorized when arising in this state; provided, however, that such actions may be commenced and maintained only in those cases where such other state by appropriate legislation or by a reciprocal agreement extends a like comity to cases arising in this state.

Source: SL 1971, ch 274, § 14; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

60-11-24. Action removed by defendant--Plaintiff's costs and attorney fees.

In any action for wages brought in small claims court which is removed to magistrate court or circuit court under § 15-39-57, the court may, in addition to awarding judgment to the plaintiff, allow costs of the action, including reasonable attorney fees, to be paid by the defendant.

Source: SL 1983, ch 158, § 1; SL 2021, ch 86, § 5.