Chapter
01. Definitions And General Provisions
02. Employment Security Divisions
03. Administration And Enforcement
04. The Unemployment Compensation Fund
05. Employers' Contributions And Accounts
05A. Reimbursement Of Benefits In Lieu Of Contributions
06. Reemployment Assistance Benefits
06A. Tribal Unemployment Insurance
07. Claims Administration
CHAPTER 61-1
DEFINITIONS AND GENERAL PROVISIONS
61-1-1 Definition of terms.
61-1-2 Department to administer title.
61-1-3 Employing unit defined.
61-1-4 Employer defined.
61-1-5 Successor employers subject to coverage.
61-1-5.1 Combined payrolls of predecessor and successor qualifying for coverage.
61-1-6 Employer subject to coverage by addition of another employing unit.
61-1-7 Extension of coverage to employment taxed under federal law.
61-1-8 Required coverage continues until terminated by law.
61-1-9 Elective coverage continues for period of election.
61-1-10 Employment defined.
61-1-10.1 Transferred to §§ 61-1-12, 61-1-13 by SL 2012, ch 252, § 59.
61-1-10.3 Transferred to § 61-1-15 by SL 2012, ch 252, § 59.
61-1-10.4 Transferred to § 61-1-36 by SL 2012, ch 252, § 59.
61-1-10.5 Transferred to § 61-1-20 by SL 2012, ch 252, § 59.
61-1-10.6 Transferred to §§ 61-1-22 to 61-1-25 by SL 2012, ch 252, § 59. =
61-1-10.10 Repealed by SL 1990, ch 415, § 3.
61-1-10.11 Repealed by SL 1991, ch 414, § 1.
61-1-11 Employee and independent contractor distinguished.
61-1-12 Agent-drivers, commission-drivers, and salesmen included.
61-1-13 Employment by state or instrumentalities included.
61-1-14 Unemployment compensation funds for political subdivisions permitted--Expenditures from fund.
61-1-15 Employment by religious, charitable, educational, or other organization included.
61-1-16 Repealed by SL 1977, ch 420, § 38.
61-1-16.1 Transferred to § 61-1-14 by SL 2012, ch 252, § 59.
61-1-17 Agricultural labor included--Criteria.
61-1-18 Services included within agricultural labor.
61-1-18.1 Transferred to § 61-1-33 by SL 2012, ch 252, § 59.
61-1-19 Certain domestic service included.
61-1-20 Foreign service for employer with principal place of business in state included.
61-1-21 Repealed by SL 1989, ch 446.
61-1-22 Foreign service for employer resident in state included.
61-1-23 Elective coverage of foreign service.
61-1-24 American employer defined.
61-1-25 Crew members of American vessels included.
61-1-26 Service within and without state included--Base of operations or residence as basis for coverage.
61-1-27 Service considered within state--Services in more than one state.
61-1-28 Services within state not covered by any other compensation law.
61-1-29 Repealed by SL 1971, ch 276, § 93.
61-1-30 Service outside state controlled from within state.
61-1-31 Federal employment exempt--Payments permitted by Congress--Refund when state not certified.
61-1-31.1 Transferred to § 61-1-47 by SL 2012, ch 252, § 59.
61-1-32 Employment exempt when covered by federal compensation law--Agreements for reciprocal treatment.
61-1-33 Employment exempt under Federal Unemployment Tax Act.
61-1-34 Foreign government service exempt.
61-1-35 Instrumentalities of foreign governments exempt.
61-1-36 Exempt employment by churches, institutions and state.
61-1-37 Incidental and student employment by educational institutions and nonprofit organizations exempt.
61-1-38 Student nurses, interns, and hospital patients exempt.
61-1-39 Newspaper delivery by minors exempt.
61-1-40 61-1-40. Repealed by SL 2008, ch 277, § 37.
61-1-41 Insurance agents and solicitors exempt.
61-1-42 61-1-42, 61-1-43. Repealed by SL 2008, ch 277, §§ 39, 40.
61-1-44 Employment by close relative exempt.
61-1-45 Coverage determined by nature of employment for major part of pay period.
61-1-46 Wages defined--Maximum annual wages subject to coverage.
61-1-47 National Guard weekend training payments not deemed wages.
61-1-48 Employer's contributions to certain plans not deemed wages.
61-1-49 Social security tax payments not deemed wages.
61-1-50 Dismissal payments not deemed wages.
61-1-51 Week of unemployment defined.
61-1-52 Registration at employment office required to commence week of unemployment.
61-1-53 Rules covering temporary or partial employment.
61-1-54 Rules covering seasonal employment.
61-1-55 Title inoperative if federal tax inoperative--Disposition of unobligated funds.
61-1-1. Definition of terms.
Terms used in this title mean:
(1) "Annual payroll," the total amount of taxable wages paid by an employer during a calendar year for employment;
(2) "Base period," the first four out of the last five completed calendar quarters immediately preceding an individual's benefit year. For an individual who fails to meet the qualifications of § 61-6-4 due to the receipt of temporary total disability payments under worker's compensation, the base period is the first four of the last five completed quarters preceding the disability if a claim for reemployment assistance benefits is filed within twenty-four months of the date on which the individual's disability was incurred. For an individual who fails to meet the minimum requirements of § 61-6-4 due to insufficient wages, the base period is the four completed calendar quarters immediately preceding the individual's benefit year. However, no calendar quarter used in one base period of a valid claim may be used in a subsequent base period;
(3) "Benefit year," the one-year period beginning with the day on which a claimant files a valid new claim for benefits, or the one-year period beginning with the day on which a claimant files a valid new claim after the termination of his last preceding benefit year;
(4) "Benefits," the money payments payable to an unemployed individual, as provided in this title;
(5) "Calendar quarter," the period of three consecutive calendar months ending on March thirty-first, June thirtieth, September thirtieth, or December thirty-first;
(6) "Contributions," the money payments to the state unemployment compensation fund required by this title to finance reemployment assistance benefits;
(7) "Department," the Department of Labor and Regulation created by chapter 1-37;
(8) "Educational service agency," a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing services to one or more educational institutions;
(9) "Employment office," a free public employment office, or branch thereof, operated by this state or maintained as part of a state or federal controlled system of public employment offices;
(10) "Employment security administration fund," the employment security administration fund established by this title;
(11) "Extended benefits," the benefits that are provided in §§ 61-6-49 to 61-6-66, inclusive;
(12) "Fund," the unemployment compensation fund established by this title;
(13) "Hospital," an institution which has been licensed, certified or approved by the State Department of Health as a hospital;
(14) "Institution of higher education," an educational institution which:
(a) Admits as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate; and
(b) Is legally authorized in this state to provide a program of education beyond high school; and
(c) Provides an educational program for which it awards a bachelor's or higher degree, or provides a program which is acceptable for full credit toward such a degree, provides an educational program of postgraduate or postdoctoral studies, or provides an educational program of training to prepare students for gainful employment in a recognized occupation; and
(d) Is a public or other nonprofit institution.
Notwithstanding any of the foregoing provisions of this subdivision, all colleges and universities in this state are "institutions of higher education";
(15) "Insured work," employment for employers as defined in §§ 61-1-4 to 61-1-45, inclusive;
(16) "State," a state of the United States of America and the District of Columbia, the Commonwealth of Puerto Rico and the Virgin Islands;
(17) "Wages," all remuneration paid for services, including commissions and bonuses. The term does not include remuneration described by §§ 61-1-46 to 61-1-50, inclusive. The term includes tips and other remuneration upon which a tax is imposed by the Federal Unemployment Tax Act and the reasonable cash value of remuneration paid in any medium other than cash determined in accordance with rules promulgated pursuant to chapter 1-26 by the secretary of labor and regulation;
(18) "Week," the period or periods of seven consecutive calendar days ending at midnight. The secretary of labor and regulation may promulgate rules pursuant to chapter 1-26 to prescribe that a week is in, within or during that benefit year which includes the greater part. For the purpose of § 61-1-4, if a week includes both December thirty-first and January first, the days of that week up to January first shall be considered one calendar week and the days beginning January first another week;
(19) "Weekly benefit amount," the amount of benefits an individual is entitled to receive for one week of total unemployment. An individual's weekly benefit amount determined for the first week of his benefit year shall constitute his weekly benefit amount throughout the benefit year;
(20) "Reemployment assistance," the cash benefits payable to an individual with respect to the individual's unemployment pursuant to the provisions of this title. When applicable, the term also means cash benefits payable to an individual with respect to the individual's unemployment pursuant to 5 U.S.C. §§ 8501-8525, 26 U.S.C. §§ 3301-3311, 42 U.S.C. §§ 504-504, 1101-1110, and 1321-1324, or pursuant to state laws which have been certified pursuant to 26 U.S.C. § 3304 and 42 U.S.C. § 503. Any reference to reemployment assistance means compensation payable from an unemployment fund as defined in section 3306(f) of the Federal Internal Revenue Code as amended to January 1, 2019.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802; SL 1939, ch 86, § 1; SL 1941, ch 82, §§ 1, 4; SL 1941, ch 83, §§ 2 to 5; SL 1943, ch 77, § 1; SL 1943, ch 78, § 1; SL 1947, ch 88, §§ 2, 3, 5, 6; SL 1949, ch 76, § 1; SL 1961, ch 105, § 4; SL 1971, ch 276, §§ 1 to 4; SL 1977, ch 420, § 1; SL 1979, ch 348, § 1; SL 1981, ch 368, § 2; SL 1983, ch 22, § 6; SL 1984, ch 333, §§ 3, 4; SL 1985, ch 396, § 1; SL 1993, ch 375, § 14; SL 1993, ch 377, § 1; SL 2005, ch 279, § 1; SL 2009, ch 273, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2013, ch 258, § 4; SL 2019, ch 216, § 1.
61-1-2. Department to administer title.
The Department of Labor and Regulation shall administer this title.
Source: SDC 1939, § 17.0801 as added by SL 1947, ch 88, § 1; SL 2008, ch 277, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-1-3. Employing unit defined.
As used in this title, the term, employing unit, means an individual or type of organization, including any partnership, limited liability company, association, trust, estate, joint-stock company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has had in its employ one or more individuals performing services for it within this state. Each individual performing services within this state for any employing unit which maintains two or more separate establishments within this state is deemed to be employed by a single employing unit for all the purposes of this title. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit is deemed to be employed by the employing unit for all the purposes of this title, whether the individual was hired or paid directly by the employing unit or by the agent or employee, if the employing unit had actual or constructive knowledge of the work.
For purposes of this title, an employing unit includes a common paymaster. As used in this section, the term, common paymaster, means a business entity that disburses remuneration to employees of two or more business entities on behalf of the other business entities and is responsible for keeping books and records for the payroll with respect to the employees. The amount disbursed to an individual employed concurrently by two or more related business entities is determined by 26 U.S.C. § 3306(p) as of January 1, 2022. The department shall promulgate rules pursuant to chapter 1-26 to determine when a common paymaster relationship exists between business entities.
Source: SDC 1939, § 17.0802 (5); SL 1939, ch. 85; SL 1943, ch 77, § 1; SL 1994, ch 351, § 166; SL 2008, ch 277, § 2; SL 2022, ch 189, § 1.
61-1-4. Employer defined.
As used in this title, the term, employer, means:
(1) For each calendar year, any employing unit which:
(a) In any calendar quarter in either the current or preceding calendar year paid for service in employment wages of one thousand five hundred dollars or more; or
(b) For some portion of a day in each of twenty different calendar weeks, whether or not such weeks were consecutive, in either the current or the preceding calendar year, had in employment at least one individual (irrespective of whether the same individual was in employment in each such day);
(2) Any employing unit for which service in employment, as defined in § 61-1-13, is performed;
(3) Any employing unit for which service in employment, as defined in § 61-1-15, is performed;
(4) Any employing unit for which agricultural labor as defined in § 61-1-18 is performed, subject to subdivision 61-1-17(1);
(5) Any employing unit for which domestic service in employment as defined in § 61-1-19 is performed.
In determining whether or not an employing unit for which service other than domestic service is also performed is an employer under subdivision (1), (2), (3), or (4) of this section the wages earned on the employment of an employee performing domestic service, may not be taken into account.
In determining whether or not an employing unit for which service other than agricultural labor is also performed is an employer under subdivision (1), (2), (3), or (5) of this section, the wages earned or the employment of an employee performing service in agricultural labor, may not be taken into account. If an employing unit is determined to be an employer of agricultural labor, the employing unit shall be determined an employer for the purposes of subdivision (1) of this section.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (6) (a); SL 1939, ch 86, § 1; SL 1953, ch 76, § 1; SL 1955, ch 60; SL 1971, ch 276, §§ 5 to 7; SL 1973, ch 304, § 2; SL 1977, ch 420, §§ 2 to 7; SL 1982, ch 28, § 16; SL 1993, ch 377, § 2; SL 2008, ch 277, § 3; SL 2013, ch 258, § 5.
61-1-5. Successor employers subject to coverage.
As used in this title, the term, employer, includes any individual, group of individuals, or employing unit which acquired the organization, trade, or business, or substantially all the assets thereof, of another which at the time of the acquisition was an employer subject to this title.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (6) (b); SL 1939, ch 86, § 1; SL 2008, ch 277, § 4.
61-1-5.1. Combined payrolls of predecessor and successor qualifying for coverage.
Any employing unit which acquired the organization, trade, or business, or substantially all the assets of another employing unit if such employing unit subsequent to such acquisition, and such acquired unit prior to such acquisition, both within the same calendar quarter, together paid for service in employment wages totaling one thousand five hundred dollars or more shall be an employer under § 61-1-4.
Source: SL 1971, ch 276, § 8.
61-1-6. Employer subject to coverage by addition of another employing unit.
As used in this title, the term, employer, includes any individual, group of individuals or employing unit which acquired the organization, trade, or business, or substantially all of the assets thereof, of another employing unit and which, if treated as a single unit with such other employing unit would be an employer under § 61-1-4.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (6) (c); SL 1939, ch 86, § 1; SL 2008, ch 277, § 5.
61-1-7. Extension of coverage to employment taxed under federal law.
If a tax is imposed by the Federal Unemployment Tax Act, in either its present form or as hereafter amended, upon employing units, employment, services, or wages not otherwise covered by this title, then notwithstanding any other provision of this title, services with respect to which a tax is required to be paid under any federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund or which as a condition for full tax credit against the tax imposed by the Federal Unemployment Tax Act is required to be covered under this title.
Source: SDC 1939, § 17.0802 (6) (e) as added by SL 1939, ch 86, § 1; SL 1951, ch 94, § 1; SL 1971, ch 276, § 9.
61-1-8. Required coverage continues until terminated by law.
As used in this title, the term, employer, includes any employing unit which, having become an employer under subdivision 61-1-4(2), or under any of §§ 61-1-5 to 61-1-7, inclusive, has not, under §§ 61-5-11, 61-5-15, and 61-5-17, ceased to be an employer subject to this title.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (6) (e); SL 1939, ch 86, § 1; SDC Supp 1960, § 17.0802 (6) (f); SL 2008, ch 277, § 6; SL 2013, ch 258, § 6.
61-1-9. Elective coverage continues for period of election.
As used in this title, the term, employer, includes for the effective period of its election pursuant to §§ 61-5-3 to 61-5-5, inclusive, § 61-5-32 and § 61-5-33, any other employing unit which has elected to become fully subject to this title.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (6) (f); SL 1939, ch 86, § 1; SDC Supp 1960, § 17.0802 (6) (g); SL 2008, ch 277, § 7; SL 2013, ch 258, § 7.
61-1-10. Employment defined.
The term, employment, means any service performed, including service in interstate commerce, by:
(1) Any officer of a corporation; or
(2) Any individual who, under the usual common-law rules applicable in determining the employer-employee relationship has the status of an employee.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (a); SL 1939, ch 86, § 1; SL 1941, ch 82, § 2; SL 1968, ch 87; SL 1971, ch 276, § 10; SL 2008, ch 277, § 8.
61-1-10.10. Repealed by SL 1990, ch 415, § 3.
61-1-10.11. Repealed by SL 1991, ch 414, § 1.
61-1-11. Employee and independent contractor distinguished.
Service performed by an individual for wages is employment subject to this title unless and until it is shown to the satisfaction of the Department of Labor and Regulation that:
(1) The individual has been and will continue to be free from control or direction over the performance of the service, both under his contract of service and in fact; and
(2) The individual is customarily engaged in an independently established trade, occupation, profession, or business.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (f); SL 1939, ch 86, § 1; SL 1971, ch 276, § 11; SL 1985, ch 397; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-1-12. Agent-drivers, commission-drivers, and salesmen included.
The term, employment, includes, subject to the provisions of §§ 61-1-13, 61-1-15, 61-1-20, 61-1-22 to 61-1-25, and 61-1-36, service performed, including service in interstate commerce, by any individual other than an individual who is an employee under subdivision 61-1-10(1) or (2) who performs services for remuneration for any person:
(1) As an agent-driver or commission-driver engaged in distributing meat products, vegetable products, fruit products, bakery products, beverages, or laundry or dry-cleaning services, for the driver's principal;
(2) As a traveling or city salesman, other than as an agent-driver or commission-driver, engaged upon a full-time basis in the solicitation on behalf of, and the transmission to, the salesman's principal (except for sideline sales activities on behalf of some other person) of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in the business operations.
For the purposes of this section, the term, employment, includes services described in subdivisions (1) and (2) if: the contract of service contemplates that substantially all of the services are to be performed personally by such individual; the individual does not have a substantial investment in facilities used in connection with the performance of the services (other than in facilities for transportation); and the services are not in the nature of a single transaction that is not part of a continuing relationship with the person for whom the services are performed.
Source: SDCL § 61-1-10 (1) (c) as enacted by SL 1971, ch 276, § 10; SL 1992, ch 60, § 2; SL 2008, ch 277, § 9; SDCL § 61-1-10.1; SL 2012, ch 252, § 59.
61-1-13. Employment by state or instrumentalities included.
As used in this title, the term, employment, includes:
(1) Service performed by an individual in the employ of this state or any of its instrumentalities or in the employ of this state and one or more other states or their instrumentalities for a hospital or institution of higher education located in this state;
(2) Service performed by an individual in the employ of this state or of its instrumentalities or any instrumentality which is wholly owned by this state and one or more other states; and
(3) Service performed by an individual in the employ of any political subdivision of this state or any instrumentality of any one or more of the foregoing which is wholly owned by this state and one or more other states or political subdivisions, or any service performed in the employ of any instrumentality of this state or any political subdivision thereof, and one or more other states or political subdivisions.
However, such service is excluded from employment as defined in the Federal Unemployment Tax Act of 1939, as amended to January 1, 1977, solely by reason of section 3306(c)(7) of that act and is not excluded from employment under § 61-1-36.
Source: SDCL § 61-1-10 (2) as enacted by SL 1971, ch 276, § 10; SL 1973, ch 304, § 1; SL 1974, ch 325, § 1; SL 1977, ch 420, § 8; SL 2008, ch 277, § 10; SDCL § 61-1-10.2; SL 2012, ch 252, § 59.
61-1-14. Unemployment compensation funds for political subdivisions permitted--Expenditures from fund.
The governing body of any political subdivision may establish an unemployment insurance compensation fund. Expenditures from the fund shall be made only for payment of reemployment assistance or unemployment insurance claims pursuant to the Federal Unemployment Insurance Act of 1939 as amended on January 1, 2005, and state law. Notwithstanding the provisions of §§ 7-21-25 and 9-21-9, expenditures from the fund may be made without specific appropriations authority.
Source: SL 1977, ch 58; SL 2005, ch 282, § 1; SDCL § 61-1-16.1; SL 2012, ch 252, § 59; SL 2019, ch 216, § 2.
61-1-15. Employment by religious, charitable, educational, or other organization included.
The term, employment, includes services performed by an individual in the employ of a religious, charitable, educational, or other organization, but only if the following conditions are met and if such services are not excluded from employment under subdivision 61-1-36(1), (2), (3), (4), (5), or (6):
(1) The service is excluded from employment as defined in the Federal Unemployment Tax Act as amended, January 1, 1977, solely by reason of section 3306(c)(8) service performed in the employ of a religious, charitable, educational, or other organization described in section 501(c)(3) which is exempt from the income tax under 501(a) of the federal act; and
(2) The organization had four or more individuals in employment for some portion of a day in each of twenty different weeks, whether or not such weeks were consecutive, within either the current or preceding calendar year, regardless of whether they were employed at the same moment of time.
Source: SDCL § 61-1-10 (3) as enacted by SL 1971, ch 276, § 10; SL 1974, ch 325, § 2; SL 1977, ch 420, § 9; SL 2008, ch 277, § 11; SDCL § 61-1-10.3; SL 2012, ch 252, § 59.
61-1-16. Repealed by SL 1977, ch 420, § 38.
61-1-17. Agricultural labor included--Criteria.
As used in this title, the term, employment, includes service performed by an individual in agricultural labor as defined in § 61-1-18 when:
(1) The service is performed for a person who:
(a) During any calendar quarter in either the current or the preceding calendar year paid remuneration in cash of twenty thousand dollars or more to individuals employed in agricultural labor; or
(b) For some portion of a day in each of twenty different calendar weeks, whether or not the weeks were consecutive, in either the current or the preceding calendar year, employed in agricultural labor ten or more individuals, regardless of whether they were employed at the same moment of time; or
(2) For the purpose of this section any individual who is a member of a crew furnished by a crew leader to perform service in agricultural labor for any other person shall be treated as an employee of the crew leader:
(a) If the crew leader holds a valid certificate of registration under the Farm Labor Contractor Registration Act of 1963 as amended to January 1, 1977; or substantially all the members of the crew operate or maintain tractors, mechanized harvesting, or crop-dusting equipment, or any other mechanized equipment, which is provided by the crew leader; and
(b) If the individual is not an employee of the other person within the meaning of § 61-1-24; or
(3) For the purposes of this section, in the case of any individual who is furnished by a crew leader to perform service in agricultural labor for any other person and who is not treated as an employee of the crew leader under subdivision (2) of this section:
(a) Such other person and not the crew leader shall be treated as the employer of the individual; and
(b) Such other person shall be treated as having paid cash remuneration to the individual in an amount equal to the amount of cash remuneration paid to the individual by the crew leader either on the crew leader's own behalf or on behalf of such other person for the service in agricultural labor performed for such other person; or
(4) For the purposes of this section, the term, crew leader, means an individual who:
(a) Furnishes individuals to perform service in agricultural labor for any other person;
(b) Pays (either on the crew leader's own behalf or on behalf of such other person) the individuals so furnished by the crew leader for the service in agricultural labor performed by them; and
(c) Has not entered into a written agreement with such other person under which the individual is designated as an employee of such other person.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (g) (1); SL 1939, ch 86, § 1; SL 1941, ch 82, § 3; SL 1977, ch 420, § 15; SL 2008, ch 277, § 25; SDCL § 61-1-24; SL 2012, ch 252, § 59.
61-1-18. Services included within agricultural labor.
As used in this title, the term, agricultural labor, includes all services performed:
(1) On a farm, in the employ of any person, in connection with cultivating the soil or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, testing, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife;
(2) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of the farm and its tools and equipment, or in salvaging timber or clearing land of brush or other debris left by flood waters or windstorm, if the major part of the service is performed on a farm;
(3) In connection with the production or harvesting of maple sugar or maple syrup or any commodity defined as an agricultural commodity in section 15(g) of the Federal Agricultural Marketing Act, as amended, or in connection with the raising or harvesting of mushrooms, or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways used exclusively for supplying and storing water for farming purposes;
(4) In the employ of the operator of a farm in handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to market, in its unmanufactured state, any agricultural or horticultural commodities; but only if the operator produced more than one-half of the commodity with respect to which the service is performed, or in the employ of a group of operators of farms (or a cooperative organization of which the operators are members) in the performance of service described in this section, but only if the operators produced more than one-half of the commodity with respect to which such service is performed. The provisions of this subdivision (4) may not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption;
(5) On a farm operated for profit if the service is not in the course of the employer's trade or business or is domestic service in a private home of the employer.
As used in this section, the term, farm, includes stock, dairy, poultry, fruit, fur-bearing animals, and truck farms, plantations, ranches, nurseries, ranges, greenhouses, or other similar structures used primarily for the raising of agricultural or horticultural commodities and orchards.
Source: SDC 1939, § 17.0802 (7) (g) (21) as added by SL 1941, ch 82, § 3; SL 1971, ch 276, §§ 15 to 17; SL 1991, ch 415; SL 2008, ch 277, § 26; SDCL § 61-1-25; SL 2012, ch 252, § 59.
61-1-19. Certain domestic service included.
As used in this title, the term, employment, includes domestic service performed for a person who paid cash remuneration of one thousand dollars or more in the current calendar year or the preceding calendar year to individuals employed in such domestic service in any calendar quarter, in a private home, local college club, or local chapter of a college fraternity or sorority.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (g) (2); SL 1939, ch 86, § 1; SL 1941, ch 82, § 3; SL 1977, ch 420, § 17; SL 2008, ch 277, § 28; SDCL § 61-1-27; SL 2012, ch 252, § 59.
61-1-20. Foreign service for employer with principal place of business in state included.
The term, employment, includes the service of an individual who is a citizen of the United States, performed outside the United States except in Canada, in the employ of an American employer (other than service which is deemed employment under § 61-1-26 or 61-1-27 or the parallel provisions of another state's law), if the employer's principal place of business in the United States is located in this state.
Source: SDCL § 61-1-10 (5) as enacted by SL 1971, ch 276, § 10; SL 1977, ch 420, § 12; SL 2008, ch 277, § 12; SDCL § 61-1-10.5; SL 2012, ch 252, § 59.
61-1-21. Repealed by SL 1989, ch 446.
61-1-22. Foreign service for employer resident in state included.
The term, employment, includes the service of an individual who is a citizen of the United States, performed outside the United States except in Canada, in the employ of an American employer other than service which is deemed employment under § 61-1-26 or 61-1-27 or the parallel provisions of another state's law, if the employer has no place of business in the United States, but:
(1) The employer is an individual who is a resident of this state; or
(2) The employer is a corporation which is organized under the laws of this state; or
(3) The employer is a partnership or a trust and the number of the partners or trustees who are residents of this state is greater than the number who are residents of any one other state.
Source: SDCL § 61-1-10 (5) (b) as enacted by SL 1971, ch 276, § 10; SL 1977, ch 420, § 13; SL 2008, ch 277, § 13; SDCL § 61-1-10.6; SL 2012, ch 252, § 59.
61-1-23. Elective coverage of foreign service.
The term, employment, includes the service of an individual who is a citizen of the United States, performed outside the United States except in Canada, or in the case of the Virgin Islands, after December thirty-first in the year the United States secretary of labor approves the Virgin Islands' unemployment compensation law, in the employ of an American employer other than service which is deemed employment under § 61-1-26 or 61-1-27 or the parallel provisions of another state's law, if none of the criteria of §§ 61-1-20 and 61-1-22 is met but the employer has elected coverage in this state or, the employer having failed to elect coverage in any state, the individual has filed a claim for benefits, based on such service, under the law of this state.
Source: SDCL § 61-1-10 (5) (c) as enacted by SL 1971, ch 276, § 10; SL 1977, ch 420, § 14; SL 2008, ch 277, § 14; SDCL § 61-1-10.7; SL 2012, ch 252, § 59.
61-1-24. American employer defined.
The term, American employer, for the purposes of §§ 61-1-20, 61-1-22, and 61-1-23 means a person who is:
(1) An individual who is a resident of the United States; or
(2) A partnership if two-thirds or more of the partners are residents of the United States; or
(3) A trust, if all of the trustees are residents of the United States; or
(4) A corporation organized under the laws of the United States or of any state.
Source: SDCL § 61-1-10 (5) (d) as enacted by SL 1971, ch 276, § 10; SL 2008, ch 277, § 15; SDCL § 61-1-10.8; SL 2012, ch 252, § 59.
61-1-25. Crew members of American vessels included.
Notwithstanding § 61-1-26, the term, employment, includes all service performed by an officer or member of the crew of an American vessel on or in the connection with such vessel, if the operating office, from which the operations of such vessel operating on navigable waters within, or within and without, the United States are ordinarily and regularly supervised, managed, directed, and controlled is within the state.
Source: SDCL § 61-1-10 (6) as enacted by SL 1971, ch 276, § 10; SL 2008, ch 277, § 16; SDCL § 61-1-10.9; SL 2012, ch 252, § 59.
61-1-26. Service within and without state included--Base of operations or residence as basis for coverage.
As used in this chapter, the term, employment, includes an individual's entire service, performed within or both within and without this state if:
(1) The service is localized in this state; or
(2) The service is not localized in any state but some of the service is performed in this state and first, the base of operations, or, if there is no base of operations, then the place from which the service is directed or controlled, is in this state; or second, the base of operations or place from which the service is directed or controlled is not in any state in which some part of the service is performed, but the individual's residence is in this state.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (b); SL 1939, ch 86, § 1; SL 2008, ch 277, § 17; SDCL § 61-1-12; SL 2012, ch 252, § 59.
61-1-27. Service considered within state--Services in more than one state.
Service is considered to be within a state if:
(1) The service is performed entirely within the state; or
(2) The service is performed both within and without the state, but the service performed without the state is incidental to the individual's service within the state, such as service that is temporary or transitory in nature or consists of isolated transactions.
The department shall promulgate rules pursuant to chapter 1-26 providing for coverage of workers performing services in more than one state.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (e); SL 1939, ch 86, § 1; SL 1983, ch 22, § 7; SL 1993, ch 375, § 15; SDCL § 61-1-13; SL 2012, ch 252, § 59.
61-1-28. Services within state not covered by any other compensation law.
Services performed within this state but not covered under § 61-1-26 shall be deemed to be employment subject to this title if contributions are not required and paid with respect to such services under an unemployment compensation law of any other state or of the federal government.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (c); SL 1939, ch 86, § 1; SDCL § 61-1-14; SL 2012, ch 252, § 59.
61-1-29. Repealed by SL 1971, ch 276, § 93.
61-1-30. Service outside state controlled from within state.
The term, employment, includes an individual's service, wherever performed within the United States, the Virgin Islands, or Canada, if:
(1) The service is not covered under the reemployment assistance or unemployment compensation law of any other state, the Virgin Islands, or Canada; and
(2) The place from which the service is directed or controlled is in this state.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (d); SL 1939, ch 86, § 1; SL 1971, ch 276, § 12; SL 2008, ch 277, § 18; SDCL § 61-1-15; SL 2012, ch 252, § 59; SL 2019, ch 216, § 3.
61-1-31. Federal employment exempt--Payments permitted by Congress--Refund when state not certified.
As used in this title, the term, employment, does not include service performed in the employ of the United States government or an instrumentality of the United States immune under the Constitution of the United States from the contributions imposed by this title. However, to the extent that the Congress of the United States permits states to require any instrumentality of the United States to make payments into an unemployment fund under a state unemployment compensation act, the provisions of this title are applicable to such instrumentality and to services performed for such instrumentality in the same manner, to the same extent and on the same terms as to all other employers, employing units, individuals and services. If this state is not certified for any year by the United States secretary of labor under section 3304 of the Federal Internal Revenue Code, the payments required of such instrumentality, with respect to such years, shall be refunded by the South Dakota Department of Labor and Regulation from the fund in the same manner and within the same period as is provided in § 61-5-56 with respect to contributions erroneously collected.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (g) (7); SL 1939, ch 86, § 1; SL 1941, ch 82, § 3; SL 2008, ch 277, § 19; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-1-17; SL 2012, ch 252, § 59.
61-1-32. Employment exempt when covered by federal compensation law--Agreements for reciprocal treatment.
As used in this title, the term, employment, does not include service with respect to which reemployment assistance or unemployment compensation is payable under an unemployment compensation system established by an act of Congress. However, the Department of Labor and Regulation shall enter into agreements with the proper agencies under any such act of Congress, to provide reciprocal treatment to individuals who have, after acquiring potential rights to benefits under this title, acquired rights to reemployment assistance or unemployment compensation under an act of Congress, or who have, after acquiring potential rights to unemployment compensation under an act of Congress, acquired rights to benefits under this title.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (g) (8); SL 1939, ch 86, § 1; SL 1941, ch 82, § 3; SL 1993, ch 375, § 16; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-1-18; SL 2012, ch 252, § 59; SL 2019, ch 216, § 4.
61-1-33. Employment exempt under Federal Unemployment Tax Act.
As used in this title, the term, employment, does not include employment specifically exempted from coverage under the Federal Unemployment Tax Act.
Source: SDC 1939, § 17.0802 (7) (g) as added by SL 1968, ch 88; SL 2008, ch 277, § 20; SDCL § 61-1-18.1; SL 2012, ch 252, § 59.
61-1-34. Foreign government service exempt.
As used in this title, the term, employment, does not include service performed in the employ of a foreign government, including service as a consular or other officer or employee or nondiplomatic representative.
Source: SDC 1939, § 17.0802 (7) (g) (14) as added by SL 1941, ch 82, § 3; SL 2008, ch 277, § 21; SDCL § 61-1-19; SL 2012, ch 252, § 59.
61-1-35. Instrumentalities of foreign governments exempt.
As used in this title, the term, employment, does not include service performed in the employ of an instrumentality wholly owned by a foreign government:
(1) If the service is of a character similar to that performed in foreign countries by employees of the United States government or of an instrumentality thereof; and
(2) If the South Dakota Department of Labor and Regulation finds that the United States Secretary of State has certified to the United States Secretary of the Treasury that the foreign government, with respect to whose instrumentality exemption is claimed, grants an equivalent exemption with respect to similar service performed in foreign countries by employees of the United States government and of instrumentalities thereof.
Source: SDC 1939, § 17.0802 (7) (g) (15) as added by SL 1941, ch 82, § 3; SL 2008, ch 277, § 22; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-1-20; SL 2012, ch 252, § 59.
61-1-36. Exempt employment by churches, institutions and state.
For the purposes of §§ 61-1-13 and 61-1-15 the term, employment, does not apply to service performed:
(1) In the employ of:
(a) A church or convention or association of churches, or
(b) An organization which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches; or
(2) By a duly ordained, commissioned, or licensed minister of a church in the exercise of duties required by the church or by a member of a religious order in the exercise of duties required by the order; or
(3) In the employ of a school which is not an institution of higher education prior to January 1, 1978; or in the employ of a governmental entity referred to in § 61-1-13 after December 31, 1977, if the service is performed by an individual in the exercise of duties:
(a) As an elected official;
(b) As a member of a legislative body, or a member of the judiciary, of a state or political subdivision;
(c) As a member of the state national guard or air national guard;
(d) As an employee serving on a temporary basis in case of fire, storm, snow, earthquake, flood, or similar emergency;
(e) In a position which, under or pursuant to the laws of this state, is designated as a major nontenured policymaking or advisory position, or a policymaking position the performance of the duties of which ordinarily does not require more than eight hours per week;
(f) As a precinct election official or automatic tabulating system worker if the amount of remuneration received by the individual during the calendar year for services as a precinct election official or automatic tabulating system worker is less than one thousand dollars; or
(4) In a facility conducted for the purpose of carrying out a program of rehabilitation for any individual whose earning capacity is impaired by age or physical or mental deficiency or injury or providing remunerative work for any individual who because of impaired physical or mental capacity cannot be readily absorbed in the competitive labor market by an individual receiving such rehabilitation or remunerative work; or
(5) As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision, by an individual receiving such work relief or work training; or
(6) By an inmate of a custodial or penal institution.
Source: SDCL § 61-1-10 (4) as enacted by SL 1971, ch 276, § 10; SL 1973, ch 304, §§ 3, 4; SL 1974, ch 325, § 3; SL 1977, ch 420, §§ 10, 11; SL 1991, ch 413, § 1; SL 1998, ch 298, § 1; SDCL § 61-1-10.4; SL 2012, ch 252, § 59.
61-1-37. Incidental and student employment by educational institutions and nonprofit organizations exempt.
As used in this title, the term, employment, does not include:
(1) Service performed during a calendar quarter in the employ of an organization exempt from income tax under section 501(a)(other than an organization described in 401(a)) or under section 521 of the Federal Internal Revenue Code, if the remuneration for such services does not exceed fifty dollars; or
(2) Service performed in the employ of a school, college or university:
(a) By a student who is enrolled and is regularly attending classes at the school, college, or university, or
(b) By the spouse of a student, if the spouse is advised, at the time the spouse commences to perform the service, that this employment is included under a program to provide financial assistance to the student by the school, college or university, and that employment is not covered by any program of reemployment assistance or unemployment insurance, or
(3) Service performed by an individual who is enrolled for credit at a nonprofit or public educational institution, which maintains a regular faculty and curriculum and has a regularly organized body of students in attendance at the place where its educational activities are carried on, as a student in a full-time program, which combines academic instruction with work experience, if the service is an integral part of that program and if the institution has so certified to the employer. This subdivision does not apply to service performed in a program established for or on behalf of an employer or group of employers.
Source: SDC 1939, § 17.0802 (7) (g) (9) as added by SL 1941, ch 82, § 3; SL 1951, ch 94, § 2; SL 1961, ch 105, § 2; SL 1964, ch 68; SL 1971, ch 276, § 13; SL 1983, ch 379, § 1; SL 1986, ch 424, § 2; SL 2008, ch 277, § 23; SDCL § 61-1-22; SL 2012, ch 252, § 59; SL 2019, ch 216, § 5.
61-1-38. Student nurses, interns, and hospital patients exempt.
As used in this title, the term, employment, does not include:
(1) Service performed as a student nurse in the employ of a hospital or nurses training school by an individual who is enrolled in and is regularly attending classes in a nurses training school chartered or approved pursuant to state law; and service performed as an intern in the employ of a hospital by an individual who has completed a four years' course in a medical school chartered or approved pursuant to state law; or
(2) Service performed in the employ of a hospital, if such service is performed by a patient of the hospital, as defined in § 61-1-1.
Source: SDC 1939, § 17.0802 (7) (g) (16) as added by SL 1941, ch 82, § 3; SL 1971, ch 276, § 14; SL 2008, ch 277, § 24; SDCL § 61-1-23; SL 2012, ch 252, § 59.
61-1-39. Newspaper delivery by minors exempt.
As used in this title, the term, employment, does not include service performed by an individual under the age of eighteen in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution.
Source: SDC 1939, § 17.0802 (7) (g) (18) as added by SL 1941, ch 82, § 3; SL 2008, ch 277, § 27; SDCL § 61-1-26; SL 2012, ch 252, § 59.
61-1-41. Insurance agents and solicitors exempt.
As used in this title, the term, employment, does not include service performed by an individual for a person as an insurance agent or as an insurance solicitor, if all the services performed by the individual for the person is performed for remuneration solely by way of commission.
Source: SDC 1939, § 17.0802 (7) (g) (17) as added by SL 1941, ch 82, § 3; SL 2008, ch 277, § 29; SDCL § 61-1-28; SL 2012, ch 252, § 59.
61-1-44. Employment by close relative exempt.
As used in this title, the term, employment, does not include service performed by an individual in the employ of the individual's son, daughter, or spouse and service performed by a child under the age of twenty-one in the employ of the individual's father or mother.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (7) (g) (4); SL 1939, ch 86, § 1; SL 1941, ch 82, § 3; SL 2008, ch 277, § 30; SDCL § 61-1-30; SL 2012, ch 252, § 59.
61-1-45. Coverage determined by nature of employment for major part of pay period.
If the services performed during one-half or more of any period by an individual for the person employing the individual constitute employment, all the services of the individual for the period are deemed to be employment; but if the services performed during more than one-half of any such pay period by an individual for the person employing the individual does not constitute employment, then none of the services of the individual for the period are deemed to be employment. As used in this section, the term, pay period, means the period of not more than thirty-one consecutive days for which a payment of remuneration is ordinarily made to the individual by the person employing the individual.
This section is not applicable with respect to services performed in a pay period by an individual for the person employing the individual where any of the service is excepted by § 61-1-32.
Source: SDC 1939, § 17.0802 (7) (g) (20) as added by SL 1941, ch 82, § 3; SL 2008, ch 277, § 31; SDCL § 61-1-31; SL 2012, ch 252, § 59.
61-1-46. Wages defined--Maximum annual wages subject to coverage.
As used in this title, the term, wages, means remuneration paid in a calendar year to an employee by an employer or the employer's predecessor for employment during any calendar year. The term includes remuneration in addition to the wages defined in this section which are subject to a federal law imposing a tax against which credit may be taken for contributions required to be paid into a state unemployment fund.
The term does not include remuneration of more than:
(1) Seven thousand dollars, from January 1, 1983, to December 31, 2006, inclusive;
(2) Eight thousand five hundred dollars, from January 1, 2007, to December 31, 2007, inclusive;
(3) Nine thousand dollars, from January 1, 2008, to December 31, 2008, inclusive;
(4) Nine thousand five hundred dollars, from January 1, 2009, to December 31, 2009, inclusive;
(5) Ten thousand dollars, from January 1, 2010, to December 31, 2010, inclusive;
(6) Eleven thousand dollars, from January 1, 2011, to December 31, 2011, inclusive;
(7) Twelve thousand dollars, from January 1, 2012, to December 31, 2012, inclusive;
(8) Thirteen thousand dollars, from January 1, 2013, to December 31, 2013, inclusive;
(9) Fourteen thousand dollars, from January 1, 2014, to December 31, 2014, inclusive; and
(10) Fifteen thousand dollars, on and after January 1, 2015.
In this section, the term, employment, includes service constituting employment under any reemployment assistance or unemployment compensation law of another state.
Source: SDC 1939, § 17.0802 (13) (a) as added by SL 1941, ch 82, § 4; SL 1943, ch 77, § 1; SL 1947, ch 88, § 5; SL 1953, ch 76, § 2; SL 1971, ch 276, § 18; SL 1977, ch 420, § 16; SL 1983, ch 380, § 1; SL 2006, ch 267, § 1; SL 2010, ch 247, § 1, eff. Mar. 10, 2010; SDCL § 61-1-35; SL 2012, ch 252, § 59; SL 2019, ch 216, § 6.
61-1-47. National Guard weekend training payments not deemed wages.
As used in this title, the term, wages, does not include payments received by members of the South Dakota National Guard for weekend training.
Source: SL 1981, ch 368, § 1; SL 2008, ch 277, § 32; SDCL § 61-1-31.1; SL 2012, ch 252, § 59.
61-1-48. Employer's contributions to certain plans not deemed wages.
As used in this title, the term, wages, does not include the amount of any payment with respect to services performed on behalf of any person in its employ under a plan or system established by an employing unit which makes provision for persons in its employ generally or for a class or classes of persons including any amount paid by an employing unit for insurance on annuities, or into a fund, to provide for any payment on account of:
(1) Sickness or accident disability. However, in the case of payments made to an employee or any one of the employee's dependents, this subdivision excludes from wages only payments received under a worker's compensation law;
(2) Medical or hospitalization expenses in connection with sickness or accident disability;
(3) Death; or
(4) Retirement or pension if the payment is made pursuant to a qualified plan as provided in 26 U.S.C. §§ 401(k), 403b, 408(k), 457, and 408(p), other than any elective contributions under paragraph (2)(A)(i) thereof, as of January 1, 2006.
Source: SDC 1939, § 17.0802 (13) (b) as added by SL 1941, ch 82, § 4; SL 1985, ch 396, § 2; SL 2006, ch 266, § 1; SL 2007, ch 298, § 1; SDCL § 61-1-32; SL 2012, ch 252, § 59.
61-1-49. Social security tax payments not deemed wages.
As used in this title, the term, wages, does not include the payment by an employing unit without deduction from the remuneration of the individual in its employ of the tax imposed upon an individual in its employ under section 3101 of the federal Internal Revenue Code.
Source: SDC 1939, § 17.0802 (13) (c) as added by SL 1941, ch 82, § 4; SL 2008, ch 277, § 33; SDCL § 61-1-33; SL 2012, ch 252, § 59.
61-1-50. Dismissal payments not deemed wages.
As used in this title, the term, wages, does not include dismissal payments which the employing unit is not legally required to make.
Source: SDC 1939, § 17.0802 (13) (d) as added by SL 1941, ch 82, § 4; SL 2008, ch 277, § 34; SDCL § 61-1-34; SL 2012, ch 252, § 59.
61-1-51. Week of unemployment defined.
For the purposes of this title, an individual is considered unemployed in any calendar week during which the individual performs no service and with respect to which no wages or earnings are payable to the individual, or in any week of less than full-time work, if the wages or earnings payable to the individual, with respect to the week, are less than the individual's weekly benefit amount.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (10) (a); SL 1939, ch 86, § 1; SL 1941, ch 83, § 1; SL 1963, ch 122, § 1; SL 1979, ch 348, § 2; SL 1984, ch 333, § 1; SL 2008, ch 277, § 35; SDCL § 61-1-36; SL 2012, ch 252, § 59.
61-1-52. Registration at employment office required to commence week of unemployment.
For the purposes of this title, an individual's week of unemployment is deemed commenced only after the individual's registration at an employment office, except as the Department of Labor and Regulation may otherwise prescribe in rules promulgated pursuant to chapter 1-26.
Source: SL 1936 (SS), ch 3, § 19; SDC 1939, § 17.0802 (10) (d); SL 1939, ch 86, § 1; SL 1941, ch 83, § 1; SDC Supp 1960, § 17.0802 (10) (b); SL 1993, ch 375, § 17; SL 2008, ch 277, § 36; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-1-37; SL 2012, ch 252, § 59.
61-1-53. Rules covering temporary or partial employment.
The Department of Labor and Regulation shall promulgate rules pursuant to chapter 1-26 governing benefit eligibility of individuals whose employment is temporary or is other than full-time.
Source: SDC 1939, § 17.0802 (10) (a) as added by SL 1941, ch 83, § 1; SL 1963, ch 122, § 1; SL 1993, ch 375, § 18; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-1-38; SL 2012, ch 252, § 59.
61-1-54. Rules covering seasonal employment.
The Department of Labor and Regulation may, in accordance with rules promulgated by the department pursuant to chapter 1-26, determine whether an industry in this state is of a seasonal nature. The department shall promulgate rules pursuant to chapter 1-26 governing the benefit rights of those workers who are found to be engaged in a seasonal occupation.
Source: SDC 1939, § 17.0802 (10) (d) as added by SL 1941, ch 83, § 1; SDC Supp 1960, § 17.0802 (10) (c); SL 1993, ch 375, § 19; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-1-39; SL 2012, ch 252, § 59.
61-1-55. Title inoperative if federal tax inoperative--Disposition of unobligated funds.
If the tax imposed by title nine of the federal Social Security Act or any other federal tax against which contributions under this title may be credited, shall become inoperative, the provisions of this title shall become inoperative. Any unobligated fund in the state unemployment compensation fund or returned by the United States Treasurer, because the federal Social Security Act is inoperative, shall be refunded to the contributors pro rata to their unexpended contributions.
Source: SL 1936 (SS), ch 3, § 20; SDC 1939, § 17.0845; SL 2008, ch 277, § 38; SDCL § 61-1-41; SL 2012, ch 252, § 59.
CHAPTER 61-2
EMPLOYMENT SECURITY DIVISIONS
61-2-1 Superseded.
61-2-1.1 Department abolished--Performance of functions.
61-2-2 Superseded.
61-2-5 Repealed by SL 1973, ch 305, § 2.
61-2-6 Repealed by SL 1969, ch 218, § 2.
61-2-7 Repealed by SL 1988, ch 412.
61-2-7.1 Reemployment assistance advisory council--Composition and appointment--Functions--Meetings--Reports.
61-2-7.2 Direction and supervision by Department of Labor and Regulation--Independent functions retained by councils.
61-2-8 Meetings and functions of advisory council.
61-2-9 Repealed by SL 1971, ch 23, § 2.
61-2-10 61-2-10 to 61-2-11. Repealed by SL 2008, ch 277, §§ 41 to 43.
61-2-12 Superseded.
61-2-13 Political activity of employees--Prohibited and permitted activity.
61-2-14 Superseded.
61-2-15 Repealed
61-2-15.1 Repealed
61-2-15.2 Repealed
61-2-15.3 Repealed
61-2-15.4 Repealed
61-2-15.5 Repealed
61-2-15.6 Repealed
61-2-16 Administration of title by secretary--General powers.
61-2-17 61-2-17. Repealed by SL 2008, ch 277, § 45.
61-2-18 Recommendations to Governor and Legislature.
61-2-19 Representation of state to congressional delegation--Cooperation with agencies of other states.
61-2-20 Repealed by SL 1982, ch 16, § 44.
61-2-1. Superseded.
61-2-1.1. Department abolished--Performance of functions.
The Department of Employment Security is abolished, and all its functions shall be administered by the Department of Labor and Regulation as provided by § 1-37-3.
Source: SL 1973, ch 2 (Ex. Ord. 73-1), §§ 3(c), 90; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-2-2 to 61-2-4. Superseded.
61-2-5. Repealed by SL 1973, ch 305, § 2.
61-2-6. Repealed by SL 1969, ch 218, § 2.
61-2-7. Repealed by SL 1988, ch 412.
61-2-7.1. Reemployment assistance advisory council--Composition and appointment--Functions--Meetings--Reports.
The Governor shall appoint from a list submitted by the department a state reemployment assistance advisory council, composed of men and women, including an equal number of employer representatives and employee representatives who may fairly be regarded as representative because of their vocation, employment, or affiliations, and of any members representing the general public as the department may designate. The council shall aid the department in reviewing the reemployment assistance program as to the program's content, adequacy and effectiveness and to make recommendations for its improvement. The advisory council shall meet as frequently as the department determines is necessary, but not less than twice each year. The advisory council shall make reports of its meetings which shall include a record of its discussions and its recommendations. The department shall make the reports available to any interested persons or groups.
Source: SL 1971, ch 276, § 20; SL 2019, ch 216, § 7.
61-2-7.2. Direction and supervision by Department of Labor and Regulation--Independent functions retained by councils.
The reemployment assistance advisory council shall be administered under the direction and supervision of the Department of Labor and Regulation and the secretary thereof, but shall retain the respective quasi-judicial, quasi-legislative, advisory, other nonadministrative and special budgetary functions (as defined in § 1-32-1) otherwise vested in the council and shall exercise those functions independently of the secretary of labor and regulation.
Source: SL 1973, ch 2, §§ 91, 92; SL 1989, ch 30, § 85; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2019, ch 216, § 8.
61-2-8. Meetings and functions of advisory council.
The reemployment assistance advisory council appointed pursuant to § 61-2-7.1 shall meet on call of the department and shall aid the department in formulating policies and discussing problems relating to the administration of this title and in assuring impartiality and freedom from political influence in the solution of such problems.
Source: SL 1936 (SS), ch 3, § 11; SDC 1939, § 17.0806; SL 1943, ch 77, § 2; SL 1945, ch 78, § 2; SL 1971, ch 276, § 21; SL 1989, ch 30, § 86; SL 2019, ch 216, § 9.
61-2-9. Repealed by SL 1971, ch 23, § 2.
61-2-12. Superseded.
61-2-13. Political activity of employees--Prohibited and permitted activity.
The department may not appoint or employ any person who holds or is a candidate for any elective office in a partisan election. However, nothing in this section prevents an employee from being a candidate for or holding a nonpartisan office or being a candidate for or holding a political party office.
Source: SL 1936 (SS), ch 3, § 11; SDC 1939, § 17.0805; SL 1957, ch 87; SL 1961, ch 104; SL 1993, ch 377, § 3.
61-2-14. Superseded.
61-2-15. Repealed.
Source: SDC 1939, § 17.0805 as added by SL 1961, ch 104; SL 1968, ch 90; SL 1980, ch 33, § 3; SL 1981, ch 24, § 3; SL 1989, ch 447, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2013, ch 258, § 8; SL 2019, ch 22, §§ 1 and 45; SL 2020, ch 13, § 32.
61-2-15.1. Repealed.
Source: SL 1987, ch 386, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2020, ch 13, § 32.
61-2-15.3. Repealed.
Source: SL 1989, ch 447, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2020, ch 13, § 32.
61-2-15.4. Repealed.
Source: SL 1989, ch 447, § 3; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2020, ch 13, § 32.
61-2-15.5. Repealed.
Source: SL 1989, ch 447, § 4; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2020, ch 13, § 32.
61-2-15.6. Repealed.
Source: SL 1989, ch 447, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2020, ch 13, § 32.
61-2-16. Administration of title by secretary--General powers.
The secretary of labor and regulation shall administer this title. The secretary shall employ such persons, make such expenditures, require such reports, make such investigations, and take such other action as may be necessary or suitable to that end. The secretary shall determine the department's organization and methods of procedure in accordance with the provisions of this title.
Source: SL 1936 (SS), ch 3, § 11; SDC 1939, § 17.0807; SL 1951, ch 94, § 4; SL 1978, ch 359, § 19; SL 1993, ch 375, § 21; SL 2008, ch 277, § 44; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-2-18. Recommendations to Governor and Legislature.
If the secretary of labor and regulation believes that a change in contribution or benefit rates will become necessary to protect the solvency of the fund, the secretary shall promptly so inform the Governor and the Legislature, and make recommendations with respect thereto.
Source: SL 1936 (SS), ch 3, § 11; SDC 1939, § 17.0807; SL 1951, ch 94, § 4; SL 2008, ch 277, § 46; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-2-19. Representation of state to congressional delegation--Cooperation with agencies of other states.
If, in the judgment of the secretary of labor and regulation, the interests of the Department of Labor and Regulation established by this title are involved in any proposed or pending change in federal law or administrative policy pertaining to the program, the secretary may represent these interests to the delegation of this state in the federal Congress. The secretary may co-operate with the other state labor agencies through any association of such state agencies which has been or may hereafter be organized, when the interests of the states generally in their reemployment assistance or unemployment compensation program are similarly involved.
Source: SDC 1939, § 17.0807 as added by SL 1955, ch 61; SL 2008, ch 277, § 47; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2019, ch 216, § 10.
61-2-20. Repealed by SL 1982, ch 16, § 44.
61-3-1
General purposes of departmental programs--Assistance, investigations, and research.
61-3-2
Work record maintained by employing unit--Inspection by department.
61-3-3
Report required of employers by secretary.
61-3-4
Information confidential--Use by claimant at hearing--Violation as misdemeanor.
61-3-5
Reports and communications privileged in actions for defamation.
61-3-6
Preservation and destruction of departmental records.
61-3-7
Powers of departmental personnel in conduct of investigations and hearings.
61-3-8
Disobedience of subpoena not excused by privilege against self-incrimination--Immunity from prosecution after claim of privilege.
61-3-9
Disobedience of departmental subpoena--Misdemeanor--Separate offenses.
61-3-10
Judicial enforcement of departmental subpoena--Disobedience as contempt.
61-3-11, 61-3-12. Repealed.
61-3-13
Superseded.
61-3-14
Availability of laws, rules, and reports.
61-3-15
Repealed.
61-3-16
Criminal prosecutions by attorney general or state's attorney.
61-3-17
Representation of department in civil actions.
61-3-18
Promulgation of rules to secure federal benefits.
61-3-19
Arrangements with other states for coordinated administration of benefits.
61-3-20
Agreements with federal government and other states for coordinated collection of
contributions.
61-3-21
Cooperation and compliance with federal requirements--Reports and information.
61-3-22
Records made available to railroad retirement board.
61-3-23
Information furnished to federal public works agencies.
61-3-24
Employment security administration fund created--Moneys paid into fund--Purposes
for which used.
61-3-25
Separate administration and accounting for administration fund--Security provided
by depository.
61-3-26
Administration fund covered by state treasurer's bond--Deposit of recoveries on
bond.
61-3-27
State obligation to replace federal contributions expended in unauthorized manner.
61-3-28
Employment security contingency fund established--Interest, penalty, and fine
payments paid into fund--Restrictions on expenditures--Use of fund.
61-3-29
Refunds of interest, penalties, and fines paid from employment security contingency
fund.
61-3-30
Expenditures and refunds from employment security contingency fund--Deposit,
administration, and disbursement of fund.
61-3-31
Transfer of contingency fund balance to unemployment compensation fund.
61-3-1. General purposes of departmental programs--Assistance, investigations, and research.
The secretary of labor and regulation, with the advice and aid of the advisory councils, and through the department's appropriate divisions, shall take all appropriate steps to reduce and prevent unemployment; to encourage and assist in the adoption of practical methods of vocational training, retraining, and vocational guidance; to investigate, recommend, advise, and assist in the establishment and operation by municipalities, counties, school districts, and the state of reserves for public works to be used in times of business depression and unemployment; to promote the re-employment of unemployed workers throughout the state in every other way that may be feasible; and to these ends to carry on and publish the results of investigations and research studies.
Source: SL 1936 (SS), ch 3, § 11 (f); SDC 1939, § 17.0810; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-2. Work record maintained by employing unit--Inspection by department.
Each employing unit shall keep true and accurate work records containing information needed to administer this title according to rules promulgated pursuant to chapter 1-26 by the secretary of labor and regulation. The records shall be kept for four years and shall be open to inspection and be subject to being copied by the Department of Labor and Regulation at any reasonable time and as often as may be necessary.
Source: SL 1936 (SS), ch 3, § 11 (g); SDC 1939, § 17.0814; SL 1939, ch 84, § 10; SL 1983, ch 22, § 8; SL 1993, ch 375, § 22; SL 2008, ch 277, § 48; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-3. Report required of employers by secretary.
The secretary of labor and regulation may require from any employing unit any sworn or unsworn reports, with respect to persons employed by it, which the secretary deems necessary for the effective administration of this title.
Source: SL 1936 (SS), ch 3, § 11 (g); SDC 1939, § 17.0814; SL 1939, ch 84, § 10; SL 1943, ch 80; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-4. Information confidential--Use by claimant at hearing--Violation as misdemeanor.
No information obtained under § 61-3-2 or 61-3-3 may be published or open to public inspection other than to public employees in the performance of their public duties in any manner revealing the employing unit's identity, but any claimant at a hearing before the Department of Labor and Regulation shall be supplied with information from such records to the extent necessary for the proper presentation of the claimant's claim. Any employee or officer of the Department of Labor and Regulation who violates any of the provisions of this section commits a Class 2 misdemeanor.
Source: SL 1936 (SS), ch 3, § 11 (g); SDC 1939, §§ 17.0814, 17.9903; SL 1943, ch 80; SL 1978, ch 359, § 2; SL 2008, ch 277, § 49; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-5. Reports and communications privileged in actions for defamation.
No letter, report, communication, or other matter, whether oral or written, from the employer, the employer's agents, representatives or employees, to each other or to the secretary of labor and regulation, the secretary's agents, representatives or employees, which have been written or made in connection with the requirements and administration of this title or any rules promulgated pursuant to this title, may be made subject matter or basis for any action, whether civil or criminal, for slander or libel.
Source: SDC 1939, § 17.0814 as added by SL 1943, ch 80; SL 1993, ch 375, § 23; SL 2008, ch 277, § 50; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-6. Preservation and destruction of departmental records.
The department shall maintain any record relating to benefit claims for a period of two years and any record relating to employer contributions for a period of five years. In order to conserve filing and storage space, the secretary may thereafter order such a record destroyed. The secretary may order other records destroyed after a period of one year.
Source: SDC 1939, § 17.0847 as enacted by SL 1945, ch 78, § 4; SL 1951, ch 94, § 11; SL 2008, ch 277, § 51.
61-3-7. Powers of departmental personnel in conduct of investigations and hearings.
In the discharge of the duties imposed by this title, the secretary of labor and regulation and any duly authorized representative of the secretary may administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this title.
Source: SL 1936 (SS), ch 3, § 11 (h); SDC 1939, § 17.0815; SL 2008, ch 277, § 52; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-8. Disobedience of subpoena not excused by privilege against self-incrimination--Immunity from prosecution after claim of privilege.
No person may be excused from attending and testifying or from producing books, papers, correspondence, memoranda, and other records before the Department of Labor and Regulation or in obedience to the subpoena of the secretary or any duly authorized representative of the secretary in any cause or proceeding before the department, on the ground that the testimony or evidence, documentary or otherwise, required of the person may tend to incriminate the person or subject the person to a penalty or forfeiture. However, no person may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which the person is compelled, after having claimed privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that the person so testifying is not exempt from prosecution and punishment for perjury committed in so testifying.
Source: SL 1936 (SS), ch 3, § 11 (j); SDC 1939, § 17.0816; SL 2008, ch 277, § 53; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-9. Disobedience of departmental subpoena--Misdemeanor--Separate offenses.
Any person who without just cause fails or refuses to attend and testify or to answer any lawful inquiry or to produce books, papers, correspondence, memoranda, or other records, if it is in the person's power to do so, in obedience to a subpoena issued pursuant to the provisions of § 61-3-7 is guilty of a Class 2 misdemeanor. Each day such violation continues shall be deemed to be a separate offense.
Source: SL 1936 (SS), ch 3, § 11 (i); SDC 1939, § 17.9904; SL 1976, ch 158, § 43-6; SL 2008, ch 277, § 54.
61-3-10. Judicial enforcement of departmental subpoena--Disobedience as contempt.
In case of contumacy by, or refusal to obey a subpoena issued to any person pursuant to § 61-3-7, any court of this state within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which the person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the secretary of labor and regulation or the secretary's duly authorized representative, may issue to the person an order requiring the person to appear before the secretary or the secretary's duly authorized representative, there to produce evidence if so ordered or there to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by the court as a contempt thereof.
Source: SL 1936 (SS), ch 3, § 11 (i); SDC 1939, § 17.0815; SL 2008, ch 277, § 55; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-11, 61-3-12. Repealed by SL 1983, ch 22, §§ 9, 10.
61-3-13. Superseded.
61-3-14. Availability of laws, rules, and reports.
The secretary of labor and regulation shall make available for the public the text of this title, administrative rules promulgated pursuant to this title, annual reports to the Governor, and any other material the secretary deems relevant and suitable and shall furnish the same to any person upon application therefor.
Source: SL 1936 (SS), ch 3, § 11 (c); SDC 1939, § 17.0809; SL 1993, ch 375, § 24; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2012, ch 252, § 55.
61-3-15. Repealed by SL 1978, ch 359, § 3.
61-3-16. Criminal prosecutions by attorney general or state's attorney.
Any criminal action for violation of any provision of this title or of any rule promulgated pursuant to this title shall be prosecuted by the attorney general of the state; or, at the attorney general's request and under the attorney general's direction, by the state's attorney of any county in which the employer has a place of business or the violator resides.
Source: SL 1936 (SS), ch 3, § 17; SDC 1939, § 17.0841; SL 1993, ch 375, § 25; SL 2008, ch 277, § 56.
61-3-17. Representation of department in civil actions.
In any civil action to enforce the provisions of this title the Department of Labor and Regulation and the state may be represented by any qualified attorney who is a regular salaried employee of the department and is designated by the department for this purpose or at the department's request, by the attorney general.
Source: SL 1936 (SS), ch 3, § 17; SDC 1939, § 17.0841; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-18. Promulgation of rules to secure federal benefits.
The department shall promulgate rules pursuant to chapter 1-26 necessary to secure to this state and its citizens all advantages available under the provisions of the Social Security Act that relate to reemployment assistance or unemployment compensation, the Federal Unemployment Tax Act, the Wagner-Peyser Act, and the Federal-State Extended Unemployment Compensation Act of 1970.
Source: SDC 1939, § 17.0811 as added by SL 1939, ch 87, § 1; SL 1971, ch 276, § 23; SL 1993, ch 375, § 26; SL 2019, ch 216, § 11.
61-3-19. Arrangements with other states for coordinated administration of benefits.
The department shall participate in any arrangements for the payment of compensation on the basis of combining an individual's wages and employment covered under this title with the individual's wages and employment covered under the reemployment assistance or unemployment compensation laws of other states which are approved by the United States secretary of labor in consultation with the state reemployment assistance or unemployment compensation agencies as reasonably calculated to assure the prompt and full payment of compensation in the situations and which include provisions for applying the base period of a single state law to a claim involving the combining of an individual's wages and employment covered under two or more state reemployment assistance or unemployment compensation laws, and avoiding the duplicate use of wages and employment by reason of such combining.
Source: SL 1936 (SS), ch 3, § 11 (1); SDC 1939, § 17.0812; SL 1939, ch 87, § 2; SL 1943, ch 77, § 3; SDC Supp 1960, § 17.0812 (1); SL 1971, ch 276, § 24; SL 2008, ch 277, § 57; SL 2019, ch 216, § 12.
61-3-20. Agreements with federal government and other states for coordinated collection of contributions.
The Department of Labor and Regulation may enter into reciprocal agreements with the appropriate agencies of other states or of the federal government relating to the collection and payment of contributions by employers with respect to employment not localized within this state.
Source: SDC 1939, § 17.0812 (3) as added by SL 1939, ch 87, § 2; SL 1943, ch 77, § 3; SDC Supp 1960, § 17.0812 (2); SL 2008, ch 277, § 58; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-21. Cooperation and compliance with federal requirements--Reports and information.
In the administration of this title, the South Dakota Department of Labor and Regulation shall co-operate to the fullest extent consistent with the provisions of this title, with the secretary of labor and regulation of the United States; shall make such reports, in the form and containing the information as the secretary of labor and regulation may from time to time require. The department shall comply with such provisions as the secretary of labor and regulation may from time to time find necessary to assure the correctness and verification of such reports. The department shall comply with the regulations prescribed by the secretary of labor and regulation governing the expenditures of such sums as may be allotted and paid to this state under Title III of the Social Security Act for the purpose of assisting in the administration of this title.
Source: SL 1936 (SS), ch 3, § 11 (k); SDC 1939, § 17.0811; SL 1939, ch 87, § 1; SL 2008, ch 277, § 59; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-22. Records made available to railroad retirement board.
The Department of Labor and Regulation may make the state's records relating to the administration of this title available to the railroad retirement board, and may furnish the railroad retirement board, at the expense of such board, such copies thereof as the railroad retirement board deems necessary for its purposes.
Source: SDC 1939, § 17.0811 as added by SL 1939, ch 87, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-23. Information furnished to federal public works agencies.
Upon request therefor the Department of Labor and Regulation shall furnish to any agency of the United States charged with the administration of public works or assistance through public employment, the name, address, ordinary occupation, and employment status of each recipient of benefits and such recipient's rights to further benefits under this title.
Source: SL 1936 (SS), ch 3, § 11 (k); SDC 1939, § 17.0811; SL 1939, ch 87, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-24. Employment security administration fund created--Moneys paid into fund--Purposes for which used.
There is created in the state treasury a special fund to be known as the employment security administration fund. Moneys which are deposited or paid into this fund are continuously available to the Department of Labor and Regulation for expenditure in accordance with the provisions of this title, and may not lapse at any time or be transferred to any other fund. All moneys in this fund which are received from the federal government or any agency thereof shall be expended solely for the purposes and in the amounts found necessary by the United States secretary of labor for the proper and efficient administration of this title. The fund shall consist of all moneys received from the United States of America, or any agency thereof, including the United States secretary of labor, and all moneys received from any other source for such purpose and shall include also any moneys received from the railroad retirement board as compensation for services or facilities supplied to said board, any amounts paid pursuant to any surety bond or insurance policy or from other sources for losses sustained by the employment security administration fund or by reason of damage to equipment or supplies purchased from moneys in such fund, and any proceeds realized from the sale or disposition of any such equipment or supplies which may no longer be necessary for the proper administration of this title.
Source: SL 1936 (SS), ch 3, § 13; SDC 1939, § 17.0817; SL 1939, ch 87, § 4; SL 1939, ch 88, § 1; SL 1941, ch 84; SDC Supp 1960, § 17.0817 (1); SL 1965, ch 97, § 1; SL 2008, ch 277, § 60; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-25. Separate administration and accounting for administration fund--Security provided by depository.
Any money in the employment security administration fund shall be deposited, administered, and disbursed in the same manner and under the same conditions and requirements as is provided by law for other special funds in the state treasury. However, no money in this fund may be commingled with other state funds. The money shall be maintained in a separate account on the books of a depository bank. The money shall be secured by the depository in which it is held to the same extent and in the same manner as required by the general depository law of the state, and collateral pledged shall be maintained in a separate custody account.
Source: SL 1936 (SS), ch 3, § 13; SDC 1939, § 17.0817; SL 1939, ch 87, § 4; SL 1939, ch 88, § 1; SL 1941, ch 84; SDC Supp 1960, § 17.0817 (1); SL 1965, ch 97, § 1; SL 2008, ch 277, § 61.
61-3-26. Administration fund covered by state treasurer's bond--Deposit of recoveries on bond.
The state treasurer is liable on the state treasurer's official bond for the faithful performance of the treasurer's duties in connection with the employment security administration fund provided for under this chapter. The liability exists in addition to any liability upon any separate bond which may be given. Any sum recovered on any surety bond for losses sustained by the employment security administration fund shall be deposited in the fund.
Source: SL 1936 (SS), ch 3, § 13; SDC 1939, § 17.0817; SL 1939, ch 87, § 4; SL 1939, ch 88, § 1; SL 1941, ch 84; SDC Supp 1960, § 17.0817 (1); SL 1965, ch 97, § 1; SL 2008, ch 277, § 62.
61-3-27. State obligation to replace federal contributions expended in unauthorized manner.
This state recognizes its obligation to replace, and hereby pledges the faith of this state that funds will be provided in the future, and applied to the replacement of, any moneys received from the United States secretary of the treasury under Title III of the Social Security Act, any unencumbered balances in the employment security administration fund as of that date, any moneys thereafter granted to this state pursuant to the provisions of the Wagner-Peyser Act, which the United States secretary of labor finds have, because of any action or contingency, been lost or have been expended for purposes other than, or in amounts in excess of, those found necessary by the United States secretary of labor for the proper administration of this title. Such moneys shall be promptly replaced by moneys appropriated for such purpose from the general funds of this state to the employment security administration fund for expenditure as provided in § 61-3-24. The Department of Labor and Regulation shall promptly report to the Governor, and the Governor to the Legislature, the amount required for such replacement. This section does not relieve this state of its obligation with respect to funds received prior to July 1, 1941, pursuant to the provisions of title III of the Social Security Act.
Source: SDC 1939, § 17.0817 (2) as added by SL 1941, ch 84; SL 1965, ch 97, § 1; SL 2008, ch 277, § 63; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-3-28. Employment security contingency fund established--Interest, penalty, and fine payments paid into fund--Restrictions on expenditures--Use of fund.
There is established a special fund to be known as the employment security contingency fund which shall be maintained by the state treasurer separate and apart from all public moneys or funds of the State of South Dakota. The fund shall consist of all interest, penalties and fines collected under this title together with any interest earned on moneys in this fund. Any provisions of this title to the contrary notwithstanding, all interest, penalty and fine payments collected shall be deposited in the clearing account of the unemployment compensation fund for clearance only and may not become a part of such fund. After clearance thereof, the moneys derived from such payments, less refunds made pursuant to § 61-3-29 and other provisions of this title, shall be deposited in the employment security contingency fund. The moneys may not be expended or available for expenditure in any manner which would permit their substitution for, or a corresponding reduction in, federal funds which would, in the absence of the moneys, be available to finance expenditures for the administration of this title, but nothing in §§ 61-3-28 to 61-3-31, inclusive, prevents the moneys from being used as a revolving fund, to cover expenditures for which federal funds have been requested but have not yet been received, subject to the charging of such expenditures against such funds when received. The moneys in this fund shall be used by the department, with prior approval of the Governor for each withdrawal, for the payment of costs of administration which the Governor finds are not properly and validly chargeable against federal grants (or other funds) received for or in the employment security administration fund. The moneys in this fund are hereby specifically made available to the department, with prior approval by the Governor, for replacement within a reasonable period of time, of any moneys received by this state in the form of grants from the federal government for administrative expenses which because of any action or contingency have been lost or have been expended for purposes other than, or in excess of, those found by the United States secretary of labor to be necessary for the proper and efficient administration of this title. Such moneys shall be available either to satisfy the obligations incurred directly or by transferring the required amount from the employment security contingency fund to the employment security administration fund.
Source: SL 1968, ch 86, § 3; SL 2008, ch 277, § 64.
61-3-29. Refunds of interest, penalties, and fines paid from employment security contingency fund.
Refunds of interest, penalties and fines erroneously collected pursuant to this title may be made from this fund, or from the interest, penalty and fine moneys which are temporarily in the clearing account in the unemployment compensation fund pending their transfer to the employment security contingency fund. No interest and penalty payments may be refunded from the unemployment compensation fund.
Source: SL 1968, ch 86, § 3; SL 2008, ch 277, § 65.
61-3-30. Expenditures and refunds from employment security contingency fund--Deposit, administration, and disbursement of fund.
The moneys in this fund are continuously available to the department, with prior approval by the Governor, for expenditures and refunds in accordance with the provisions of §§ 61-3-28 and 61-3-29. No money may lapse at any time or be transferred to any other fund or account except as provided in § 61-3-31. All moneys in the employment security contingency fund shall be deposited, administered, and disbursed in the same manner as is provided by law for other special funds of the state treasurer.
Source: SL 1968, ch 86, § 3; SL 2008, ch 277, § 66.
61-3-31. Transfer of contingency fund balance to unemployment compensation fund.
If on September thirtieth of any calendar year the balance in the employment security contingency fund exceeds fifteen thousand dollars by one thousand dollars or more, the state treasurer shall transfer the excess to the unemployment compensation fund.
Source: SL 1968, ch 86, § 3; SL 2008, ch 277, § 67.
61-4-1
Fund created--General purpose.
61-4-2
Contributions, receipts, and earnings constituting fund.
61-4-3
Secretary to administer fund--Liability on bond.
61-4-4
Separate accounts within fund.
61-4-5
Receipts deposited in clearing account--Refunds from clearing account--Deposits to
trust fund held by secretary of treasury.
61-4-6
Requisitions on trust fund for payment of benefits and refunds.
61-4-7
Deposit of requisitioned moneys in benefit and clearing accounts--Payment of
benefits and refunds.
61-4-8
Disposition of unexpended balance of requisitioned moneys.
61-4-9
Source of moneys in benefit account.
61-4-10
Depository for clearing and benefit accounts.
61-4-11
Reversion of unclaimed checks and warrants.
61-4-12
Repealed.
61-4-13
Provisions relating to trust fund dependent on separate accounting by secretary of
treasury.
61-4-14
Transfer to secretary on termination of trust fund or separate accounting.
61-4-15
Investment of trust fund moneys transferred to secretary.
61-4-1. Fund created--General purpose.
There is hereby established as a special fund separate and apart from all public moneys or funds of this state an unemployment compensation fund, which shall be administered by the Department of Labor and Regulation exclusively for the purpose of this title.
Source: SL 1936 (SS), ch 3, § 9 (a); SDC 1939, § 17.0818; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-4-2. Contributions, receipts, and earnings constituting fund.
The unemployment compensation fund shall consist of:
(1) All contributions collected under this title together with any interest and penalties thereon collected pursuant to §§ 61-5-57 and 61-5-58;
(2) Interest earned upon any moneys in the fund;
(3) Any property or securities acquired through the use of moneys belonging to the fund; and
(4) All earnings of such property or securities.
All moneys in the fund shall be mingled and undivided.
Source: SL 1936 (SS), ch 3, § 9 (a); SDC 1939, § 17.0818; SL 1968, ch 86, § 1; SL 2013, ch 258, § 9.
61-4-3. Secretary to administer fund--Liability on bond.
The secretary of labor and regulation is custodian of the fund and shall administer the fund and shall issue warrants or checks upon it. The secretary is liable on the secretary's official bond for the faithful performance of the secretary's duties as custodian of the unemployment compensation fund.
Source: SL 1936 (SS), ch 3, § 9 (b); SDC 1939, § 17.0819; SL 1943, ch 81; SL 1965, ch 97, § 3; SL 2008, ch 277, § 68; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-4-4. Separate accounts within fund.
The department shall maintain within the unemployment compensation fund four separate accounts:
(1) A clearing account;
(2) An unemployment trust fund account;
(3) A benefit account; and
(4) A pool account.
Source: SL 1936 (SS), ch 3, § 9 (b); SDC 1939, § 17.0819; SL 1943, ch 81; SL 1965, ch 97, § 3; SL 1971, ch 276, § 25.
61-4-5. Receipts deposited in clearing account--Refunds from clearing account--Deposits to trust fund held by secretary of treasury.
All moneys payable to the unemployment compensation fund upon receipt thereof by the Department of Labor and Regulation shall immediately be deposited in the clearing account. Refunds payable pursuant to §§ 61-1-31 and 61-5-56 may be paid from the clearing account. After clearance thereof all other moneys in the clearing account shall immediately be deposited with the secretary of the treasury of the United States of America to the credit of the account of this state in the unemployment trust fund established and maintained pursuant to section 904 of the Social Security Act as amended, any provisions of law in this state relating to the deposit, administration, release, or disbursement of moneys in the possession or custody of this state to the contrary notwithstanding.
Source: SL 1936 (SS), ch 3, § 9 (b); SDC 1939, § 17.0819; SL 1943, ch 81; SL 1965, ch 97, § 3; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2013, ch 258, § 10.
61-4-6. Requisitions on trust fund for payment of benefits and refunds.
Moneys shall be requisitioned from this state's account in the unemployment trust fund solely for the payment of benefits and refunds to employers. The secretary of labor and regulation shall from time to time requisition from the unemployment trust fund only such amounts as are necessary for the payment of benefits for a reasonable future period and for refunds to employers.
Source: SL 1936 (SS), ch 3, § 9 (c); SDC 1939, § 17.0820; SL 1947, ch 88, § 8; SL 1951, ch 94, § 5; SL 1965, ch 97, § 4; SL 1983, ch 22, § 11; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-4-7. Deposit of requisitioned moneys in benefit and clearing accounts--Payment of benefits and refunds.
Upon receipt thereof, the secretary shall deposit the moneys requisitioned for the payment of benefits in the benefit account and shall issue warrants or checks for the payment of benefits solely from the benefit account. The secretary shall deposit the moneys requisitioned for the payment of refunds in the clearing account and shall issue checks for the payment of refunds solely from the clearing account.
Expenditures from the benefit account and refunds from the clearing account are not subject to any provisions of law requiring specific appropriations or other formal release by state officers of money in their custody.
Source: SL 1936 (SS), ch 3, § 9 (c); SDC 1939, § 17.0820; SL 1947, ch 88, § 8; SL 1951, ch 94, § 5; SL 1965, ch 97, § 4; SL 2008, ch 277, § 69.
61-4-8. Disposition of unexpended balance of requisitioned moneys.
Any balance of moneys requisitioned from the unemployment trust fund, which remains unclaimed or unpaid in the benefit account or clearing account after the expiration of the period for which sums were requisitioned, shall either be deducted from estimates for, and may be utilized for the payment of benefits or refunds during succeeding periods, or in the discretion of the secretary of labor and regulation shall be redeposited with the secretary of the treasury of the United States of America to the credit of this state's account in the unemployment trust fund as provided in § 61-4-5.
Source: SL 1936 (SS), ch 3, § 9 (c); SDC 1939, § 17.0820; SL 1947, ch 88, § 8; SL 1951, ch 94, § 5; SL 1965, ch 97, § 4; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-4-9. Source of moneys in benefit account.
The benefit account shall consist of all moneys requisitioned from the state's account in the unemployment trust fund.
Source: SL 1936 (SS), ch 3, § 9 (b); SDC 1939, § 17.0819; SL 1943, ch 81; SL 1965, ch 97, § 3.
61-4-10. Depository for clearing and benefit accounts.
Moneys in the clearing and benefit accounts may be deposited under the direction of the secretary of labor and regulation in any bank or public depository in which general funds of the state may be deposited. However, no public deposit insurance charge or premium may be paid out of the fund.
Source: SL 1936 (SS), ch 3, § 9 (b); SDC 1939, § 17.0819; SL 1943, ch 81; SL 1965, ch 97, § 3; SL 2008, ch 277, § 70; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-4-11. Reversion of unclaimed checks and warrants.
If after twenty-four months, any check or warrant issued pursuant to the provisions of this title is unclaimed by the intended recipient, the amount of such check shall remain or revert to the credit of the original fund or account against which it was drawn, any provisions of the law in this state to the contrary notwithstanding.
Source: SDC 1939, § 17.0820 as added by SL 1965, ch 97, § 4.
61-4-12. Repealed by SL 1969, ch 86.
61-4-13. Provisions relating to trust fund dependent on separate accounting by secretary of treasury.
The provisions of §§ 61-4-1 to 61-4-11, inclusive, to the extent that they relate to the unemployment trust fund shall be operative only so long as such unemployment trust fund continues to exist and so long as the secretary of the treasury of the United States of America continues to maintain for this state a separate book account of all funds deposited therein by this state for benefit purposes, together with this state's proportionate share of the earnings of such unemployment trust fund, from which no other state is permitted to make withdrawals.
Source: SL 1936 (SS), ch 3, § 9 (d); SDC 1939, § 17.0821; SL 1965, ch 97, § 5.
61-4-14. Transfer to secretary on termination of trust fund or separate accounting.
If and when the unemployment trust fund ceases to exist, or the separate book account mentioned in § 61-4-13 is no longer maintained, all moneys, properties, or securities therein belonging to the unemployment compensation fund of this state shall be transferred to the secretary of labor and regulation who shall hold, invest, transfer, sell, deposit, and release such moneys, properties, or securities in accordance with the provisions of this title.
Source: SL 1936 (SS), ch 3, § 9 (d); SDC 1939, § 17.0821; SL 1965, ch 97, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-4-15. Investment of trust fund moneys transferred to secretary.
Moneys transferred to the secretary of labor and regulation pursuant to § 61-4-14 shall be invested in the following readily marketable classes of securities: bonds or other interest-bearing obligations of the United States of America or of the state of South Dakota. Such investment shall at all times be so made that all the assets of the fund shall always be readily convertible into cash when needed for the payment of benefits.
Source: SL 1936 (SS), ch 3, § 9 (d); SDC 1939, § 17.0821; SL 1965, ch 97, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
CHAPTER 61-5
EMPLOYERS' CONTRIBUTIONS AND ACCOUNTS
61-5-1 Employer subject to title for entire year.
61-5-2 Repealed by SL 1971, ch 276, § 93.
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 to § 61-5-32 by SL 2012, ch 252, § 59.
61-5-6 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.
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.
61-5-16 61-5-16. Repealed by SL 2008, ch 277, § 75.
61-5-17 Termination of coverage on employer's cessation of business.
61-5-18 Provisions governing employers' contributions.
61-5-18.1 Temporary and obsolete.
61-5-18.5 Repealed by SL 1993, ch 377, §§ 4 to 9.
61-5-18.11 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 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 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.
61-5-23.1 Repealed by SL 1971, ch 276, § 93.
61-5-23.2 61-5-23.2. Repealed by SL 2008, ch 277, § 86.
61-5-24 Initial contribution rates for employers--Employer classification--Experience rating.
61-5-24.1 Transferred to §§ 61-5-29, 61-5-29.1 by SL 2012, ch 252, § 59.
61-5-25 Employer's contribution rates--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 through 2019.
61-5-25.5 Employer's reserve ratio--Contribution rates for 2020 through 2023.
61-5-25.6 Employer's reserve ratio--Contribution rates for 2024 and thereafter.
61-5-26 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.
61-5-28 Increase in all employers' rate 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--Promulgation of rules.
61-5-29.1 Employer's investment in South Dakota's future fund--Purposes.
61-5-29.2 Transferred to § 61-5-41 by SL 2012, ch 252, § 59.
61-5-29.3 Employer's investment in South Dakota's future fund--Reporting requirements.
61-5-30 61-5-30. Repealed by SL 2005, ch 280, § 3.
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 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.
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.
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 by SL 1983, ch 383, § 1.
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.
61-5-6 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.
61-5-17. 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.
61-5-18.14. 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.
61-5-20. Repealed by SL 1971, ch 276, § 93.
61-5-20.1. Repealed by SL 1984, ch 334, § 4.
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.
61-5-24. 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.
61-5-25. Employer's contribution rates--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. The following rate schedules apply:
(1) From January 1, 2018, to December 31, 2023, inclusive:
(a) Schedule A is in effect for any calendar year when the South Dakota average high cost multiplier ratio is less than 1.60; and
(b) 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.
(2) Beginning January 1, 2024:
(a) Schedule A is in effect for any calendar year when the South Dakota average high cost multiplier ratio is less than 1.30;
(b) Schedule B is in effect for any calendar year when the South Dakota average high cost multiplier ratio is less than 1.50 and greater than or equal to 1.30; and
(c) Schedule C is in effect for any calendar year when the South Dakota average high cost multiplier ratio is greater than or equal to 1.50.
For purposes of this section, the term, average high cost multiple, has the same meaning given in 20 C.F.R. § 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; SL 2023, ch 171, § 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 through 2019.
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 January 1, 2018, to December 31, 2019, inclusive.
Source: SL 2017, ch 217, § 3; SL 2019, ch 217, § 1.
61-5-25.5. Employer's reserve ratio--Contribution rates for 2020 through 2023.
The employer's reserve ratio for calendar year 2020 to end of calendar year 2023 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 "B" | ||
Contribution Rate | Reserve Ratio | |
Schedule A | Schedule B |
|
9.45% | 9.30% | Less than -7.00% |
8.95% | 8.80% | -7.00% and Less than -6.50% |
8.45% | 8.30% | -6.50% and Less than -6.00% |
7.95% | 7.80% | -6.00% and Less than -5.50% |
7.45% | 7.30% | -5.50% and Less than -5.00% |
6.95% | 6.80% | -5.00% and Less than -4.50% |
6.45% | 6.30% | -4.50% and Less than -4.00% |
5.95% | 5.80% | -4.00% and Less than -3.50% |
5.45% | 5.30% | -3.50% and Less than -3.00% |
4.95% | 4.80% | -3.00% and Less than -2.50% |
4.45% | 4.30% | -2.50% and Less than -2.00% |
3.95% | 3.80% | -2.00% and Less than -1.50% |
3.45% | 3.30% | -1.50% and Less than -1.00% |
2.95% | 2.80% | -1.00% and Less than -0.75% |
2.45% | 2.30% | -0.75% and Less than -0.50% |
1.95% | 1.80% | -0.50% and Less than -0.25% |
1.45% | 1.30% | -0.25% and Less than 0.00% |
0.95% | 0.80% | 0.00% and Less than 0.50% |
0.70% | 0.55% | 0.50% and Less than 0.75% |
0.55% | 0.40% | 0.75% and Less than 1.00% |
0.35% | 0.20% | 1.00% and Less than 1.25% |
0.25% | 0.10% | 1.25% and Less than 1.50% |
0.15% | 0.00% | 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, 2020, to December 31, 2023, inclusive.
Source: SL 2019, ch 217, § 2; SL 2023, ch 171, § 2.
61-5-25.6. Employer's reserve ratio--Contribution rates for 2024 and thereafter.
The employer's reserve ratio for calendar year 2024 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 | Schedule C |
| ||
9.45% | 9.30% | 8.80% | Less than -7.00% | ||
8.95% | 8.80% | 8.30% | -7.00% and Less than -6.50% | ||
8.45% | 8.30% | 7.80% | -6.50% and Less than -6.00% | ||
7.95% | 7.80% | 7.30% | -6.00% and Less than -5.50% | ||
7.45% | 7.30% | 6.80% | -5.50% and Less than -5.00% | ||
6.95% | 6.80% | 6.30% | -5.00% and Less than -4.50% | ||
6.45% | 6.30% | 5.80% | -4.50% and Less than -4.00% | ||
5.95% | 5.80% | 5.30% | -4.00% and Less than -3.50% | ||
5.45% | 5.30% | 4.80% | -3.50% and Less than -3.00% | ||
4.95% | 4.80% | 4.30% | -3.00% and Less than -2.50% | ||
4.45% | 4.30% | 3.80% | -2.50% and Less than -2.00% | ||
3.95% | 3.80% | 3.30% | -2.00% and Less than -1.50% | ||
3.45% | 3.30% | 2.80% | -1.50% and Less than -1.00% | ||
2.95% | 2.80% | 2.30% | -1.00% and Less than -0.75% | ||
2.45% | 2.30% | 1.80% | -0.75% and Less than -0.50% | ||
1.95% | 1.80% | 1.30% | -0.50% and Less than -0.25% | ||
1.45% | 1.30% | 0.80% | -0.25% and Less than 0.00% | ||
0.95% | 0.80% | 0.30% | 0.00% and Less than 0.50% | ||
0.70% | 0.55% | 0.05% | 0.50% and Less than 0.75% | ||
0.55% | 0.40% | 0.00% | 0.75% and Less than 1.00% | ||
0.35% | 0.20% | 0.00% | 1.00% and Less than 1.25% | ||
0.25% | 0.10% | 0.00% | 1.25% and Less than 1.50% | ||
0.15% | 0.00% | 0.00% | 1.50% and Less than 1.75% | ||
0.05% | 0.00% | 0.00% | 1.75% and Less than 2.25% | ||
0.00% | 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, 2024.
Source: SL 2023, ch 171, § 3.
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' rate 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 through December 31, 2023, 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 "B" | |
Balance in Fund | Rates |
$11,000,000 | 0.1 % |
10,500,000 | 0.2 % |
10,000,000 | 0.3 % |
9,500,000 | 0.4 % |
9,000,000 | 0.5 % |
8,500,000 | 0.6 % |
8,000,000 | 0.7 % |
7,500,000 | 0.8 % |
7,000,000 | 0.9 % |
6,500,000 | 1.0 % |
6,000,000 | 1.25% |
5,500,000 | 1.5 % |
If on the last day of any calendar quarter beginning January 1, 2024, the average high cost multiplier ratio ("AHCM"), as defined in § 61-5-25, calculated on 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 ratio appearing in Column A below, then all employers' rates must 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 |
AHCM between 0.60 and 0.75 AHCM between 0.50 and 0.59 AHCM between 0.40 and 0.49 AHCM between 0.30 and 0.39 AHCM between 0.20 and 0.29 AHCM between 0.00 and 0.19 AHCM less than 0.00 | 0.1% 0.2% 0.3% 0.4% 0.5% 1.0% 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 remain in effect until the balance in the unemployment fund on the last day of any quarter through December 31, 2023, is between $11,000,000 and $16,500,000. The increased rate must be one-tenth of one percent if the balance in the fund is between $11,000,000 and $16,500,000. Beginning January 1, 2024, the rates remain in effect until the balance in the unemployment fund on the last day of any quarter is greater than the highest ratio appearing in Column A. The increased rate is one-tenth of one percent if the balance is more than the highest average high cost multiplier ratio appearing in Column A but less than an average high cost multiplier ratio of 1.0. However, under no circumstances may any employer be required to pay contributions at a rate, including the adjustment percentage, of more than twelve percent. Any rate increase based on this section remains 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 computation date and experience rating account balance used to determine contribution rates must be used in the application of this section. Any payments must be credited to the experience rating account of the employer. However, if amounts paid under this section are used to pay interest on advances made to the state from the federal unemployment account in the federal Unemployment Trust Fund under 42 U.S.C. § 1321 (2004), these amounts may not be credited to an employer's experience rating account.
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; SL 2023, ch 171, § 4.
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 through calendar year 2019, pursuant to § 61-5-25.5 for calendar year 2020 through calendar year 2023, and pursuant to § 61-5-25.6 for calendar year 2024 and each year thereafter, 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 must 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, must 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; SL 2019, ch 217, § 3; SL 2023, ch 171, § 5.
61-5-29. Investment fee--Promulgation of rules.
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, must 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 must be determined pursuant to § 61-5-25.3 through calendar year 2017, pursuant to § 61-5-25.4 for calendar years 2018 and 2019, pursuant to § 61-5-25.5 for calendar year 2020 through calendar year 2023, and pursuant to § 61-5-25.6 for calendar year 2024 and each year thereafter, and the employer's investment fee rate must be the rate appearing in column "A" on the same line the employer's reserve ratio appears in column "B" of the following rate schedule:
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 must 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, must be deposited in the employer's investment in South Dakota's future 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 the payment 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; SL 2019, ch 217, § 4; SL 2023, ch 171, § 6.
61-5-29.1. Employer's investment in South Dakota's future fund--Purposes.
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. Moneys in the fund must be used for purposes related to research and economic development for the state.
Source: SL 1987, ch 387, § 6; SDCL § 61-5-24.2; SL 2012, ch 252, § 59; SL 2024, ch 206, § 1.
61-5-29.3. Employer's investment in South Dakota's future fund--Reporting requirements.
The Governor's Office of Economic Development shall report to either the Joint Committee on Appropriations or the Interim Committee on Appropriations on a biannual basis the following for each award or grant made from the fund:
(1) The name of the recipient and the amount of the award or grant;
(2) The location of the recipient;
(3) The research or economic development purpose being funded;
(4) The measures being used to determine the economic impact of the award or grant; and
(5) The number of jobs created or retained, if any.
Source: SL 2024, ch 206, § 2.
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.
61-5-33. 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.
61-5-34. 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 the receipt of reemployment assistance or 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; SL 2019, ch 216, § 13; SL 2020, ch 215, § 1, eff. Jul. 1, 2021.
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; SL 2020, ch 215, § 2, eff. Jul. 1, 2021.
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; SL 2020, ch 215, § 3, eff. Jul. 1, 2021.
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 may sue in the courts of South Dakota to recover any tax which may be owing to it for reemployment assistance or unemployment insurance contributions when the like right is accorded to the state of South Dakota by that state, whether the 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; SL 2019, ch 216, § 14.
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.
61-5A-1
Reimbursement by state of benefits paid--Share of extended benefits.
61-5A-2
Periodic billing of benefit costs to state--Amount.
61-5A-3, 61-5A-4. Repealed.
61-5A-5
Repealed.
61-5A-5.1
Election of political subdivision to make payments in lieu of contributions--Notice
of election.
61-5A-5.2
Election of political subdivisions becoming subject to title.
61-5A-6
Election by nonprofit organization to make payments in lieu of contributions--Minimum period of election.
61-5A-7
Election by newly covered nonprofit organization--Time and minimum period of
election.
61-5A-8
Continuation of nonprofit organization's or political subdivision's election until
terminated.
61-5A-9
Change by nonprofit organization or political subdivision from contribution to
reimbursement of benefits--Minimum period of election.
61-5A-9.1
Nonprofit organization not liable for reimbursed benefits paid to individuals with
previously uncovered service.
61-5A-10
Extension of time for election or termination--Retroactive election.
61-5A-11
Notice of department's determinations as to status of nonprofit organization or
political subdivision--Reconsideration, appeal, and review.
61-5A-12
Surety bond required of organization paying in lieu of contributions.
61-5A-13
Amount of surety bond.
61-5A-14
Duration of surety bond--Renewal.
61-5A-15
Adjustments in surety bond.
61-5A-16
Liability of surety on bond on failure of organization to pay.
61-5A-17
Termination of election to make payments in lieu of contributions on failure to file
bond--Extension of time for filing or adjustment.
61-5A-18
Amount of payments required in lieu of contributions.
61-5A-19
Apportionment of benefits chargeable between employers making contributions and
employers making payments in lieu of contributions.
61-5A-20
Apportionment of benefits chargeable between employers making payments in lieu
of contributions.
61-5A-21
Group account for employers making payments in lieu of contributions--Duration and
termination.
61-5A-22
Apportionment among group members of payments in lieu of contributions.
61-5A-23
Rules governing group accounts.
61-5A-24
Balance in previous experience-rating account used for benefits chargeable to
employer making payments in lieu of contributions.
61-5A-25
Method of making payments in lieu of contributions.
61-5A-26
Periodic billing of organization, subdivision, or group making payments in lieu of
contributions.
61-5A-27
Request for permission to make payment in lieu of contributions on basis of
percentage of payroll.
61-5A-28
Periodic billing for payments in lieu of contributions based on payroll--Percentages
applied.
61-5A-29
Annual adjustment of payroll percentages to minimize excess or insufficient
payments.
61-5A-1. Reimbursement by state of benefits paid--Share of extended benefits.
In lieu of contributions required by employers under this chapter, the State of South Dakota shall pay into the unemployment compensation trust fund an amount equivalent to the amount of benefits paid based on wages earned with the state plus, prior to December 31, 1978, one-half of the amount of extended benefits paid, and thereafter, the amount of extended benefits paid, to individuals based on wages paid by the state for service defined in § 61-1-13.
Source: SL 1971, ch 276, §§ 70, 71; SDCL Supp, § 61-5A-2; SL 1974, ch 327, § 1; SL 1977, ch 420, § 20; SL 2013, ch 258, § 15.
61-5A-2. Periodic billing of benefit costs to state--Amount.
Within fifteen days after the end of a calendar quarter or such other period as determined by the department, the department shall bill the state for an amount equal to the full amount of benefits including, prior to December 31, 1978, one-half of the amount of extended benefits, and thereafter, the amount of extended benefits, if any, paid during such quarter or other prescribed period that is attributable to service in the employ of the state.
Source: SL 1971, ch 276, § 71; SL 1974, ch 327, § 2; SL 1977, ch 420, § 21.
61-5A-3, 61-5A-4. Repealed by SL 1974, ch 327, § 3.
61-5A-5. Repealed by SL 1977, ch 420, § 38.
61-5A-5.1. Election of political subdivision to make payments in lieu of contributions--Notice of election.
Any political subdivisions of the state which are, or become, subject to this title on January 1, 1978, may elect to become liable for payments in lieu of contributions for a period of not less than two taxable years beginning with January 1, 1978, provided it files with the department a written notice of its election within the thirty-day period immediately following such date.
Source: SL 1977, ch 420, § 22.
61-5A-5.2. Election of political subdivisions becoming subject to title.
Any political subdivision which becomes subject to this title on or after January 1, 1978, may elect to become liable for payments in lieu of contributions for a period of not less than two calendar years beginning with the date on which such subjectivity begins by filing a written notice of its election with the department not later than thirty days immediately following the date of the determination of such subjectivity.
Source: SL 1977, ch 420, § 23.
61-5A-6. Election by nonprofit organization to make payments in lieu of contributions--Minimum period of election.
Any nonprofit organization which is, or becomes, subject to this title on January 1, 1972 may elect to become liable for payments in lieu of contributions for a period of not less than two taxable years beginning with January 1, 1972 provided it files with the department a written notice of its election within the thirty-day period immediately following such date.
Source: SL 1971, ch 276, § 52.
61-5A-7. Election by newly covered nonprofit organization--Time and minimum period of election.
Any nonprofit organization which becomes subject to this title after January 1, 1972 may elect to become liable for payments in lieu of contributions for a period of not less than two calendar years beginning with the date on which such subjectivity begins by filing a written notice of its election with the department not later than thirty days immediately following the date of the determination of such subjectivity.
Source: SL 1971, ch 276, § 53.
61-5A-8. Continuation of nonprofit organization's or political subdivision's election until terminated.
Any nonprofit organization which makes an election in accordance with § 61-5A-6 or 61-5A-7 or any political subdivision which makes an election in accordance with § 61-5A-5.2 will continue to be liable for payments in lieu of contributions until it files with the department a written notice terminating its election not later than thirty days prior to the beginning of the taxable year for which such termination shall first be effective.
Source: SL 1971, ch 276, § 54; SL 1977, ch 420, § 24.
61-5A-9. Change by nonprofit organization or political subdivision from contribution to reimbursement of benefits--Minimum period of election.
Any nonprofit organization or political subdivision which has been paying contributions under this title for a period subsequent to January 1, 1972 may change to a reimbursable basis by filing with the department not later than thirty days prior to the beginning of any taxable year a written notice of election to become liable for payments in lieu of contributions. Such election shall not be terminable by the organization for that and the next year.
Source: SL 1971, ch 276, § 55; SL 1977, ch 420, § 25.
61-5A-9.1. Nonprofit organization not liable for reimbursed benefits paid to individuals with previously uncovered service.
Any nonprofit organization which elects to make payments in lieu of contributions into the unemployment compensation fund as provided in § 61-5A-6, 61-5A-7 or 61-5A-9, is not liable to make such payments with respect to the benefits paid to any individual whose base period wages include wages for previously uncovered services as defined in § 61-6-7 to the extent that the unemployment compensation fund is reimbursed for such benefits pursuant to section 121 of Public Law 94-566 as passed October 23, 1976.
Source: SL 1977, ch 420, § 26; SL 2013, ch 258, § 16.
61-5A-10. Extension of time for election or termination--Retroactive election.
The department may for good cause extend the period within which a notice of election, or a notice of termination, must be filed and may permit an election to be retroactive but not any earlier than with respect to benefits paid after December 31, 1969.
Source: SL 1971, ch 276, § 56.
61-5A-11. Notice of department's determinations as to status of nonprofit organization or political subdivision--Reconsideration, appeal, and review.
The Department of Labor and Regulation shall notify each nonprofit organization or political subdivision of any determination which it may make of the organization's or political subdivision's status as an employer and of the effective date of any election which it makes and of any termination of election. Determinations are subject to reconsideration, appeal and review in accordance with chapter 61-7.
Source: SL 1971, ch 276, § 57; SL 1977, ch 420, § 27; SL 1983, ch 22, § 12; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-5A-12. Surety bond required of organization paying in lieu of contributions.
In the discretion of the department, any nonprofit organization or group of organizations that elects to become liable for payments in lieu of contributions shall be required within thirty days after the effective date of its election, to execute and file with the department a surety bond approved by the department.
Source: SL 1971, ch 276, § 66.
61-5A-13. Amount of surety bond.
The amount of the bond required by § 61-5A-12 is equal to the maximum effective tax rate times the organization's taxable wages paid for employment as defined in §§ 61-1-15 and 61-1-36 for the four calendar quarters immediately preceding the effective date of the election. If the nonprofit organization did not pay wages in each of such four calendar quarters, the amount of the bond shall be as determined by the department.
Source: SL 1971, ch 276, § 67; SL 1973, ch 307, § 1; SL 2013, ch 258, § 17.
61-5A-14. Duration of surety bond--Renewal.
Any bond deposited under § 61-5A-12 shall be in force for a period of not less than two taxable years and shall be renewed with the approval of the department, at such times as the department may prescribe, but not less frequently than at two-year intervals as long as the organization continues to be liable for payments in lieu of contributions.
Source: SL 1971, ch 276, § 68.
61-5A-15. Adjustments in surety bond.
The department shall require adjustments to be made in a previously filed bond as it deems appropriate. If the bond is to be increased, the adjusted bond shall be filed by the organization within thirty days of the date notice of the required adjustment was mailed or otherwise delivered to it.
Source: SL 1971, ch 276, § 68.
61-5A-16. Liability of surety on bond on failure of organization to pay.
Failure by any organization covered by a bond required by § 61-5A-12 to pay the full amount of payments in lieu of contributions when due, together with any applicable interest and penalties provided for in § 61-5A-33, shall render the surety liable on said bond to the extent of the bond, as though the surety was such organization.
Source: SL 1971, ch 276, § 68.
61-5A-17. Termination of election to make payments in lieu of contributions on failure to file bond--Extension of time for filing or adjustment.
If any nonprofit organization fails to file a bond or to file a bond in an increased amount as provided under §§ 61-5A-12 to 61-5A-16, inclusive, the department may terminate such organization's election to make payments in lieu of contributions and such termination shall continue for not less than the four-consecutive-calendar-quarter period beginning with the quarter in which such termination becomes effective; provided, that the department may extend for good cause the applicable filing or adjustment period by not more than thirty days.
Source: SL 1971, ch 276, § 69.
61-5A-18. Amount of payments required in lieu of contributions.
Each employer who is liable for payments in lieu of contributions shall pay to the department for the fund the amount of regular benefits plus, in the case of nonprofit organizations, the amount of one-half of extended benefits paid that are attributable to service in the employ of such employer, or, in the case of the state of South Dakota and political subdivisions, prior to December 31, 1978, the amount of one-half of the extended benefits paid and thereafter the amount of extended benefits paid that are attributable to service in the employ of such employer. If benefits paid to an individual are based on wages paid by more than one employer and one or more of such employers are liable for payments in lieu of contributions, the amount payable to the fund by each employer who is liable for such payments shall be determined in accordance with the provisions of §§ 61-5A-19 and 61-5A-20, except as provided in § 61-5A-2.
Source: SL 1971, ch 276, § 43; SL 1977, ch 420, § 28.
61-5A-19. Apportionment of benefits chargeable between employers making contributions and employers making payments in lieu of contributions.
If benefits paid to an individual are based on wages paid by one or more employers who are liable for payments in lieu of contributions and on wages paid by one or more employers who are liable for contributions, the amount of benefits payable by each employer who is liable for payments in lieu of contributions shall be an amount which bears the same ratio to the total benefits payable to the individual as the total base-period wages paid to the individual by such employer bear to the total base-period wages paid to the individual by all of his base-period employers.
Source: SL 1971, ch 276, § 44.
61-5A-20. Apportionment of benefits chargeable between employers making payments in lieu of contributions.
If benefits paid to an individual are based on wages paid by two or more employers who are liable for payments in lieu of contributions, the amount of benefits payable by each such employer shall be an amount which bears the same ratio to the total benefits payable to the individual as the total base-period wages paid to the individual by such employer bear to the total base-period wages paid to the individual by all of his base-period employers.
Source: SL 1971, ch 276, § 45.
61-5A-21. Group account for employers making payments in lieu of contributions--Duration and termination.
Two or more employers who have become liable for payments in lieu of contributions, in accordance with the provisions of §§ 61-5-32 and 61-5A-6 to 61-5A-9, inclusive, may file a joint application to the department for the establishment of a group account for the purpose of sharing the cost of benefits paid that are attributable to service in the employ of such employers. Each such application shall identify and authorize a group representative to act as the group's agent for the purposes of this section. Upon its approval of the application, the department shall establish a group account for such employers effective as of the beginning of the calendar quarter in which it receives the application and shall notify the group's representative of the effective date of the account. Such account shall remain in effect for not less than two years and thereafter until terminated at the discretion of the department or upon application by the group.
Source: SL 1971, ch 276, § 74; SL 2013, ch 258, § 18.
61-5A-22. Apportionment among group members of payments in lieu of contributions.
Upon establishment of the account, each member of the group shall be liable for payments in lieu of contributions with respect to each calendar quarter in the amount that bears the same ratio to the total benefits paid in such quarter that are attributable to service performed in the employ of all members of the group as the total wages paid for service in employment by such member in such quarter bear to the total wages paid during such quarter for service performed in the employ of all members of the group.
Source: SL 1971, ch 276, § 74.
61-5A-23. Rules governing group accounts.
The department may promulgate rules pursuant to chapter 1-26 governing applications for establishment, maintenance and termination of group accounts that are authorized by § 61-5A-21, for addition of new members to, and withdrawal of active members from, the accounts, and for the determination of the amounts that are payable under § 61-5A-22 by members of the group and the time and manner of such payments.
Source: SL 1971, ch 276, § 74; SL 1993, ch 375, § 31.
61-5A-24. Balance in previous experience-rating account used for benefits chargeable to employer making payments in lieu of contributions.
Notwithstanding any provisions in this chapter, any nonprofit organization that prior to January 1, 1969, paid contributions required by chapter 61-5, and, pursuant to § 61-5A-6 or 61-5A-7, elects within thirty days after the effective date of such section, to make payments in lieu of contributions, shall not be required to make any such payment on account of any regular or extended benefits paid, on the basis of wages paid by such organization to individuals for weeks of unemployment which begin on or after the effective date of such election until the total amount of such benefits equals the amount of the positive balance in the experience-rating account of such organization.
Source: SL 1971, ch 276, § 75.
61-5A-25. Method of making payments in lieu of contributions.
Payments in lieu of contributions shall be made in accordance with the provisions of §§ 61-5A-26 to 61-5A-29, inclusive.
Source: SL 1971, ch 276, § 58.
61-5A-26. Periodic billing of organization, subdivision, or group making payments in lieu of contributions.
At the end of each calendar quarter, or at the end of any other period as determined by the department, the department shall bill each nonprofit organization, political subdivision, or group of such organizations which has elected to make payments in lieu of contributions for an amount equal to the full amount of regular benefits plus, in the case of a nonprofit organization, one-half of the amount of extended benefits paid during such quarter or other prescribed period that is attributable to service in the employ of such organization or, in the case of a political subdivision, prior to December 31, 1978 one-half of the amount of extended benefits and thereafter the amount of extended benefits paid during such quarter or other prescribed period that is attributable to service in the competent employ of such organization.
Source: SL 1971, ch 276, § 59; SL 1977, ch 420, § 29.
61-5A-27. Request for permission to make payment in lieu of contributions on basis of percentage of payroll.
Each nonprofit organization that has elected payments in lieu of contributions may request permission to make such payments as provided in §§ 61-5A-28 and 61-5A-29. Such method of payment shall become effective upon approval by the department.
Source: SL 1971, ch 276, § 60.
61-5A-28. Periodic billing for payments in lieu of contributions based on payroll--Percentages applied.
At the end of each calendar quarter, or at the end of such other period as determined by the department, the department shall bill each nonprofit organization for an amount representing one of the following:
(1) For 1972, two-tenths of one percent of its total payroll for 1971 on a prorated basis;
(2) For years after 1972, such percentage of its total payroll for the immediately preceding calendar year as the department shall determine. Such determination shall be based each year on the average benefit costs attributable to service in the employ of nonprofit organizations during the preceding calendar year;
(3) For any organization which did not pay wages throughout the four calendar quarters of the preceding calendar year, such percentage of its payroll during such year as the department shall determine.
Source: SL 1971, ch 276, § 60.
61-5A-29. Annual adjustment of payroll percentages to minimize excess or insufficient payments.
At the end of each taxable year, the department may modify the quarterly percentage of payroll thereafter payable by the nonprofit organization in order to minimize excess or insufficient payments.
Source: SL 1971, ch 276, § 60.
61-5A-30. Redetermination of amount of payments billed to organization.
The amount due specified in any bill from the department shall be conclusive on the organization unless, not later than fifteen days after the bill was mailed to its last known address or otherwise delivered to it, the organization files an application for redetermination or an appeal to the department, setting forth the grounds for such application or appeal. The department shall promptly review and reconsider the amount due specified in the bill and shall thereafter issue a redetermination in any case in which such application for redetermination has been filed.
Source: SL 1971, ch 276, § 64.
61-5A-31. Time of payment of bill for payments in lieu of contributions.
Payment of any bill rendered under §§ 61-5A-26 to 61-5A-29, inclusive, shall be made not later than thirty days after such bill was mailed to the last known address of the nonprofit organization or was otherwise delivered to it, unless there has been an application for review and redetermination in accordance with § 61-5A-30.
Source: SL 1971, ch 276, § 62.
61-5A-32. Annual adjustment of payments in lieu of contributions--Payment of deficiency--Refund or retention of excess.
At the end of each taxable year, the department shall determine whether the total of payments for such year made by a nonprofit organization is less than, or in excess of, the total amount of regular benefits plus one-half of the amount of extended benefits paid to individuals during such taxable year based on wages attributable to service in the employ of such organization. Each nonprofit organization whose total payments for such year are less than the amount so determined shall be liable for payment of the unpaid balance to the fund in accordance with § 61-5A-31. If the total payments exceed the amount so determined for the taxable year, all or a part of the excess, may, at the discretion of the department, be refunded from the fund or retained in the fund as part of the payments which may be required for the next taxable year.
Source: SL 1971, ch 276, § 61.
61-5A-33. Interest and penalties on past due payments in lieu of contributions.
Past due payments of amounts in lieu of contributions or failure to make timely reports shall be subject to the same interest and penalties that apply to past due contributions and reports in §§ 61-5-57 and 61-5-58.
Source: SL 1971, ch 276, § 65; SL 2013, ch 258, § 19.
61-5A-34. Payments in lieu of contributions not to be deducted from wages.
Payments made by any nonprofit organization or political subdivision under the provisions of §§ 61-5A-25 to 61-5A-33, inclusive, shall not be deducted or deductible, in whole or in part, from the remuneration of individuals in the employ of the organization or political subdivision.
Source: SL 1971, ch 276, § 63; SL 1977, ch 420, § 30.
CHAPTER 61-6
REEMPLOYMENT ASSISTANCE BENEFITS
61-6-1 Requirements for eligibility for benefits during week.
61-6-1.1 Repealed by SL 1991, ch 414, § 2.
61-6-1.2 Transferred to §§ 61-6-24, 61-6-25 by SL 2012, ch 252, § 59.
61-6-1.4 Transferred to § 61-6-30 by SL 2012, ch 252, § 59.
61-6-1.5 Transferred to § 61-6-34 by SL 2012, ch 252, § 59.
61-6-1.6 Transferred to § 61-6-26 by SL 2012, ch 252, § 59.
61-6-1.7 Transferred to § 61-6-28 by SL 2012, ch 252, § 59.
61-6-1.8 Repealed by SL 1990, ch 415, § 4.
61-6-1.9 Transferred to § 61-6-33 by SL 2012, ch 252, § 59.
61-6-1.10 Transferred to § 61-6-13 by SL 2012, ch 252, § 59.
61-6-2 Computation of weekly benefit amount.
61-6-3 Repealed by SL 1993, § 10.
61-6-4 Minimum base period and highest quarter wages required for benefits.
61-6-5 Benefits payable for each week of unemployment--Reduction for wages earned or received during week.
61-6-6 Eligibility requirements for waiting period.
61-6-7 Wages for insured work.
61-6-8 Maximum benefit amount based on base period wages--Trade readjustment payments.
61-6-9 Voluntary separation without good cause--Additional claims during benefit year--Trade readjustment payments.
61-6-9.1 Good cause for voluntarily leaving employment restricted to certain situations.
61-6-10 Repealed by SL 1971, ch 276, § 93.
61-6-11 Repealed by SL 1983, ch 22, § 13.
61-6-12 Repealed by SL 1993, ch 377, § 11.
61-6-13 Benefits denied to persons employed while incarcerated--Reemployment.
61-6-13.1 Transferred to § 61-6-9.1 by SL 2012, ch 252, § 59.
61-6-14 Separation for misconduct--Additional claims during benefit year.
61-6-14.1 Misconduct defined.
61-6-15 Benefits not payable for unemployment due to labor dispute--Exceptions.
61-6-15.1 Transferred to § 61-6-21 by SL 2012, ch 252, § 59.
61-6-15.2 Transferred to § 61-6-20 by SL 2012, ch 252, § 59.
61-6-15.3 Transferred to §§ 61-6-22, 61-6-23 by SL 2012, ch 252, § 59.
61-6-16 Failure to seek or accept suitable employment.
61-6-17 Factors considered in determining suitability of offered employment.
61-6-18 Repealed by SL 1979, ch 348, §§ 7, 8.
61-6-19 Work deemed unsuitable due to labor dispute, unfavorable working conditions, or requirement as to union membership.
61-6-20 Student may not receive benefits.
61-6-21 Benefits payable to individual in approved training program--Rules establishing conditions for approval of training.
61-6-22 61-6-22. Repealed by SL 2014, ch 250, §§ 1, 2, eff. Feb. 1, 2015.
61-6-23 Benefits for individuals seeking only part-time work.
61-6-23.1 Transferred to § 61-6-42 by SL 2012, ch 252, § 59.
61-6-23.2 Transferred to § 61-6-45 by SL 2012, ch 252, § 59.
61-6-23.3 Transferred to §§ 61-6-43, 61-6-44 by SL 2012, ch 252, § 59.
61-6-24 Benefits based on employment by state or instrumentalities or by religious, charitable, or educational organization--Exception.
61-6-24.1 Transferred to § 61-6-40 by SL 2012, ch 252, § 59.
61-6-25 Benefits not paid employees of educational institutions for services between successive academic years--Grounds for retroactive payments.
61-6-26 Benefits not paid for established vacation period or holiday recess preceded and followed by insured work.
61-6-27 61-6-27. Repealed by SL 2008, ch 277, § 134.
61-6-28 Application of provisions as to periods between academic years, sabbatical leaves, and vacation and holiday periods to certain employment.
61-6-29 Employee working for an employer under contract with a public or private school.
61-6-30 Benefits not paid for participation in sports or athletic events between successive seasons.
61-6-31 Repealed by SL 1982, ch 369, §§ 1, 2.
61-6-33 Federal school employees not disqualified.
61-6-34 Benefits not paid to aliens--Exceptions--Determination of alien status.
61-6-35 Benefits not payable for week in which other compensation received.
61-6-36 Benefits prohibited in more than one benefit year as the result of one separation from work.
61-6-37 Benefits not payable when benefits sought under other unemployment compensation law--Determination of ineligibility under other law.
61-6-38 Misrepresentation to increase benefits unlawful.
61-6-38.1 Transferred to §§ 61-6-57 to 61-6-59 by SL 2012, ch 252, § 59.
61-6-39 Denial of benefits from discovery of misrepresentation--Penalties.
61-6-40 Obtaining or attempting to obtain benefits by misrepresentation as misdemeanor or felony--Aggregation of benefits obtained to determine degree of offense.
61-6-41 Deduction or repayment of overpayments.
61-6-42 Waiver of right to recover overpayment.
61-6-43 Collection or deduction of overpayments by another state.
61-6-44 Interest on benefit not repaid--Interest paid into employment security contingency fund.
61-6-45 Cancellation of uncollectible overpayments.
61-6-46 Benefits restricted to amount in the unemployment compensation fund.
61-6-47 Waiver of rights and benefits prohibited--Violation as misdemeanor.
61-6-48 Assignment of benefits void--Exemption from process--Waiver of exemption void--Information furnished to Department of Social Services--Disclosure of obligations by applicant--Deductions--Reimbursement of costs.
61-6-49 Extended benefits--Definition of terms.
61-6-50 Computation of unemployment rate to follow federal regulations.
61-6-51 Determination of state "on" indicator.
61-6-52 Determination of state "off" indicator.
61-6-53 Minimum period between extended benefit periods.
61-6-54 Public announcement of commencement or termination of extended benefit period.
61-6-55 Extended benefits limited to exhaustees--Eligibility for regular benefits.
61-6-56 Exhaustee defined.
61-6-57 Qualification for extended benefits despite receipt of more payments after appeal--Seasonal workers--Disqualified applicants for regular benefits.
61-6-58 Qualification for extended benefits on termination of regular benefit year.
61-6-59 Applicable benefit year defined.
61-6-60 Amount of weekly extended benefit--Reduction.
61-6-61 Maximum extended benefits payable in year--Reduction of total extended benefit amount.
61-6-62 Extended benefits not chargeable to employer.
61-6-63 Claims for and payment of extended benefits.
61-6-64 Administration of extended benefits to conform to federal requirements.
61-6-65 Interstate claims--Eligibility for extended benefits.
61-6-66 Disqualification for extended benefits on failure to seek or accept suitable work--Exception.
61-6-67 Voluntary withholding of federal income tax from benefit payments.
61-6-68 Eligibility verification--Information sharing.
61-6-1. Requirements for eligibility for benefits during week.
An unemployed individual is eligible to receive benefits with respect to any week only if the department finds that:
(1) The individual has registered for work at and thereafter has continued to report at an employment office in accordance with rules promulgated by the department pursuant to chapter 1-26. However, that the department may, by rule, waive or alter either or both of the requirements of this subdivision as to individuals attached to regular jobs and as to such other types of cases or situations with respect to which the department finds that compliance with the requirements would be oppressive, or would be inconsistent with the purposes of this title. No such rule may conflict with this chapter;
(2) The individual has made a claim for benefits in accordance with the provisions of § 61-7-1;
(3) The individual is able to work and is available for work in accordance with rules promulgated by the department pursuant to chapter 1-26;
(4) Prior to any week for which the individual claims benefits the individual has been unemployed for a waiting period of one week; and
(5) The individual has, during the individual's base period, earned wages for insured work equal to not less than the minimum amount required for benefit entitlement in § 61-6-4.
Source: SL 1936 (SS), ch 3, § 4; SL 1937, ch 224, § 2; SDC 1939, § 17.0829; SL 1939, ch 86, § 6; SL 1941, ch 83, § 8; SL 1943, ch 83, § 1; SL 1947, ch 88, § 10; SL 1951, ch 94, § 7; SL 1973, ch 308, § 1; SL 1993, ch 375, § 32; SL 2008, ch 277, § 114; SDCL § 61-6-2; SL 2012, ch 252, § 59; SL 2020, ch 215, § 4, eff. Jul. 1, 2021.
61-6-1.1. Repealed by SL 1991, ch 414, § 2.
61-6-1.8. Repealed by SL 1990, ch 415, § 4.
61-6-2. Computation of weekly benefit amount.
An individual's weekly benefit amount is computed as follows:
For each fiscal year, one twenty-sixth of the wages paid for insured work in the individual's quarter of highest earnings in the individual's base period, but not to exceed an amount equal to fifty percent of the average weekly wage in covered employment in South Dakota for the calendar year preceding that fiscal year. An amount so computed that is not a multiple of one dollar is lowered to the next lower multiple of one dollar.
The average weekly wage in covered employment in South Dakota is computed by dividing the sum of the total wages in covered employment, as reported to the department for the preceding calendar year, by the average number of workers in covered employment, and dividing the result thus obtained by fifty-two.
Source: SDC 1939, § 17.0828 (2) (b) as added by SL 1939, ch 86, § 5; SDC 1939, § 17.0828 (2) (a) as enacted by SL 1941, ch 83, § 7; SL 1943, ch 82, § 1; SL 1945, ch 78, § 3; SL 1947, ch 90, § 1; SL 1951, ch 97, § 1; SL 1953, ch 79; SL 1957, ch 88, § 1; SL 1959, ch 101; SL 1963, ch 124; SL 1965, ch 100; SL 1967, ch 77; SL 1968, ch 92; SL 1970, ch 276; SL 1972, ch 269, §§ 1 to 3; SL 1973, ch 308, § 2; SL 1974, ch 330; SL 1975, ch 318; SL 1981, ch 371, § 1; SL 1982, ch 373, § 1; SL 1983, ch 379, §§ 3, 4; SL 1984, ch 338; SL 1987, ch 387, § 7; SL 1991, ch 416, § 5; SL 1993, ch 378, § 6; SL 2008, ch 277, § 116; SDCL § 61-6-6; SL 2012, ch 252, § 59.
61-6-3. Repealed by SL 1993, § 10.
61-6-4. Minimum base period and highest quarter wages required for benefits.
No individual is entitled to benefits unless the individual's base period wages paid in other than the individual's highest quarter equal or exceed twenty times the individual's weekly benefit amount, and unless the wages paid for insured work in the individual's quarter of highest earnings in the individual's base period equal or exceed seven hundred twenty-eight dollars.
Source: SDC 1939, § 17.0828 (2) (c) as added by SL 1939, ch 86, § 5; SDC 1939, § 17.0828 (2) (b) as enacted by SL 1941, ch 83, § 7; SL 1943, ch 82, § 1; SL 1947, ch 90, § 1; SL 1951, ch 97, § 1; SL 1953, ch 76, § 5; SL 1957, ch 88, § 2; SL 1964, ch 69; SL 1965, ch 100; SL 1972, ch 269, § 4; SL 1973, ch 308, § 3; SL 1979, ch 348, § 6; SL 1981, ch 371, § 2; SL 1985, ch 396, § 3; SL 1992, ch 362; SL 2008, ch 277, § 117; SDCL § 61-6-7; SL 2012, ch 252, § 59.
61-6-5. Benefits payable for each week of unemployment--Reduction for wages earned or received during week.
For each individual who is unemployed in any week, as defined in §§ 61-1-51 to 61-1-54, inclusive, benefits with respect to that week are paid in an amount determined by § 61-6-2. A benefit amount that is not a multiple of one dollar, is computed to the next lower multiple of one dollar. However, the benefit paid is reduced by seventy-five percent of the amount by which the wages or earnings exceed twenty-five dollars per week, and no benefit payment is made if the wages or earnings equal or exceed the weekly benefit amount.
Source: SDC 1939, § 17.0828 (3) (b) as added by SL 1939, ch 86, § 5; SDC 1939, § 17.0828 (3) as enacted by SL 1941, ch 83, § 7; SL 1943, ch 82, § 1; SL 1947, ch 90, § 1; SL 1951, ch 97, § 1; SL 1953, ch 76, § 5; SL 1957, ch 88, § 3; SL 1963, ch 122, § 2; SL 1979, ch 348, § 2A; SL 1983, ch 379, § 2; SL 1984, ch 333, § 2; SL 1990, ch 414, § 1; SDCL § 61-6-1; SL 2012, ch 252, § 59.
61-6-6. Eligibility requirements for waiting period.
No week may be counted as a week of unemployment for the purpose of subdivision 61-6-1(4):
(1) Unless it occurs within the benefit year which includes the week with respect to which the individual claims benefits;
(2) If benefits have been paid with respect thereto; and
(3) Unless the individual was eligible for benefits with respect thereto.
Source: SL 1936 (SS), ch 3, § 4; SL 1937, ch 224, § 2; SDC 1939, § 17.0829 (4); SL 1939, ch 86, § 6; SL 1941, ch 83, § 8; SL 1943, ch 83, § 1; SL 2005, ch 279, § 2; SDCL § 61-6-4; SL 2012, ch 252, § 59.
61-6-7. Wages for insured work.
For the purpose of subdivision 61-6-1 (5), wages shall be counted as wages for insured work for benefit purposes with respect to any benefit year only if the benefit year begins subsequent to the date on which the employer from whom the wages were earned has satisfied the conditions of §§ 61-1-4 to 61-1-9, inclusive, or §§ 61-5-3 to 61-5-5, inclusive, and §§ 61-5-32 and 61-5-33, with respect to becoming an employer.
Source: SDC 1939, § 17.0829 (6) as added by SL 1939, ch 86, § 6; SL 1941, ch 83, § 8; SL 1947, ch 88, § 10; SDC Supp 1960, § 17.0829 (5); SL 1977, ch 420, § 35; SL 2008, ch 277, § 115; SDCL § 61-6-5; SL 2012, ch 252, § 59.
61-6-8. Maximum benefit amount based on base period wages--Trade readjustment payments.
Unless the provisions of §§ 61-6-49 to 61-6-64, inclusive, apply, an individual's maximum benefit amount is an amount equal to one-third of the individual's total base period wages in covered employment not to exceed twenty-six times the individual's weekly benefit amount. If that amount is not a multiple of one dollar, it is lowered to the next lower multiple of one dollar.
Trade readjustment payments may allow an individual to receive benefits in excess of twenty-six weeks if the individual is in training approved by the secretary under the Trade Act of 1974, as amended by section 2501 of P.L. 97-35--August 13, 1981, and then only as long as necessary to complete the training.
If the benefit year of an individual ends within an extended benefit period, the number of weeks of extended benefits that the individual would, but for this section, be entitled to in that extended benefit period is reduced by the number of weeks for which the individual received any amounts as trade readjustment allowances within that benefit year, multiplied by the individual's weekly benefit amount for extended benefits.
Source: SDC 1939, § 17.0828 (6) as added by SL 1941, ch 83, § 7; SL 1943, ch 82, § 1; SL 1945, ch 78, § 3; SL 1947, ch 90, § 1; SL 1951, ch 97, § 1; SDC Supp 1960, § 17.0828 (5); SL 1973, ch 308, § 4; SL 1982, ch 369, § 10; SL 1983, ch 379, § 5; SL 2008, ch 277, § 118; SL 2013, ch 258, § 20.
61-6-9. Voluntary separation without good cause--Additional claims during benefit year--Trade readjustment payments.
An unemployed individual who, voluntarily without good cause, left the most recent employment of an employer or employing unit, after employment lasting at least thirty calendar days is denied benefits until the individual has been reemployed at least six calendar weeks in insured employment during the individual's current benefit year and has earned wages of not less than the individual's weekly benefit amount in each of those six weeks.
If additional claims are filed by a claimant during a benefit year after employment, the thirty calendar day requirement does not apply in determining disqualifications.
No individual who is eligible for trade readjustment payments under the Trade Act of 1974, as amended by section 2501 of P.L. 97-35--August 13, 1981, may be denied benefits for leaving work to enter training approved by the secretary if the work the individual left is not suitable employment or because of the application of provisions of §§ 61-6-1 and 61-6-16. For purposes of this section, suitable employment, means work of a substantially equal or higher skill level than the individual's past adversely-affected employment, with wages for that work at not less than eighty percent of the individual's average weekly wage.
Source: SL 1936 (SS), ch 3, § 5; SDC 1939, § 17.0830 (1); SL 1939, ch 89; SL 1943, ch 84; SL 1947, ch 89, § 2; SL 1955, ch 62; SL 1963, ch 126, § 1; SL 1975, ch 319, § 1; SL 1976, ch 321, § 1; SL 1979, ch 348, § 3; SL 1982, ch 369, § 11; SL 2008, ch 277, § 120; SDCL § 61-6-13; SL 2012, ch 252, § 59.
61-6-9.1. Good cause for voluntarily leaving employment restricted to certain situations.
Good cause for voluntarily leaving employment is restricted to leaving employment because:
(1) Continued employment presents a hazard to the employee's health. However, this subdivision applies only if:
(a) Before separation from the employment, the employee is examined by a licensed practitioner of the healing arts, as defined in chapter 36-4, 36-4A, or 36-5 or subdivision 36-9A-1(5), and advised that continued employment presents a hazard to the employee's health; and
(b) The health hazard is supported by a certificate signed by the licensed practitioner of the healing arts.
The secretary of labor and regulation may request an additional certificate signed by another licensed practitioner of the healing arts, as defined in chapter 36-4, 36-4A, or 36-5 or subdivision 36-9A-1(5);
(2) The employer required the employee to relocate the employee's residence to hold the employee's job;
(3) The employer's conduct demonstrates a substantial disregard of the standards of behavior that the employee has a right to expect of an employer or the employer has breached or substantially altered the contract for employment;
(4) An individual accepted employment while on lay off and subsequently quit the employment to return to work for the individual's regular employer;
(5) The employee's religious belief mandates it. This provision does not apply, however, if the employer has offered to the employee reasonable accommodations taking into consideration the employee's religious beliefs if this offer is made before the employee leaves the employment;
(6) Leaving is necessary to protect the individual from domestic abuse. However, this subdivision applies only if:
(a) The employee reports the abusive situation to law enforcement within forty-eight hours of any occurrence and cooperates fully with law enforcement in any subsequent investigation and criminal charge relating to the abusive situation. Upon request by the department, the law enforcement agency shall complete and return to the department a certification form indicating whether the employee has complied with the requirements of this subdivision;
(b) The employee has left the abusive situation and remains separate from the situation; and
(c) The employee made reasonable efforts to preserve the employment before quitting;
(7) The employee is relocating to accompany a spouse who has been reassigned from one military assignment to another; or
(8) The employee is an officer who exercises substantial control in decisions to take or not to take action on behalf of a corporation and has no other alternative than to leave employment with that corporation. This does not preclude a corporate officer who does not exercise substantial control in any decision to take or not take action on behalf of a corporation from being found to have good cause to leave employment under the circumstances set out in subdivisions (1) to (7), inclusive.
Any person found to have good cause for leaving employment due to domestic abuse as set forth in subdivision (6) and who returns to the abusive situation is ineligible for benefits.
Source: SDCL § 61-6-13 as added by SL 1979, ch 348, § 3; SL 1981, ch 371, § 3; SL 1986, ch 424, § 3; SL 1987, ch 388, § 3; SL 1989, ch 449, § 1; SL 2003, ch 258, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-6-13.1; SL 2012, ch 252, § 59; SL 2012, ch 253, § 1; SL 2014, ch 249, § 1; SL 2017, ch 218, § 1, eff. Feb. 9, 2017.
61-6-10. Repealed by SL 1971, ch 276, § 93.
61-6-11. Repealed by SL 1983, ch 22, § 13.
61-6-12. Repealed by SL 1993, ch 377, § 11.
61-6-13. Benefits denied to persons employed while incarcerated--Reemployment.
An unemployed individual who was last employed, the employment being at least thirty calendar days in duration, while incarcerated in a custodial or penal institution, and terminated from the employment because of transfer or release from the institution, is denied benefits until the individual has been reemployed at least six calendar weeks in insured employment during the individual's current benefit year and has earned wages of not less than the individual's weekly benefit amount in each of those six weeks.
Source: SL 1991, ch 413, § 4; SL 2008, ch 277, § 113; SDCL § 61-6-1.10; SL 2012, ch 252, § 59.
61-6-14. Separation for misconduct--Additional claims during benefit year.
An unemployed individual who was discharged or suspended from the individual's most recent employment, the employment being at least thirty calendar days in duration for misconduct connected with the individual's work shall be denied benefits until the individual has been reemployed at least six calendar weeks in insured employment during the individual's current benefit year and earned wages of not less than the individual's weekly benefit amount in each of those six weeks. If additional claims are filed by a claimant during a benefit year subsequent to employment, the thirty calendar day requirement may not be applied in determining disqualifications.
Source: SL 1936 (SS), ch 3, § 5; SDC 1939, § 17.0830 (2); SL 1939, ch 89; SL 1943, ch 84; SL 1947, ch 89, § 2; SL 1951, ch 94, § 9; SL 1955, ch 62; SL 1963, ch 126, § 2; SL 1975, ch 319, § 2; SL 1976, ch 321, § 2; SL 1979, ch 348, § 4; SL 2008, ch 277, § 121.
61-6-14.1. Misconduct defined.
As used in this chapter, misconduct is:
(1) Failure to obey orders, rules, or instructions, or failure to discharge the duties for which an individual was employed; or
(2) Substantial disregard of the employer's interests or of the employee's duties and obligations to the employer; or
(3) Conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee; or
(4) Carelessness or negligence of such degree or recurrence as to manifest equal culpability or wrongful intent.
However, mere inefficiency, unsatisfactory conduct, failure to perform as the result of inability or incapacity, a good faith error in judgment or discretion, or conduct mandated by a religious belief which belief cannot be reasonably accommodated by the employer is not misconduct.
Source: SL 1984, ch 337; SL 1989, ch 449, § 2; SL 1992, ch 363, § 1; SL 2008, ch 277, § 122.
61-6-15. Benefits not payable for unemployment due to labor dispute--Exceptions.
An individual is not entitled to any benefits for any week with respect to which the secretary finds that the individual's total or partial unemployment is due to a labor dispute at the factory, establishment, or other premises at which the individual is or was last employed. However, this section does not apply if it is shown to the satisfaction of the department that:
(1) The individual is not participating in or financing or directly interested in the labor dispute; and
(2) The individual does not belong to a grade or class of workers of which, immediately before the commencement of the dispute, there were members employed at the premises at which the dispute occurs, any of whom are participating in or financing or directly interested in the dispute;
(3) The individual is locked out by the individual's employer.
If in any case separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each department shall, for the purpose of this section, be considered a separate factory, establishment, or other premises.
Source: SL 1936 (SS), ch 3, § 5; SDC 1939, § 17.0830(4); SL 1939, ch 89; SL 1943, ch 84; SL 1975, ch 320; SL 1986, ch 424, § 4; SL 2008, ch 277, § 127; SDCL § 61-6-19; SL 2012, ch 252, § 59.
61-6-16. Failure to seek or accept suitable employment.
If the Department of Labor and Regulation finds that an unemployed individual has failed, without good cause, either to apply for available suitable work when so directed by the department or to accept suitable work when offered to the individual, the claimant shall be denied benefits, including extended benefits, until the individual has been reemployed at least six calendar weeks in insured employment during the individual's current benefit year and earned wages of not less than the individual's weekly benefit amount in each of those six weeks. The department may promulgate rules pursuant to chapter 1-26 for determining suitable work.
Source: SL 1936 (SS), ch 3, § 5; SDC 1939, § 17.0830 (3); SL 1939, ch 89; SL 1943, ch 84; SL 1947, ch 88, § 11; SL 1947, ch 89, § 2; SL 1955, ch 62; SL 1971, ch 276, § 77; SL 1979, ch 348, § 5; SL 1983, ch 22, § 14; SL 1993, ch 375, § 33; SL 2008, ch 277, § 123; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-6-15; SL 2012, ch 252, § 59.
61-6-17. Factors considered in determining suitability of offered employment.
In determining whether or not any work is suitable for an individual, the department shall consider the degree of risk involved to the individual's health, safety, and morals, the individual's physical fitness and prior training, the individual's experience and prior earnings, the individual's length of unemployment and prospects for securing local work in the individual's customary occupation, and the distance of the available work from the individual's residence.
Source: SL 1936 (SS), ch 3, § 5; SDC 1939, § 17.0830 (3) (a); SL 1939, ch 89; SL 1943, ch 84; SL 1955, ch 62; SL 2008, ch 277, § 125; SDCL § 61-6-16; SL 2012, ch 252, § 59.
61-6-18, 61-6-18.1. Repealed by SL 1979, ch 348, §§ 7, 8.
61-6-19. Work deemed unsuitable due to labor dispute, unfavorable working conditions, or requirement as to union membership.
Notwithstanding any other provisions of this title, no work is deemed suitable and no benefits may be denied under this title to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
(1) If the position offered is vacant due directly to a strike, lockout, or other labor dispute;
(2) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;
(3) If, as a condition of being employed, the individual would be required to join or to resign from or refrain from joining any labor organization.
Source: SL 1936 (SS), ch 3, § 5; SDC 1939, § 17.0830 (3) (b); SL 1939, ch 89; SL 1943, ch 84; SL 1955, ch 62; SL 2008, ch 277, § 126; SDCL § 61-6-17; SL 2012, ch 252, § 59.
61-6-20. Student may not receive benefits.
A person attending a high school, vocational school, college or university is considered principally occupied as a student if school attendance substantially reduces the opportunity for reemployment. A person who is principally occupied as a student may not receive reemployment assistance benefits.
Source: SL 1983, ch 22, § 19; SDCL § 61-6-15.2; SL 2012, ch 252, § 59; SL 2019, ch 216, § 15.
61-6-21. Benefits payable to individual in approved training program--Rules establishing conditions for approval of training.
Notwithstanding any other provisions in this chapter, no otherwise eligible individual may be denied benefits for any week because the individual is in training with the approval of the department, nor may any such individual be denied benefits with respect to any week in which the individual is in training with the approval of the department by reason of the application of provisions in § 61-6-1 relating to availability for work, or the provisions of § 61-6-16 relating to failure to apply for, or to accept, suitable work. The department shall promulgate rules pursuant to chapter 1-26 establishing the conditions for approval of training.
Source: SL 1971, ch 276, § 78; SL 1993, ch 375, § 34; SL 2008, ch 277, § 124; SDCL § 61-6-15.1; SL 2012, ch 252, § 59.
61-6-23. Benefits for individuals seeking only part-time work.
No individual may be denied regular benefits based on availability for work pursuant to subdivision 61-6-1(3), actively seeking work pursuant to rules promulgated pursuant to § 61-6-1, or refusal to accept work pursuant to § 61-6-16, solely because the individual is seeking only part-time work, if the department determines that a majority of the weeks of work in the individual's base period were for less than full-time work. For purposes of this section, seeking only part-time work, means seeking work that has comparable hours to the individual's part-time work experience in the individual's base period.
Source: SL 2010, ch 248, § 1; SDCL § 61-6-15.4; SL 2012, ch 252, § 59.
61-6-24. Benefits based on employment by state or instrumentalities or by religious, charitable, or educational organization--Exception.
Benefits based on service in employment defined in §§ 61-1-13 and 61-1-15 shall be payable in the same amount, on the same terms and subject to the same conditions as benefits payable on the basis of other service subject to this chapter. However, with respect to service performed in an instructional, research, or principal administrative capacity for an educational institution, no benefits may be paid based on the services for any week of unemployment commencing during the period between two successive academic years, or during a similar period between two regular but not successive terms or during a period of paid sabbatical leave provided for in the individual's contract, to any individual if the individual performs the services in the first of the academic years or terms and if there is a contract or a reasonable assurance that the individual will perform services in any such capacity for any educational institution in the second of the academic years or terms.
Source: SL 1977, ch 420, § 31; SL 2008, ch 277, § 108; SDCL § 61-6-1.2; SL 2012, ch 252, § 59.
61-6-25. Benefits not paid employees of educational institutions for services between successive academic years--Grounds for retroactive payments.
With respect to services performed in any other capacity for an educational institution, no benefits may be paid to an individual on the basis of the individual's services for any week that commences between two successive academic years or terms if the individual performs the services in the first academic year or term and there is a reasonable assurance that the individual will perform the services in the second one. If an individual was denied compensation for any week, in accordance with this section, and is not offered an opportunity to perform services for the educational institution in the second academic year or term, that individual is entitled to a retroactive compensation payment for each week that the individual filed a timely claim and was denied compensation solely by reason of this section.
Source: SL 1977, ch 420, § 32; SL 1983, ch 384, § 1; SL 2008, ch 277, § 109; SDCL § 61-6-1.3; SL 2012, ch 252, § 59.
61-6-26. Benefits not paid for established vacation period or holiday recess preceded and followed by insured work.
No benefits authorized by § 61-6-24 or 61-6-25 may be paid to an individual for any week which commences during an established and customary vacation period or a holiday recess if the individual performed insured work in the period immediately preceding the period or recess and there is reasonable assurance that the individual will perform insured work in the period immediately following the period or recess.
Source: SL 1979, ch 348, § 12; SL 1991, ch 414, § 4; SL 2008, ch 277, § 112; SDCL § 61-6-1.6; SL 2012, ch 252, § 59.
61-6-28. Application of provisions as to periods between academic years, sabbatical leaves, and vacation and holiday periods to certain employment.
The provisions of §§ 61-6-24 to 61-6-26, inclusive, apply to benefits based on service performed in an education institution while in the employ of an education service agency and to benefits based on service in employment defined in §§ 61-1-13 and 61-1-15 provided to or on behalf of an education institution.
Source: SDCL § 61-6-1 as added by SL 1984, ch 333, § 2; SDCL § 61-6-1.7; SL 2012, ch 252, § 59.
61-6-29. Employee working for an employer under contract with a public or private school.
Benefits based upon services performed for an employer are subject to §§ 61-6-24 and 61-6-25 if:
(1) The employment was provided pursuant to a contract between the employer and a public or private school;
(2) The contract was for services which the public or private school could have had performed by its employees; and
(3) The individual is notified in writing of the provisions of this section while employed in 1994 or prior to the commencement of employment.
Source: SL 1994, ch 393; SDCL § 61-6-46; SL 2012, ch 252, § 59.
61-6-30. Benefits not paid for participation in sports or athletic events between successive seasons.
No benefits may be paid to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sport seasons or similar periods if the individual performed the services in the first of the seasons or similar periods and there is a reasonable assurance that the individual will perform the services in the later of the seasons or similar periods.
Source: SL 1977, ch 420, § 33; SL 2008, ch 277, § 110; SDCL § 61-6-1.4; SL 2012, ch 252, § 59.
61-6-31, 61-6-32. Repealed by SL 1982, ch 369, §§ 1, 2.
61-6-33. Federal school employees not disqualified.
The exception in §§ 61-6-24 and 61-6-25 that disqualifies an individual because the individual performs services in an educational institution does not disqualify an individual who is in the employ of an elementary or secondary school operated by the federal government or an agency of the federal government.
Source: SL 1990, ch 415, § 1; SDCL § 61-6-1.9; SL 2012, ch 252, § 59.
61-6-34. Benefits not paid to aliens--Exceptions--Determination of alien status.
No benefits may be paid on the basis of services performed by an alien unless the alien is an individual who was lawfully admitted for permanent residence at the time the services were performed, was lawfully present for purposes of performing the services, or was permanently residing in the United States under color of law at the time the service was performed, including an alien who is lawfully present in the United States as a result of the application of the provisions of section 203(a)(7) or section 212(d)(5) of the Immigration and Nationality Act as amended as of January 1, 1990. Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits. In the case of an individual whose application for benefits would otherwise be approved, no determination that benefits to the individual are not payable because of the individual's alien status may be made except upon a preponderance of the evidence.
Source: SL 1977, ch 420, § 34; SL 1990, ch 414, § 2; SL 2008, ch 277, § 111; SDCL § 61-6-1.5; SL 2012, ch 252, § 59.
61-6-35. Benefits not payable for week in which other compensation received.
No individual is entitled to any benefits for a week for which the individual is receiving, has received, or will receive remuneration in the form of:
(1) Termination, vacation, holiday, severance, or dismissal payments or wages in lieu of notice whether legally required or not. However, in the case of lump sum termination, vacation, holiday, severance, or dismissal payments, the lump sum payment shall be allocated over a period of weeks equal to the lump sum divided by the employee's regular pay while employed. However, the payment shall be applied for a period of weeks immediately following the last day of work. Payments made to an individual based entirely on the individual's contributions to a fund from which the payments are made are not vacation pay;
(2) Compensation for temporary partial disability under the workers' compensation law of any state or under a similar law of the United States; or
(3) The prorated weekly amount of any pension, annuity or retirement payment including disability pension payments, based on the previous work of the individual. This subdivision applies only to payments made under a plan contributed to by a base period employer. This does not apply to payments made under Title II of the Social Security Act or the Railroad Retirement Act of 1974, to military service-connected disability payments or to that part, if any, of a pension, annuity or retirement payment that is attributable to contributions of the individual.
If the remuneration is less than the benefits which would otherwise be due under this chapter, the individual shall receive for the week, if otherwise eligible, benefits reduced by the amount of the remuneration.
Source: SL 1936 (SS), ch 3, § 5; SDC 1939, § 17.0830 (5); SL 1939, ch 89; SL 1943, ch 84; SL 1951, ch 94, § 10; SL 1978, ch 369; SL 1979, ch 348, § 9; SL 1980, ch 363, § 1; SL 1981, ch 371, § 4; SL 1983, ch 22, § 15; SL 1983, ch 385; SL 1986, ch 424, § 5; SL 1990, ch 414, § 3; SL 2006, ch 269, § 1; SDCL § 61-6-20; SL 2012, ch 252, §§ 57, 59.
61-6-36. Benefits prohibited in more than one benefit year as the result of one separation from work.
The wage credits of an individual earned in employment with base period employers during the period commencing with the end of the base period and ending on the date on which the individual filed a valid claim are not available for benefit purposes in a subsequent benefit year unless, in addition thereto, the individual has earned wages in insured employment, since the establishment of the individual's previous benefit year, in an amount equivalent to at least four times the individual's current weekly benefit amount. A claim filed sufficiently in advance of anticipated unemployment to make the limitations of this section ineffective is invalid. It is the purpose of this section to prevent any individual from receiving benefits in more than one benefit year as the result of one separation from work.
Source: SDC 1939, § 17.0829 (7) as added by SL 1961, ch 108; SL 1988, ch 415; SL 2008, ch 277, § 119; SDCL § 61-6-9; SL 2012, ch 252, § 59.
61-6-37. Benefits not payable when benefits sought under other unemployment compensation law--Determination of ineligibility under other law.
An individual is not entitled to any benefits for any week with respect to which or a part of which the individual has received or is seeking reemployment assistance under a reemployment assistance or unemployment compensation law of another state or of the United States. However, if the appropriate agency of the other state or of the United States finally determines that the individual is not entitled to the reemployment assistance benefits, this disqualification does not apply.
Source: SDC 1939, § 17.0830 (6) as added by SL 1939, ch 87, § 7; SDC 1939, § 17.0830 (7) as enacted by SL 1943, ch 84; SL 2008, ch 277, § 128; SDCL § 61-6-21; SL 2012, ch 252, § 59; SL 2019, ch 216, § 16.
61-6-38. Misrepresentation to increase benefits unlawful.
It is unlawful for any person to make a false statement or representation knowing it to be false or knowingly fail to disclose a material fact to obtain or increase any benefits or other payments under this title, or under an unemployment insurance law of another state, of the federal government, or of a foreign government, either for the person, or any other person, or knowingly fail to report any change in circumstances which would affect the person's eligibility for reemployment assistance benefits or payments.
Source: SL 1936 (SS), ch 3, § 16 (a); SDC 1939, § 17.9907; SL 1951, ch 98; SL 1978, ch 359, § 2; SL 1979, ch 348, § 10; SL 2008, ch 277, § 131; SDCL § 61-6-24; SL 2012, ch 252, § 59; SL 2019, ch 216, § 17.
61-6-39. Denial of benefits from discovery of misrepresentation--Penalties.
Any individual who has willfully or fraudulently misrepresented any fact to secure or increase benefits under this title shall be denied benefits for weeks of otherwise compensable unemployment, as defined in this chapter from and after the date such misrepresentation or fraudulent act is discovered in accordance with rules promulgated by the department pursuant to chapter 1-26. In addition to any penalty imposed under this title, the department shall impose a penalty equal to fifty percent of the amount of benefits obtained by willful or fraudulent misrepresentation for the first offense and a penalty equal to one hundred percent of the amount of benefits for each subsequent offense. Any penalty collected shall be paid into the unemployment trust fund.
Source: SDC 1939, § 17.0830 (8) as added by SL 1953, ch 76, § 7; SL 1993, ch 375, § 35; SDCL § 61-6-22; SL 2012, ch 252, § 59; SL 2013, ch 258, § 1.
61-6-40. Obtaining or attempting to obtain benefits by misrepresentation as misdemeanor or felony--Aggregation of benefits obtained to determine degree of offense.
A person who attempts to obtain benefits or payments in violation of § 61-6-38, but does not obtain any benefits or payments, or a person who violates § 61-6-38 and obtains benefits or payments in an amount of two hundred dollars or less, is guilty of a Class 1 misdemeanor. A person who violates § 61-6-38 and obtains benefits or payments of more than two hundred dollars is guilty of a Class 6 felony. Benefits or payments obtained during the course of a twelve month period are aggregated in determining the degree of the offense.
Source: SL 1979, ch 348, § 11; SDCL § 61-6-24.1; SL 2012, ch 252, § 59.
61-6-41. Deduction or repayment of overpayments.
An individual who was paid any amount as benefits under this title to which the individual is not entitled is liable for repayment of the amount overpaid, or for the amount received in the event of misrepresentation, unless recovery of the overpayment is waived as provided in § 61-6-42. The department may elect to recover the overpayment by requiring repayment by the individual or deducting the overpayment from any future benefits payable to the individual. The department may also recover the overpayment in the manner provided in §§ 61-5-59 to 61-5-66, inclusive, for the collection of delinquent contributions.
Source: SL 1936 (SS), ch 3, § 16 (d); SDC 1939, § 17.0844; SL 1974, ch 328, § 2; SL 1993, ch 377, § 12; SL 2008, ch 277, § 129; SDCL § 61-6-23; SL 2012, ch 252, § 59.
61-6-42. Waiver of right to recover overpayment.
The Department of Labor and Regulation may, according to rules promulgated pursuant to chapter 1-26 by the secretary of labor and regulation, waive the right of recovery of any benefits received by any claimant not entitled thereto, if the overpayment was not the fault of the claimant and if, in the judgment of the department, recovery would defeat the purpose of benefits otherwise authorized or would be against equity and good conscience.
Source: SL 1974, ch 328, § 1; SL 1983, ch 22, § 16; SL 1993, ch 375, § 36; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-6-23.1; SL 2012, ch 252, § 59.
61-6-43. Collection or deduction of overpayments by another state.
If an agency administering another reemployment assistance or unemployment compensation law in another state has overpaid benefits to an individual located in South Dakota, the Department of Labor and Regulation may, in its own name and acting as agent for such other agency, collect the overpayment by civil action and pay the net amount recovered to the agency in the manner provided in §§ 61-5-59 to 61-5-66, inclusive. If benefits are currently payable to the individual, the department may, with notice to the individual, pay as much of the benefits to the agency as are necessary to satisfy the individual's indebtedness to the agency.
Source: SL 1981, ch 371, § 6; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-6-23.3; SL 2012, ch 252, § 59; SL 2019, ch 216, § 18.
61-6-44. Interest on benefit not repaid--Interest paid into employment security contingency fund.
Any benefit erroneously paid which is not repaid shall bear interest at the rate of Category C rate of interest under subdivision 54-3-16 (3). If the claimant was at fault in causing the overpayment, interest applies from the date of the determination of overpayment until payment plus accrued interest is received by the department. If the overpayment was without fault of the claimant, interest shall apply only to any balance unpaid six months after the determination of overpayment and shall continue 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 1987, ch 388, § 4; SDCL § 61-6-23.4; SL 2012, ch 252, § 59.
61-6-45. Cancellation of uncollectible overpayments.
If benefit sums paid remain unpaid by the recipient or have not been deducted from benefits payable to the recipient within ten years following the date the overpayment was established, the secretary of labor and regulation may declare the sums uncollectible and cancel the overpayment. The secretary may cancel and waive recovery of such overpayment for which the claimant's liability was established under § 61-6-41 upon receipt of proper certification by a Department of Labor and Regulation representative that:
(1) The claimant has been duly discharged of such liability by a federal bankruptcy court;
(2) The claimant has died and reasonable efforts have been made to recover the overpayment from the claimant's estate; or
(3) The overpayment has been outstanding ten years or more after the liability was established and reasonable efforts have been made to recover it.
Source: SL 1981, ch 371, § 5; SL 2008, ch 277, § 130; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-6-23.2; SL 2012, ch 252, § 59.
61-6-46. Benefits restricted to amount in the unemployment compensation fund.
Benefits are due and payable under this title only to the extent provided in this title and to the extent that moneys are available therefor to the credit of the unemployment compensation fund. Neither the state nor the department nor the secretary is liable for any amount in excess of such sums.
Source: SL 1936 (SS), ch 3, § 18; SDC 1939, § 17.0843; SL 2008, ch 277, § 132; SDCL § 61-6-25; SL 2012, ch 252, § 59.
61-6-47. Waiver of rights and benefits prohibited--Violation as misdemeanor.
No employer may directly or indirectly require or accept any waiver of any right under this title by any employee. Any agreement by an employee to waive, release, or commute the employee's rights to benefits or any other rights under this title is void. Any employer or officer or agent of an employer who shall violate any of the provisions of this section against waivers, releases, or commutation of rights to benefits by a person entitled to benefits from the unemployment compensation fund 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, § 133; SDCL § 61-6-26; SL 2012, ch 252, § 59.
61-6-48. Assignment of benefits void--Exemption from process--Waiver of exemption void--Information furnished to Department of Social Services--Disclosure of obligations by applicant--Deductions--Reimbursement of costs.
Any assignment, pledge, or encumbrance of any right to benefits which are or may become due or payable under this title is void except as provided in this section. The rights to benefits are exempt from levy, execution, attachment, or any other remedy provided for the collection of debt. Any benefits received by any individual, so long as the benefits are not mingled with other funds of the recipient, are exempt from any remedy for the collection of all debts, except debts incurred for necessaries furnished to the individual, the individual's spouse, or dependents during the time when the individual was unemployed. Any waiver not provided for in this section is void.
The secretary of the Department of Labor and Regulation shall furnish information on individuals receiving reemployment assistance benefits to the Department of Social Services in accordance with section 303(e) of the Social Security Act as amended by section 2333(b) of P. L. 97-5--August 13, 1981. The secretary may also furnish this information in accordance with section 13 of the Food Stamp Act of 1977 as amended by section 1535 of P.L. 99-198. The Department of Social Services determines periodically whether any of these individuals receiving reemployment assistance owe child support obligations or an uncollected overissuance of food stamp coupons.
Each new applicant filing for reemployment assistance benefits shall disclose any obligation for child support payments in accordance with section 454(19) of the Social Security Act as amended by section 101(a) of P.L. 93-647, and may be required to disclose any obligation for uncollected overissuances (as defined in section 13(c)(1) of the Food Stamp Act of 1977) of food stamp coupons, to the Department of Labor and Regulation at the time of filing. If an individual disclosing child support obligations is eligible for reemployment assistance benefits, the secretary shall notify the Department of Social Services.
The secretary shall deduct from an eligible individual's reemployment assistance benefit payment and pay to the secretary of the Department of Social Services:
(1) The amount determined by agreement between the individual and the Department of Labor and Regulation;
(2) The amount determined by agreement between the individual and the Department of Social Services; or
(3) The amount determined by the Department of Social Services through legal processes.
If an individual disclosing an uncollected overissuance of food stamp coupons is eligible for reemployment assistance benefits, the secretary may notify the Department of Social Services. The secretary may also deduct from an eligible individual's reemployment assistance benefit payment, and pay to the secretary of the Department of Social Services, the amount determined by subdivisions (1) to (3), inclusive, of this section.
The secretary of the Department of Social Services shall reimburse the Department of Labor and Regulation for administrative costs incurred by the Department of Labor and Regulation attributable to child support payment obligations and food stamp overissuance obligations being enforced by the Department of Social Services.
Source: SL 1936 (SS), ch 3, § 15; SDC 1939, § 17.0840; SL 1982, ch 369, § 12; SL 1986, ch 424, § 7; SL 2008, ch 277, § 135; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-6-28; SL 2012, ch 252, § 59; SL 2013, ch 258, § 21; SL 2019, ch 216, § 19.
61-6-49. Extended benefits--Definition of terms.
Terms used in §§ 61-6-50 to 61-6-63, inclusive, mean:
(1) "Additional benefits," benefits totally financed by a state and payable under a state law to exhaustees by reason of conditions of high unemployment or by reason of other special factors, such as an exhaustee's being in training with the approval of the state agency;
(2) "Eligibility period," the period consisting of the weeks in the individual's benefit year which begin in an extended benefit period and, if the individual's benefit year ends within such extended benefit period, any weeks thereafter which begin in such period;
(3) "Extended benefits," benefits (including benefits payable to federal civilian employees and to ex- servicemen pursuant to 5 U.S.C. chapter 85) payable to an individual under the provisions of this section for weeks of unemployment in the individual's eligibility period;
(4) "Extended benefits period," a period which begins with the third week after whichever of the following weeks occurs first: a week for which there is a national "on" indicator, or a week for which there is a state "on" indicator, and ends with either of the following weeks, whichever occurs later: the third week after the first week for which there is both a national "off" indicator and a state "off" indicator, or the thirteenth consecutive week of such period;
(5) "Rate of insured unemployment," the percentage derived by dividing the average weekly number of individuals filing claims for regular benefits in this state for weeks of unemployment with respect to the most recent thirteen-consecutive-week period, as determined by the Department of Labor and Regulation on the basis of its reports to the United States secretary of labor, by the average monthly employment covered under this title for the first four of the most recent six completed calendar quarters ending before the end of such thirteen-week period;
(6) "Regular benefits," benefits payable to an individual under this title or under any other state law (including benefits payable to federal civilian employees and to ex-servicemen pursuant to 5 U.S.C. chapter 85) other than extended benefits or additional benefits;
(7) "State law," the reemployment assistance or unemployment insurance law of any state, approved by the United States secretary of labor under section 3304 of the Internal Revenue Code of 1954.
Source: SL 1971, ch 276, § 80; SL 1974, ch 331, §§ 1, 2; SL 1982, ch 369, § 13; SL 2008, ch 277, § 136; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SDCL § 61-6-29; SL 2012, ch 252, § 59; SL 2019, ch 216, § 20.
61-6-50. Computation of unemployment rate to follow federal regulations.
Computations required by the provisions of subdivision 61-6-49 (5) shall be made by the department, in accordance with regulations prescribed by the United States secretary of labor.
Source: SL 1971, ch 276, § 91; SDCL § 61-6-30; SL 2012, ch 252, § 59.
61-6-51. Determination of state "on" indicator.
With respect to compensation for weeks of unemployment, there is a state "on" indicator for this state for a week if the director determines, in accordance with the regulations of the United States secretary of labor, that for the period consisting of that week and the immediately preceding twelve weeks, the rate of insured unemployment (not seasonally adjusted) under this title equaled or exceeded one hundred twenty percent of the average of such rates for the corresponding thirteen-week period ending in each of the preceding two calendar years, and equaled or exceeded five percent.
Source: SL 1971, ch 276, § 85; SL 1975, ch 321, § 3; SL 1982, ch 369, § 3; SL 2008, ch 277, § 137; SDCL § 61-6-33; SL 2012, ch 252, § 59.
61-6-52. Determination of state "off" indicator.
With respect to compensation for weeks of unemployment, there is a state "off" indicator for this state for a week if the director determines, in accordance with the regulations of the United States secretary of labor, that for the period consisting of that week and the immediately preceding twelve weeks, the rate of insured unemployment (not seasonally adjusted) under this title was less than one hundred twenty percent of the average of such rates for the corresponding thirteen-week period ending in each of the preceding two calendar years, or was less than five percent.
Source: SL 1971, ch 276, § 86; SL 1975, ch 321, § 4; SL 1982, ch 369, § 4; SL 2008, ch 277, § 138; SDCL § 61-6-34; SL 2012, ch 252, § 59.
61-6-53. Minimum period between extended benefit periods.
No extended benefits period may begin by reason of a state "on" indicator before the fourteenth week following the end of a prior extended benefit period which was in effect with respect to this state.
Source: SL 1971, ch 276, § 82; SDCL § 61-6-35; SL 2012, ch 252, § 59.
61-6-54. Public announcement of commencement or termination of extended benefit period.
Whenever an extended benefit period is to become effective in this state (or in all states) as a result of a state or a national "on" indicator, or an extended benefit period is to be terminated in this state as a result of state and national "off" indicators, the department shall make an appropriate public announcement.
Source: SL 1971, ch 276, § 91; SDCL § 61-6-36; SL 2012, ch 252, § 59.
61-6-55. Extended benefits limited to exhaustees--Eligibility for regular benefits.
An individual is eligible to receive extended benefits with respect to any week of unemployment in the individual's eligibility period only if the department finds that with respect to such week the individual is an exhaustee, as defined in § 61-6-56, and the individual has satisfied the requirements of this title for the receipt of regular benefits that are applicable to individuals claiming extended benefits, including not being subject to a disqualification for the receipt of benefits.
Source: SL 1971, ch 276, § 88; SL 2008, ch 277, § 139; SDCL § 61-6-37; SL 2012, ch 252, § 59.
61-6-56. Exhaustee defined.
The term, exhaustee, under the provisions of §§ 61-6-49 to 61-6-63, inclusive, means an individual who, with respect to any week of unemployment in the individual's eligibility period:
(1) Has received, prior to the week, all of the regular benefits that were payable to the individual under this title or any other state law (including dependents' allowances and regular benefits payable to federal civilian employees and ex-servicemen under 5 U.S.C. chapter 85) for the individual's benefit year that includes the week; or
(2) Has received, prior to the week, all of the regular benefits that were available to the individual under this title or any other state law (including dependents' allowances and regular benefits available to federal civilian employees and ex-servicemen under 5 U. S.C. chapter 85) in the individual's benefit year that includes the week, after the cancellation of some or all of the individual's wage credits or the total or partial reduction of the individual's right to regular benefits.
Source: SL 1971, ch 276, § 81; SL 1974, ch 331, § 3; SL 2008, ch 277, § 140; SDCL § 61-6-38; SL 2012, ch 252, § 59.
61-6-57. Qualification for extended benefits despite receipt of more payments after appeal--Seasonal workers--Disqualified applicants for regular benefits.
For the purposes of § 61-6-56, an individual is considered to have received, in the individual's applicable benefit year, all of the regular benefits that were payable or available to the individual, even though:
(1) As a result of a pending appeal with respect to wages or employment, or both, that were not included in the original monetary determination with respect to the benefit year, the individual may subsequently be determined to be entitled to more regular benefits; or
(2) By reason of the seasonal provisions promulgated pursuant to § 61-1-54 or the seasonal provisions of another state law, the individual is not entitled to regular benefits with respect to the week of unemployment (although the individual may be entitled to regular benefits with respect to future weeks of unemployment in the next season or off season, in such benefit year), and the individual is otherwise an exhaustee within the meaning of § 61-6-56 with respect to the individual's right to regular benefits under the state law seasonal provisions during the season or off season in which that week of unemployment occurs; or
(3) Having established a benefit year, no regular benefits are payable to the individual during that year because the individual's wage credits were canceled or the individual's right to regular benefits was totally reduced as the result of the application of a disqualification.
An individual is not entitled to extended benefits unless, during the individual's base period, the individual has earned wages for insured work equal to one and one-half times the individual's earnings in the highest quarter of the individual's base period.
Source: SL 1971, ch 276, § 81 (1); SDCL Supp, § 61-6-38 (1); SL 1974, ch 331, § 3; SL 1982, ch 369, § 5; SL 2008, ch 277, § 141; SDCL § 61-6-38.1; SL 2012, ch 252, § 59.
61-6-58. Qualification for extended benefits on termination of regular benefit year.
The term, exhaustee, under the provisions of §§ 61-6-49 to 61-6-63, inclusive, includes an individual who, with respect to any week of unemployment in the individual's eligibility period:
(1) The individual's benefit year having ended prior to that week, has insufficient wages or employment, or both, on the basis of which the individual could establish in any state a new benefit year that would include the week, or having established a new benefit year that includes the week, the individual is precluded from receiving regular benefits by reason of the provision in § 61-6-36, which meets the requirement of section 3304 (a)(7) of the Federal Unemployment Tax Act, or the similar provision in any other state law;
(2) Has no right for the week to reemployment assistance or unemployment benefits or allowances, as the case may be, under the Railroad Unemployment Insurance Act, the Trade Expansion Act of 1962, and such other federal laws as are specified in regulations issued by the United States secretary of labor; and
(3) Has not received and is not seeking for the week reemployment assistance under the unemployment compensation law of the Virgin Islands or Canada, unless the appropriate agency finally determines that the individual is not entitled to reemployment assistance under the law for the week.
Source: SL 1971, ch 276, § 81 (2); SDCL Supp, § 61-6-38 (2); § 61-6-38 (3), (4) as enacted by SL 1974, ch 331, § 3; SL 2008, ch 277, § 142; SDCL § 61-6-38.2; SL 2012, ch 252, § 59; SL 2019, ch 216, § 21.
61-6-59. Applicable benefit year defined.
The term, applicable benefit year, means, with respect to an individual, the individual's current benefit year if at the time the individual files a claim for extended benefits the individual has an unexpired benefit year only in the state in which the individual files the claim or, in any other case, the individual's most recent benefit year. For this purpose the individual's most recent benefit year, if the individual has unexpired benefit years in more than one state when the individual files a claim for extended benefits, is the benefit year with the latest ending date, or, if the benefit years have the same ending date, the benefit year in which the individual's latest continued claim for regular benefits was filed.
Source: SDCL § 61-6-38 (5) as enacted by SL 1974, ch 331, § 3; SL 2008, ch 277, § 143; SDCL § 61-6-38.3; SL 2012, ch 252, § 59.
61-6-60. Amount of weekly extended benefit--Reduction.
The weekly extended benefit amount payable to an individual for a week of total unemployment in the individual's eligibility period shall be an amount equal to the weekly benefit amount payable to the individual during the individual's applicable benefit year. However, for any week during a period in which federal payments to states under section 204 of the Federal-State Extended Unemployment Compensation Act of 1970 are reduced under an order issued under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985, the weekly extended benefit amount payable to an individual for a week of total unemployment in the individual's eligibility period shall be reduced by a percentage equivalent to the percentage of the reduction in the federal payment. The reduced weekly extended benefit amount, if not a full dollar amount, shall be rounded to the nearest lower full dollar amount.
Source: SL 1971, ch 276, § 89; SL 1987, ch 388, § 5; SL 2008, ch 277, § 144; SDCL § 61-6-39; SL 2012, ch 252, § 59.
61-6-61. Maximum extended benefits payable in year--Reduction of total extended benefit amount.
The total extended benefit amount payable to any eligible individual with respect to the individual's applicable benefit year shall be the least of the following amounts:
(1) Fifty percent of the total amount of regular benefits which were payable to the individual under this title in the individual's applicable benefit year;
(2) Thirteen times the individual's weekly benefit amount which was payable to the individual under this title for a week of total unemployment in the applicable benefit year.
However, during any fiscal year in which federal payments to states under section 204 of the Federal-State Extended Unemployment Compensation Act of 1970 are reduced under an order issued under section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985, the total extended benefit amount payable to an individual with respect to the individual's applicable benefit year shall be reduced by an amount equal to the aggregate of the reductions under § 61-6-60 in the weekly amounts paid to the individual.
Source: SL 1971, ch 276, § 90; SL 1987, ch 388, § 6; SL 2008, ch 277, § 145; SDCL § 61-6-40; SL 2012, ch 252, § 59.
61-6-62. Extended benefits not chargeable to employer.
No benefits payable under § 61-6-61 are chargeable to an employer's experience-rating account.
Source: SL 1971, ch 276, § 92; SL 2008, ch 277, § 146; SDCL § 61-6-41; SL 2012, ch 252, § 59.
61-6-63. Claims for and payment of extended benefits.
Except when the result would be inconsistent with the provisions of §§ 61-6-49 to 61-6-66, inclusive, the provisions of this title which apply to claims for, or the payment of, regular benefits shall apply to claims for, and the payment of, extended benefits.
Source: SL 1971, ch 276, § 87; SL 1983, ch 22, § 18; SL 1993, ch 377, § 16; SDCL § 61-6-42; SL 2012, ch 252, § 59.
61-6-64. Administration of extended benefits to conform to federal requirements.
In the administration of the provisions of §§ 61-6-49 to 61-6-66, inclusive, which are enacted to conform with the requirements of the Federal-State Extended Unemployment Compensation Act of 1970 as amended as of January 1, 1993, the department shall take such action as may be necessary to ensure that the provisions are so interpreted and applied as to meet the requirements of such federal act as interpreted by the United States Department of Labor, and to secure to this state the full reimbursement of the federal share of extended benefits paid under this title that are reimbursable under the federal act.
Source: SL 1971, ch 276, § 79; SL 1993, ch 377, § 17; SDCL § 61-6-43; SL 2012, ch 252, § 59.
61-6-65. Interstate claims--Eligibility for extended benefits.
No extended benefits are payable for any week of unemployment to any individual for any week pursuant to an interstate claim filed in any state under the interstate benefit plan if an extended benefit period is not in effect for the state. However, this section does not apply with respect to the first two weeks for which extended benefits are payable pursuant to an interstate claim filed under the interstate payment plan.
Source: SL 1981, ch 372, § 1; SL 2008, ch 277, § 147; SDCL § 61-6-44; SL 2012, ch 252, § 59.
61-6-66. Disqualification for extended benefits on failure to seek or accept suitable work--Exception.
No individual may receive extended benefits for any week of unemployment in the individual's eligibility period if the secretary finds that during the period the individual failed to accept an offer of suitable work, failed to apply for suitable work to which the individual was referred by the secretary, or failed to actively engage in seeking work.
An individual who has been found to be ineligible for extended benefits shall be denied benefits for the week in which the failure occurred and until the individual has been subsequently employed for at least six calendar weeks in insured employment and has earned wages of not less than the individual's weekly benefit amount in each of those six weeks.
The term, suitable work, in this section means any work within an individual's capabilities which has a gross weekly wage that exceeds the individual's weekly benefit amount plus any supplemental unemployment benefits and which pays not less than the higher of the federal minimum wage as provided by the Fair Labor Standards Act or the state minimum wage.
No individual may be denied extended benefits for failure to accept an offer of, or apply for, a job which would otherwise be suitable work if:
(1) The position was not offered to the individual in writing or was not listed with the department;
(2) The position does not constitute suitable work under § 61-6-17; or
(3) The individual furnishes satisfactory evidence to the secretary that the individual's prospects for obtaining work in the individual's customary occupation within three weeks are good. If such evidence is satisfactory, suitable work shall be determined in accordance with § 61-6-17.
An individual is actively seeking work during a week if the individual engages in a sustained and systematic effort to obtain work during that week and the individual furnishes tangible evidence that the individual has engaged in such an effort during that week.
The department shall refer an individual who is entitled to extended benefits to any suitable work which meets the criteria described in this section.
Source: SL 1983, ch 22, § 20; SL 1993, ch 377, § 18; SL 2008, ch 277, § 148; SDCL § 61-6-45; SL 2012, ch 252, §§ 58, 59.
61-6-67. Voluntary withholding of federal income tax from benefit payments.
Any person filing a new claim for reemployment assistance shall, at the time of filing the claim, be advised that:
(1) Reemployment assistance is subject to federal income tax;
(2) Requirements exist pertaining to estimated tax payments;
(3) The person may elect to have federal income tax deducted and withheld from the person's payment of reemployment assistance at the amount specified in the Federal Internal Revenue Code; and
(4) The person may change a previously elected withholding status.
Amounts deducted and withheld from reemployment assistance shall remain in the unemployment fund until transferred to the federal taxing authority as a payment of income tax. The secretary shall follow all procedures specified by the United States Department of Labor and the Internal Revenue Service pertaining to the deduction and withholding of income tax. Amounts shall be deducted and withheld under this section only after amounts are deducted and withheld for any overpayments of reemployment assistance, child support obligations, food stamp over-issuances, or any other amounts required to be deducted and withheld under this title.
Source: SL 1996, ch 303; SDCL § 61-6-47; SL 2012, ch 252, § 59; SL 2019, ch 216, § 22.
61-6-68. Eligibility verification--Information sharing.
Each month, the Department of Labor and Regulation must:
(1) Compare the list of reemployment assistance recipients with new hire records and the state’s New Hire Data and the National Directory of New Hires to verify eligibility;
(2) Check the list of reemployment assistance recipients against the Department of Corrections' list of incarcerated individuals to verify eligibility and ensure program integrity; and
(3) Match the list of reemployment assistance recipients against the death records maintained as vital statistics records by the Department of Health and the Social Security Administration master death file.
The Department of Labor and Regulation may execute a memorandum of understanding with any department, agency, or division to share information under this section.
Source: SL 2022, ch 190, § 1; SL 2024, ch 207, § 1.
61-6A-1
Employer, tribal unit defined.
61-6A-2
Employment defined.
61-6A-3
Service-based benefits--Exceptions.
61-6A-4
Tribal contributions--Exception.
61-6A-5
Payments in lieu of contributions.
61-6A-6
Billing for payments.
61-6A-7
Liability for payments--Bond or deposit required.
61-6A-8
Failure to make payment--Loss of option.
61-6A-9
Reinstatement of option.
61-6A-10
Exception from definition of employer.
61-6A-11
Reinstatement as employer.
61-6A-12
Notice of payment or report of delinquency--Contents.
61-6A-13
Extended benefits to be financed by tribe.
61-6A-14
Failure to make payments--Notification of Internal Revenue Service and Department
of Labor.
61-6A-1. Employer, tribal unit defined.
For the purposes of §§ 61-6A-1 to 61-6A-14, inclusive, the term, employer, includes any Indian tribe for which service in employment as defined under Title 61 is performed. The term, tribal unit, means subdivisions, subsidiaries, or business enterprises, wholly owned by an Indian tribe.
Source: SL 2002, ch 244, § 1.
61-6A-2. Employment defined.
For the purposes of §§ 61-6A-1 to 61-6A-14, inclusive, the term, employment, includes any service performed in the employ of an Indian tribe, as defined in section 3306(u) of the Federal Unemployment Tax Act (FUTA), as of December 21, 2000, if the service is excluded from employment as defined in FUTA solely by reason of section 3306(c)(7) FUTA as of December 21, 2000, and is not otherwise excluded from employment under §§ 61-6A-1 to 61-6A-14, inclusive. For purposes of this section, the exclusions from employment in subdivisions 61-1-36(3) to 61-1-36(6), inclusive, are applicable to services performed in the employ of an Indian tribe.
Source: SL 2002, ch 244, § 2; SL 2013, ch 258, § 22.
61-6A-3. Service-based benefits--Exceptions.
Benefits based on service in employment defined in §§ 61-6A-1 to 61-6A-14, inclusive are payable in the same amount, on the same terms, and subject to the same conditions, as benefits payable based on other services subject to Title 61. However, the provisions of §§ 61-6-24, 61-6-25, and 61-6-26 apply to benefits based on service in employment defined in §§ 61-6A-1 to 61-6A-14, inclusive.
Source: SL 2002, ch 244, § 3; SL 2013, ch 258, § 23.
61-6A-4. Tribal contributions--Exception.
Each Indian tribe or tribal unit subject to §§ 61-6A-1 to 61-6A-14, inclusive shall pay contributions under the same terms and conditions as any other subject employer, unless the tribe or tribal unit elects to pay into the state unemployment fund amounts equal to the amount of benefits attributable to service in the employ of the Indian tribe.
Source: SL 2002, ch 244, § 4.
61-6A-5. Payments in lieu of contributions.
Each Indian tribe electing to make payments in lieu of contributions shall make the election in the same manner and under the same conditions as provided in chapter 61-5A pertaining to state and local governments and nonprofit organizations subject to Title 61. Each Indian tribe shall determine if reimbursement for benefits paid will be elected by the tribe as a whole, by individual tribal units, or by combinations of individual tribal units.
Source: SL 2002, ch 244, § 5.
61-6A-6. Billing for payments.
Each Indian tribe or tribal unit shall be billed for the full amount of benefits attributable to service in the employ of the Indian tribe or tribal unit on the same schedule as other employing units that have elected to make payments in lieu of contributions.
Source: SL 2002, ch 244, § 6.
61-6A-7. Liability for payments--Bond or deposit required.
At the discretion of the department, any Indian tribe or tribal unit that elects to become liable for payments in lieu of contributions may be required, within thirty days after the effective date of its election, to:
(1) Execute and file with the department a surety bond approved by the department; or
(2) Deposit with the department money or securities on the same basis as other employers with the same election option.
Source: SL 2002, ch 244, § 7.
61-6A-8. Failure to make payment--Loss of option.
If any Indian tribe or any tribal unit fails to make any required payments, including assessments of interest and penalty, within ninety days of receipt of the bill, the Indian tribe or tribal unit shall lose the option to make payments in lieu of contributions for the following tax year unless payment in full is received before contribution rates for next tax year are computed.
Source: SL 2002, ch 244, § 8.
61-6A-9. Reinstatement of option.
Any Indian tribe that loses the option to make payments in lieu of contributions due to late payment or nonpayment, shall have the option reinstated if, after a period of one year, all contributions have been made timely, provided no contributions, payments in lieu of contributions for benefits paid, penalties, or interest remain outstanding.
Source: SL 2002, ch 244, § 9.
61-6A-10. Exception from definition of employer.
If any Indian tribe or any tribal unit fails to make any required payments, including assessments of interest and penalty, after all collection efforts deemed necessary by the department have been exhausted, no services performed for such tribe or tribal unit may be treated as employment for purposes of § 61-6A-2.
Source: SL 2002, ch 244, § 10.
61-6A-11. Reinstatement as employer.
If any Indian tribe or tribal unit loses coverage under § 61-6A-10, the department may again include services performed for such tribe as employment for purposes of § 61-6A-2 if all contributions, payments in lieu of contributions, penalties, and interest have been paid.
Source: SL 2002, ch 244, § 11.
61-6A-12. Notice of payment or report of delinquency--Contents.
Any notice of payment and reporting delinquency to any Indian tribe or tribal unit shall include information indicating that failure to make full payment within the prescribed time frame:
(1) Shall cause the Indian tribe to be liable for taxes under the Federal Unemployment Tax Act;
(2) Shall cause the Indian tribe to lose the option to make payments in lieu of contributions; and
(3) May cause the Indian tribe to be excepted from the definition of employer as provided in § 61-6A-1, and services in the employ of the Indian tribe, as provided in § 61-6A-2, to be excepted from employment.
Source: SL 2002, ch 244, § 12.
61-6A-13. Extended benefits to be financed by tribe.
Extended benefits paid that are attributable to service in the employ of an Indian tribe and not reimbursed by the federal government shall be financed in their entirety by the Indian tribe.
Source: SL 2002, ch 244, § 13.
61-6A-14. Failure to make payments--Notification of Internal Revenue Service and Department of Labor.
If any Indian tribe fails to make payments required under §§ 61-6A-1 to 61-6A-10, inclusive, including assessments of interest and penalty, within ninety days of a final notice of delinquency, the department shall immediately notify the United States Internal Revenue Service and the United States Department of Labor.
Source: SL 2002, ch 244, § 14.
61-7-1
Rules for filing of claims--Posting by employers--Statement furnished at time of
unemployment.
61-7-2
Determination of claim by benefit section--Reference to appeal referee or secretary.
61-7-3
Notice to claimant and employers of decision by benefit section--Contents of notice.
61-7-4
Adjusted determination by benefit section.
61-7-5
Initial determination final unless appealed--Payment of benefits in accordance with
determination being appealed.
61-7-6
Appointment of appeals referees--Interest in proceedings prohibited.
61-7-7
Transfer of appeal before referee.
61-7-8
Rules for hearings and appeals.
61-7-9
Witness fees--Expense of proceedings as administration expense.
61-7-10
Decision by appeal referee--Notice to parties--Final unless appealed.
61-7-10.1
Payment of benefits in accordance with determination being appealed--Effect of
modification or reversal.
61-7-11
Repealed.
61-7-12
Action by secretary on own motion or appeal--Notice to parties--Final decision of
department.
61-7-13
Department as party to judicial action--Representation of department in appeal.
61-7-14
Appeal of department's final decision--No bond required.
61-7-15 to 61-7-20. Repealed.
61-7-21
Fees not chargeable to claimant--Violation as misdemeanor.
61-7-22
Claimant's right to counsel--Maximum attorney fee--Employer's representation--Department's representation.
61-7-23
Repealed.
61-7-24
Findings, conclusions, and decisions not admissible as evidence in separate or
subsequent actions or proceedings.
61-7-1. Rules for filing of claims--Posting by employers--Statement furnished at time of unemployment.
Claims for benefits shall be made in accordance with rules promulgated by the department pursuant to chapter 1-26. Each employer shall post and maintain printed statements of the regulations in places readily accessible to individuals in the employer's service and shall make available to each such individual at the time the individual becomes unemployed, a printed statement of the regulations. The printed statements shall be supplied by the department to each employer without cost to the employer.
Source: SL 1936 (SS), ch 3, § 6 (a); SDC 1939, § 17.0831; SL 1993, ch 375, § 37; SL 1993, ch 377, § 14; SL 2008, ch 277, § 149.
61-7-2. Determination of claim by benefit section--Reference to appeal referee or secretary.
The benefit section of the department shall promptly examine the claim and, on the basis of the facts found, shall either determine whether or not such claim is valid, and if valid the week with respect to which benefits shall commence, the weekly benefit amount payable, and the maximum benefits payable, or shall refer the claim or any question involved therein to an appeal referee, or to the secretary who shall make a determination with respect thereto in accordance with § 61-7-10.
Source: SL 1936 (SS), ch 3, § 6 (b); SDC 1939, § 17.0832; SL 1939, ch 90, § 1; SL 1943, ch 85; SL 1947, ch 88, § 13; SL 2008, ch 277, § 150.
61-7-3. Notice to claimant and employers of decision by benefit section--Contents of notice.
The benefit section shall promptly notify the claimant and any other interested party, including former employers whose reserve accounts may be charged, of the decision and the reasons therefor, which notification shall contain a statement showing the claimant's name, the claimant's social security account number, the date of registration, separation date, the reason for separation, names of all employers in the base period, week with respect to which benefits shall commence, the weekly benefit amount, the maximum benefits payable, and the maximum amount of benefits chargeable to each employer's account.
Source: SL 1936 (SS), ch 3, § 6 (b); SDC 1939, § 17.0832; SL 1939, ch 90, § 1; SL 1943, ch 85; SL 1947, ch 88, § 13; SL 2008, ch 277, § 151.
61-7-4. Adjusted determination by benefit section.
The benefit section may, notwithstanding § 61-7-5, set aside a determination for the purpose of making an adjusted determination based on error of the department or on additional facts obtained.
Source: SDC 1939, § 17.0832 as added by SL 1943, ch 85; SL 1947, ch 88, § 13; SL 1986, ch 424, § 6; SL 1993, ch 377, § 13.
61-7-5. Initial determination final unless appealed--Payment of benefits in accordance with determination being appealed.
Unless the claimant, or any other interested party, within fifteen days after notice has been mailed to the claimant's or the interested party's last known address, applies for reopening of the initial determination or files an appeal from the adjusted determination, the determination shall be final insofar as an appeal by interested parties is concerned and benefits shall be paid or denied in accordance therewith. Benefits shall be paid promptly in accordance with a determination, redetermination, or appeal which allows benefits, and the allowance of benefits shall continue regardless of the pendency of the period to apply for reconsideration, file an appeal, or petition for judicial review and regardless of the pendency of the adjudication process.
Source: SL 1936 (SS), ch 3, § 6 (b); SDC 1939, § 17.0832; SL 1939, ch 90, § 1; SL 1943, ch 85; SL 1947, ch 88, § 13; SL 1972, ch 269, § 5; SL 1974, ch 332, § 1; SL 1989, ch 450, § 1; SL 2008, ch 277, § 152.
61-7-6. Appointment of appeals referees--Interest in proceedings prohibited.
The department shall appoint one or more impartial appeals referees to hear and decide disputed claims. No referee may preside at a hearing in which the referee has an interest in the outcome thereof.
Source: SL 1936 (SS), ch 3, § 6 (d); SDC 1939, § 17.0834; SL 1941, ch 89; SL 1947, ch 88, § 15; SL 2008, ch 277, § 153.
61-7-7. Transfer of appeal before referee.
The secretary may remove to himself or herself or transfer to another appeal referee the proceedings on any claim pending before an appeal referee.
Source: SL 1936 (SS), ch 3, § 6; SDC 1939, § 17.0835; SL 1947, ch 88, § 16; SL 2008, ch 277, § 154.
61-7-8. Rules for hearings and appeals.
The manner in which disputed claims shall be presented, the related reports required from the claimant and from employers, and the conduct of hearings and appeals shall be in accordance with rules promulgated pursuant to chapter 1-26 by the secretary of labor and regulation for determining the rights of the parties.
Source: SL 1936 (SS), ch 3, § 6 (f); SDC 1939, § 17.0836; SL 1983, ch 22, § 21; SL 1993, ch 375, § 38; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-7-9. Witness fees--Expense of proceedings as administration expense.
Witnesses subpoenaed for hearings, appeals, or reviews of benefit claims shall be allowed fees at a rate fixed by the department. Such fees and all expenses of proceedings involving disputed claims shall be deemed a part of the expense of administering this title.
Source: SL 1936 (SS), ch 3, § 6 (g); SDC 1939, § 17.0837.
61-7-10. Decision by appeal referee--Notice to parties--Final unless appealed.
Unless an appeal pursuant to § 61-7-5 is withdrawn, an appeal referee after affording the parties reasonable opportunity for fair hearing, shall affirm or modify the findings of fact and decision of the benefit section. The parties shall be duly notified of such referee's decision, together with its reasons therefor, which is the final decision of the Department of Labor and Regulation, unless within fifteen days after date of notification or mailing of such decision, further appeal is initiated pursuant to § 61-7-12.
Source: SL 1936 (SS), ch 3, § 6 (c); SDC 1939, § 17.0833; SL 1947, ch 88, § 14; SL 1984, ch 339, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-7-10.1. Payment of benefits in accordance with determination being appealed--Effect of modification or reversal.
If a determination or redetermination allowing benefits is affirmed in any amount by the Department of Labor and Regulation benefits shall be paid promptly regardless of any further appeal or the disposition of the appeal and no injunction, supersedeas, stay or other unit or process suspending the payment of benefits may be issued by any court; but if the decision is finally modified or reversed to deny benefits:
(1) Benefits may not be paid for any week of unemployment involved in the modification or reversal, until a disqualification if imposed has been satisfied; and
(2) No contributing employer's experience rating account may be charged with benefits paid prior to the determination reversing or modifying a prior determination that would not have been paid pursuant to the reversing or modifying determination, but the noncharging does not apply to employers liable for reimbursement to the department for payments that were paid by the department; and
(3) Benefits paid pursuant to this section or § 61-7-5 shall constitute a recoverable overpayment as provided in § 61-6-41.
Source: SL 1936 (SS), ch 3, § 6 (b); SDC 1939, § 17.0832; SL 1939, ch 90, § 1; SL 1943, ch 85; SL 1947, ch 88, § 13; SDCL § 61-7-11; SDCL Supp, § 61-7-5 as added by SL 1972, ch 269, § 5; SL 1974, ch 332, § 1; SL 1984, ch 339, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2013, ch 258, § 24.
61-7-11. Repealed by SL 1974, ch 332, § 2.
61-7-12. Action by secretary on own motion or appeal--Notice to parties--Final decision of department.
The secretary of labor and regulation may on the secretary's own motion affirm, modify, or set aside any decision of an appeal referee on the basis of the evidence previously submitted in the case, or direct the taking of additional evidence, or may permit any of the parties to the decision to initiate further appeals before the secretary. The secretary may permit such further appeal by any of the parties interested in a decision of an appeal referee and by the benefit section whose decision has been overruled or modified by an appeal referee. The secretary shall promptly notify the interested parties of the secretary's findings and decision. Any decision of the secretary is the final decision of the Department of Labor and Regulation.
Source: SL 1936 (SS), ch 3, § 6; SDC 1939, §§ 17.0835, 17.0838; SL 1947, ch 88, § 16; SL 1984, ch 339, § 3; SL 2008, ch 277, § 155; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-7-13. Department as party to judicial action--Representation of department in appeal.
The Department of Labor and Regulation is a party to any judicial action involving any department decision, and may, if it so elects, become involved in the appeal and be represented by any qualified attorney who has been designated by the department with the approval of the attorney general for that purpose, or at the secretary's request, by the attorney general.
Source: SL 1936 (SS), ch 3, § 6 (h); SDC 1939, § 17.0838; SL 1939, ch 84, § 8; SL 1984, ch 339, § 4; SL 1989, ch 450, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-7-14. Appeal of department's final decision--No bond required.
A final decision of the Department of Labor and Regulation is appealable as provided by chapter 1-26 and no bond may in any event be required for entering such appeal.
Source: SL 1936 (SS), ch 3, § 6 (i); SDC 1939, § 17.0839; SL 1941, ch 90; SL 1972, ch 269, § 6; SL 1984, ch 339, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.
61-7-15 to 61-7-20. Repealed by SL 1972, ch 269, § 7.
61-7-21. Fees not chargeable to claimant--Violation as misdemeanor.
No individual claiming benefits may be charged fees of any kind in any proceeding under this title by the department or by any court. Violation of this section is a Class 2 misdemeanor.
Source: SL 1936 (SS), ch 3, § 15 (b); SDC 1939, §§ 17.0840, 17.9906; SDCL § 61-7-23; SL 1978, ch 359, § 2; SL 2008, ch 277, § 156.
61-7-22. Claimant's right to counsel--Maximum attorney fee--Employer's representation--Department's representation.
Any individual claiming benefits in any proceeding before the department may be represented by counsel or other duly authorized agent; but no such counsel or agent may either charge or receive for such services more than an amount approved by the department. An employer, including a corporate employer, may be represented before the department by counsel, an employee or a corporate officer. The department may be represented before the department by counsel or an employee of the department.
Source: SL 1936 (SS), ch 3, § 15 (b); SDC 1939, §§ 17.0840, 17.9906; SDCL, § 61-7-23; SL 1978, ch 359, § 2; SL 1993, ch 377, § 15.
61-7-23. Repealed by SL 1978, ch 359, § 3.
61-7-24. Findings, conclusions, and decisions not admissible as evidence in separate or subsequent actions or proceedings.
No finding of fact, conclusion of law, decision or final order made by an appeals referee or the secretary of labor and regulation in any action under this chapter may be used as evidence in any separate or subsequent action or proceeding between an individual and the individual's present or former employer brought before an arbitrator, court or judge of this state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts.
Source: SL 1988, ch 416; SL 2008, ch 277, § 157; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.