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61-1-10.10    Repealed by SL 1990, ch 415, § 3.

61-1-10.11    Repealed by SL 1991, ch 414, § 1.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61-1-16    Repealed by SL 1977, ch 420, § 38.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61-1-21    Repealed by SL 1989, ch 446.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61-1-29    Repealed by SL 1971, ch 276, § 93.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.

61-1-10.1, 61-1-10.2. 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 to 61-1-10.9. 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.

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.

61-1-16.1. Transferred to § 61-1-14 by SL 2012, ch 252, § 59.

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.

61-1-18.1. Transferred to § 61-1-33 by 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.

61-1-31.1. 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.

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.