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61-6-1.1 Repealed by SL 1991, ch 414, § 2.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61-6-1.8 Repealed by SL 1990, ch 415, § 4.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61-6-3 Repealed by SL 1993, § 10.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61-6-10 Repealed by SL 1971, ch 276, § 93.
61-6-11 Repealed by SL 1983, ch 22, § 13.
61-6-12 Repealed by SL 1993, ch 377, § 11.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61-6-18 Repealed by SL 1979, ch 348, §§ 7, 8.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 Repealed by SL 2014, ch 250, §§ 1, 2, eff.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.
