What Are My Rights to Pay for Work in South Dakota?
You are entitled to be paid the minimum wage set by law in South Dakota, unless you are exempt, and you have other work pay rights, too. No matter how you are paid in South Dakota, whether by hourly wage, salary, commissions, tips, or piece rate, the law in South Dakota gives you certain rights. While your employer can pay you in a variety of ways, each manner of payment is regulated by federal law and some states also regulate them. These regulations:
- guarantee minimum wage rates
- define commission pay
- set paycheck payment schedules, and
- establish the deadlines for paycheck payments in South Dakota.
The South Dakota Department of Labor and Regulation explains the South Dakota laws that regulate pay for work in South Dakota.
When Am I Entitled to be Paid in South Dakota?
The schedule of payment is set by state law. This U.S. Department of Labor State Payday Requirements chart sets out the payment schedule for each state. Check this chart for the paycheck payment schedule in South Dakota.
Am I Entitled to Minimum Wage in South Dakota?
To prevent employers from paying employees an unfairly low wage, the federal government sets a minimum wage rate. And, many states also set their own minimum wage rate. Unless you are exempt, you are entitled to be paid at least the minimum wage established in South Dakota.
Not every state sets its own minimum wage—some simply apply the federal minimum wage of $7.25 per hour. While some states even set the minimum wage lower than the federal minimum wage, the federal rate is the “floor” and all eligible employees must be paid at least the federal minimum wage.
Most employees are eligible to be paid at least the minimum wage, but some are not. Employees who are not eligible to be paid the minimum wage are sometimes called “exempt” employees.
Eligibility Exception 1: Outside Salespeople and Employees Earning Commissions or Tips
If you earn more than half your earnings in commissions and your total pay is greater than one and a half times the federal minimum hourly wage, you are exempt from the minimum wage. Likewise, if you are as an outside salesperson who works mainly away from your employer’s place of business, you are not entitled to minimum wage protections.
If you receive tips, you are also exempt from minimum wage laws but with certain conditions. See What Are My Rights to Tips?
Eligibility Exception 2: “White Collar” Employees
This exception covers executive, administrative, or professional employees. So, it is sometimes called the “white-collar” exception and applies to employees who are:
- paid a salary (as opposed to pay per hour worked) of at least $455 per week; and,
- in executive, administrative, or professional positions.
Your primary duty determines whether or not you fall into one of the white-collar exceptions. The primary duty of an “executive” employee is management of the employer’s business, which must include regularly supervising two or more full-time employees. An executive employee also either has the authority to hire and fire other employees, or great weight is given to their recommendations on those decisions.
The primary duty of an “administrative” employee is office (that is, nonmanual) work directly related to management or business operations of the employer. An administrative employee exercises discretion and independent judgment about significant matters in the office.
The primary duty of a “professional” employee requires one of two accomplishments: 1) advanced knowledge (usually gained through lengthy formal education) in a field of science or learning, or 2) invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.
Eligibility Exception 3: Farm, Seasonal, Student, and Other Employees
People employed in certain other types of work are also exempt from minimum wage protections. These include farm workers, seasonal or recreational workers (such as ski lift operators), certified student workers, casual babysitters, and a few other categories.
Minimum wage law is complex and it can be difficult to determine if you are covered by it. You may want to talk to a wage and hour lawyer. To find a lawyer, go to How Can I Find a Wage and Hour Lawyer in South Dakota?
What Are My Rights to Commissions
If you are employed in sales, you likely earn a commission (that is, a percentage of the price of goods or services sold). In order to be considered a true commission, your earnings must be based on the amount of your sales.
Most wage and hour issues for commissioned employees are covered by state law and differ from state to state. Check with the South Dakota Department of Labor and Regulation to see what regulations on commissions, if any, South Dakota has enacted.
When Are Commissions Earned?
In general, the commission agreement that an employee enters with the employer will determine when commissions are earned. Check with the South Dakota Department of Labor and Regulation to see what regulations on commissions, if any, South Dakota has enacted.
How Are Commission Advances Treated?
Your employer may pay you an advance (or “draw”) on commissions. This is a payment made to you to be charged against commissions you subsequently earn. If your commissions rarely exceed your advances, the employer’s commission formula may not be legitimate because your commissions should fluctuate based on your sales. Otherwise, the commission formula is more like regular pay, which could entitle you to minimum wage (discussed below) and overtime protections (see Am I Entitled to Overtime Pay in South Dakota?).
Some states address commission advances in their wage and hour laws. Check with the South Dakota Department of Labor and Regulation to see what regulations on commissions, if any, South Dakota has enacted.
How is Piecework Treated in South Dakota?
If you are paid by the piece, you are still entitled to the minimum wage that applies to you in South Dakota, unless you are an agricultural worker (in which case you may be exempt). To determine if you are being paid at least the applicable minimum wage, divide your total piece rate pay for any workweek by the total hours worked.
You are entitled to be paid your piece rate pay according to the applicable payday schedule for South Dakota.
What Are My Employer's Obligations in Paying My Final Paycheck?
Federal law does not require any particular deadline for paying a final paycheck. But some states require employers to pay your final paycheck within a set number of days after termination or resignation. And, these deadlines often differ depending on whether you were fired or resigned.
If you leave your job for any reason in South Dakota, whether by your own choice or your employer's action, your employer must pay your final paycheck on the next regular payday, or as soon as you return any property in your possession that belongs to your employer.
Regardless of any deadlines, your employer must pay you all wages you earned. If you believe a former employer has not paid you all wages you earned, see How Can I Find a Wage and Hour Lawyer in South Dakota?
South Dakota law does not require employers to include pay for accrued vacation time in final paychecks.
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