1. What legal protection does South Dakota provide private sector employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time--for any reason or for no reason at all--under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.
Common Law Protections
South Dakota recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that contravenes a well-established public policy. An employee has a cause of action--in other words, the employee may sue--for wrongful discharge when the motivation for the discharge contravenes public policy.
To determine what constitutes public policy, South Dakota courts will look to statutes, constitutional provisions, and judicial decisions to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. a criminal statute). So, for example, because a South Dakota statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening public policy. In both situations, employees are protected from retaliatory discharges. Whistleblowers have also received protection under the public policy exception.
In addition, the South Dakota State Legislature has adopted narrow statutory protections for certain activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: discrimination, equal pay (wage discrimination), and wages.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that contravenes a clear mandate of public policy. Specifically, South Dakota courts have protected the following employee activities:
- Refusing to commit a criminal or unlawful act
- Filing a workers' compensation claim
- Reporting unlawful conduct to a supervisor or outside official (i.e. whistleblowing)
Whistleblowers have successfully invoked the public policy exception. The Supreme Court of South Dakota has stated that only whistleblowing that promotes the public good is protected. A whistleblower who is motivated by revenge or personal gain is not protected.
Abortion: An employee may not be retaliated against for not encouraging someone to get an abortion or for not presenting the abortion option in a job where such a question may regularly appear as part of their job. S.D. Codified Laws § 34-23A-11.
Abuse and Neglect (Disabled Persons): An employee may not be retaliated against for reporting abuse or neglect of a disabled person. S.D. Codified Laws § 27B-8-43.
Discrimination: An employee may not be retaliated against for filing a charge, testifying, or assisting in the enforcement of South Dakota's Human Relations Act. That Act prohibits discrimination on the basis of race, color, creed, religion, sex, ancestry, disability, or national origin. S.D. Codified Laws § 20-13-26.
Equal Pay / Wage Discrimination: An employee may not be retaliated against for making a charge, providing information, or testifying under South Dakota's equal pay laws, which prohibit wage discrimination on the basis of sex. S.D. Codified Laws § 60-12-21.
Public Employees: Public employees may not be retaliated against for reporting a violation of state law within their chain of command. S.D. Codified Laws § 3-6D-22.
Wages: An employee may not be discharged (or discriminated against) in retaliation for making a complaint that he has not been paid wages in accordance with South Dakota law (e.g. minimum wage). The complaint may be made to either the employer or the Department of Labor. Employees are also protected for instituting proceedings or testifying at a proceeding to enforce these wage laws. S.D. Codified Laws § 60-11-17.1.
3. How do I file a whistleblower or retaliation claim in South Dakota?
Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. For lawsuits based on a statutory provision, the complaint must be filed within 3 years of the retaliatory action, unless the specific statute specifies otherwise. For common law lawsuits, the applicable statute of limitations is uncertain, but likely would be at least 3 years. If you believe you have a claim, you should contact a lawyer.
Discrimination: An employee may file a complaint with the South Dakota Department of Labor, Division of Human Rights. The complaint must be filed within 180 days of the retaliatory action. If you believe you have a claim, you should contact the department immediately at:
South Dakota Department of Labor and Regulation
Division of Human Rights
700 Governors Drive
Pierre, SD 57501
Phone: (605) 773-4493
Fax: (605) 773-4211
Email: [email protected]
As an alternative to attempting to resolve the dispute through the department, an employee may elect to file a lawsuit in an appropriate court. An employee must still file a complaint with the department, but may request to proceed by lawsuit. The lawsuit must be filed within one year of the employee's election to proceed by lawsuit. If you elect to file a lawsuit, you should contact a lawyer immediately.