South Dakota News & Analysis

  • SD requires more than conclusory allegations before case can go to trial

    Employers often feel they're walking through a minefield when dealing with employees who can use discrimination law as a tool to prevent them from managing their businesses and dealing with problems in a reasonable manner. The U.S. 8th Circuit Court of Appeals (which governs the federal courts in South Dakota) recently showed there are limits to employees' ability to use the laws as a shield against justifiable disciplinary action.

  • Individual coverage HRAs probably not option for 2020

    On his very first day in office, President Donald Trump issued an Executive Order instructing federal agencies to lessen the Affordable Care Act's (ACA) burden on the organizations and individuals who were subject to its requirements. More than two years later, the ACA is limping along, but the Trump administration is still working to carry out that order.

  • How to identify and minimize employee burnout

    You may have seen reports recently that the World Health Organization (WHO) has classified employee burnout as a diagnosable medical condition. While that's not exactly accurate, the group has expanded its definition of the term in its latest edition of the International Classification of Diseases.

  • They're back! Responding to 2019 no-match letters

    In March 2019, the Social Security Administration (SSA) began mailing educational correspondence (EDCOR)—also known as employer correction request (ECR) notices and formerly known as "no-match letters"—to employers that filed W-2 forms for 2018 containing at least one mismatched name and Social Security number (SSN). You should not ignore the notices. You must ensure you're complying with your obligations to resolve the errors. Failure to comply could result in an I-9 audit by U.S. Immigration and Customs Enforcement (ICE) and/or penalties from the IRS. To avoid noncompliance, you should act quickly.

  • Agency Action

    DOL takes more steps to advance apprenticeships. The U.S. Department of Labor (DOL) has announced a Notice of Proposed Rulemaking (NPRM) along with monetary awards in its continuing effort to expand apprenticeships. In the announcement, the DOL said the NPRM would establish a process for the agency to advance the development of high-quality, industry-recognized apprenticeship programs (IRAPs). A 2017 Executive Order created the Task Force on Apprenticeship Expansion, which developed recommendations on how to best expand the apprenticeship model. The new NPRM reflects key recommendations from the task force. The DOL also announced awards totaling $183.8 million to support the development and expansion of apprenticeships for educational institutions partnering with companies that provide a funding match component. The agency also will make available an additional $100 million for efforts to expand apprenticeships and close the skills gap.

  • Employee may not use denial of reinstatement to challenge termination

    Employees who are fired and do not file a timely discrimination charge may try to open a back door to litigate their termination by filing a new application for a position or requesting reinstatement to get around the time bar. The 8th U.S. Circuit Court of Appeals (which governs the federal courts in South Dakota) recently rejected that tactic.

  • Court affirms $250K in punitive damages despite jury awarding only $1 in actual damages

    The 8th Circuit recently upheld a $250,000 punitive damages award against an employer that didn't have an antidiscrimination policy and ignored several complaints about racial harassment.

  • DOL updates opinion on independent contractors for the gig economy

    Under the Trump administration, the U.S. Department of Labor (DOL) has taken a decidedly industry-friendly approach to the independent contractor analysis. If there was any doubt before, that was made clear by its recent issuance of a whopping 10-page opinion letter examining the nature of the relationship between a virtual marketplace company (think Uber) and the "gig" workers they employ (e.g., Uber drivers).

  • Supreme Court ruling raises stakes in Title VII claims

    If an employee files a timely Equal Employment Opportunity Commission (EEOC) charge, can she later raise new discrimination allegations after the filing deadline has passed? That's the issue addressed in a new decision from the U.S. Supreme Court. Spoiler alert: The answer is no, unless the employer—or more accurately, its attorney—doesn't notice. To understand the Court's ruling, it's helpful to understand the EEOC's role in discrimination claims.

  • Behind the times: Is rounding employees' time outdated?

    Time clocks have long been an accepted method for tracking how much time an employee puts in. Many time clocks track time in tenths of an hour or quarter hours. However, time clocks are being replaced by more sophisticated time-tracking systems, such as electronic and computer time trackers, which are better equipped to track the exact number of minutes an employee is on the job. Nevertheless, employers continue to wonder whether they should round an employee's time and whether rounding time worked is legal. This article discusses some of the best practices for rounding if you are going to do it.