Changes to Existing Law

The Department of Labor and Regulation shall, under the direction and control of10 the secretary of labor and regulation, perform all administrative functions except special11 budgetary functions (as defined in § 1-32-1) of the following advisory councils: (1)The state workers' compensation advisory council; and (2)The unemployment insurance reemployment assistance advisory council.

The monthly net income of each parent shall be determined by the parent's gross21 income less allowable deductions, as set forth in this chapter. The monthly gross income of each22 parent includes amounts received from the following sources: (1)Compensation paid to an employee for personal services, whether salary, wages,24 - 20 -HB 1035 commissions, bonus, or otherwise designated; (2)Self-employment income including gain, profit, or loss from a business, farm, or2 profession; (3)Periodic payments from pensions or retirement programs, including social security4 or veteran's benefits, disability payments, or insurance contracts; (4)Interest, dividends, rentals, royalties, or other gain derived from investment of capital6 assets; (5)Gain or loss from the sale, trade, or conversion of capital assets; (6)Unemployment Reemployment assistance or unemployment insurance benefits; (7)Worker's compensation benefits; and10 (8)Benefits in lieu of compensation including military pay allowances. Overtime wages, commissions, and bonuses may be excluded if the compensation is not a12 regular and recurring source of income for the parent. Income derived from seasonal13 employment shall be annualized to determine a monthly average income.

For the purpose of determining a household's income, the county shall consider14 all sources of income, including the following: (1)Compensation paid to household members for personal services, whether designated16 as gross salary, wages, commissions, bonus, or otherwise; (2)Net income from self-employment, including profit or loss from a business, farm, or18 profession; (3)Income from seasonal employment; (4)Periodic payments from pensions or retirement programs, including social security, veterans' benefits, disability payments, and insurance contracts; (5)Income from annuities or trusts, except for a trust held by a third party for the benefit23 of the minor children of the household;24 - 23 -HB 1035 (6)Interest, dividends, rents, royalties, or other gain derived from investments or capital1 assets; (7)Gain or loss from the sale, trade, or conversion of capital assets; (8)Unemployment Reemployment assistance or unemployment insurance benefits and4 strike benefits; (9)Workers' compensation benefits and settlements; (10)Alimony and child support payments received; and7 (11)School grants and stipends which are used for food, clothing, and housing but not for8 books and tuition. A federal income tax return is the preferred source for determining earnings. If a federal10 income tax return is not representative of current earnings, the county may also require pay stubs11 which include gross and net earnings.

No license granted under this title may be reissued until all taxes incurred by the10 licensee as a result of the operation of the licensed premises, including municipal and state sales11 and use taxes, state reemployment assistance or unemployment insurance tax, or any other state12 tax, are paid or are not delinquent. No license granted under this title may be reissued until all13 property taxes which are the liability of the licensee levied on the licensed premises are paid or14 are not delinquent. No license granted under this title may be reissued to an Indian tribe15 operating in Indian country controlled by the Indian tribe or to an enrolled tribal member16 operating in Indian country controlled by the enrolled tribal member's tribe until the Indian tribe17 or enrolled tribal member remits to the Department of Revenue all use tax incurred by18 nonmembers as a result of the operation of the licensed premises, and any other state tax has19 been remitted or is not delinquent.

Any license granted under this title may be transferred to a new location or to14 another person. If the transfer is to another person, the licensee shall show in writing, under15 oath, that the licensee has made a bulk sale of the business operated under the license. The bulk16 sale may be conditioned upon the granting of a transfer of the license. The transferee shall make17 an application exactly as an original applicant, and the application shall be acted upon in the18 same manner as an original application. No transfer of any license to another person may be19 granted until all taxes incurred by the transferor as a result of the operation of the licensed20 premises, including municipal and state sales and use taxes, state reemployment assistance or unemployment insurance tax, or any other state tax, are paid or are not delinquent. No transfer22 of any license to another person may be granted until all property taxes which are the liability23 of the licensee levied on the licensed premises are paid or are not delinquent. No transfer of any24 - 24 -HB 1035 license may be granted from an Indian tribe operating in Indian country controlled by the Indian1 tribe or from an enrolled tribal member operating in Indian country controlled by the enrolled2 tribal member's tribe until all use tax incurred as a result of the operation of the licensed3 premises by nonmembers, and any other state tax, has been remitted or is not delinquent. If the4 transfer is to a new location, the licensee shall make application showing all the relevant facts5 for the new location. The application shall be acted upon in the same manner as an original6 application. If a license is transferred, a fee of one hundred fifty dollars is required to continue7 the unexpired portion of the license.

For the purpose of establishing and maintaining free public employment offices, the22 secretary may enter into agreements with the railroad retirement board, or any other agency of23 the United States charged with the administration of an a state reemployment assistance or24 - 25 -HB 1035 unemployment compensation law, or with any political subdivision of this state, or with any1 private, nonprofit organization, and as a part of any such agreement the secretary may accept2 moneys, services, or quarters as a contribution to the employment service account.3

Terms used in this title mean: (1)"Annual payroll," the total amount of taxable wages paid by an employer during a6 calendar year for employment; (2)"Base period," the first four out of the last five completed calendar quarters8 immediately preceding an individual's benefit year. For an individual who fails to9 meet the qualifications of § 61-6-4 due to the receipt of temporary total disability10 payments under worker's compensation, the base period is the first four of the last11 five completed quarters preceding the disability if a claim for unemployment reemployment assistance benefits is filed within twenty-four months of the date on13 which the individual's disability was incurred. For an individual who fails to meet the14 minimum requirements of § 61-6-4 due to insufficient wages, the base period is the15 100 copies were printed on recycled paper by the South DakotaLegislative Research Council at a cost of $.167 per page.v Insertions into existing statutes are indicated by underscores.Deletions from existing statutes are indicated by overstrikes. - 2 -HB 1035 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 used2 in a subsequent base period; (3)"Benefit year," the one-year period beginning with the day on which a claimant files4 a valid new claim for benefits, or the one-year period beginning with the day on5 which a claimant files a valid new claim after the termination of his last preceding6 benefit year; (4)"Benefits," the money payments payable to an unemployed individual, as provided8 in this title; (5)"Calendar quarter," the period of three consecutive calendar months ending on March10 thirty-first, June thirtieth, September thirtieth, or December thirty-first; (6)"Contributions," the money payments to the state unemployment compensation fund12 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 which15 is established and operated exclusively for the purpose of providing services to one16 or more educational institutions; (9)"Employment office," a free public employment office, or branch thereof, operated18 by this state or maintained as part of a state or federal controlled system of public19 employment offices; (10)"Employment security administration fund," the employment security administration21 fund established by this title; (11)"Extended benefits," the benefits that are provided in §§ 61-6-49 to 61-6-66, inclusive;24 - 3 -HB 1035 (12)"Fund," the unemployment compensation fund established by this title; (13)"Hospital," an institution which has been licensed, certified or approved by the State2 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 graduation5 from a high school, or the recognized equivalent of such a certificate; and6 (b)Is legally authorized in this state to provide a program of education beyond7 high school; and8 (c)Provides an educational program for which it awards a bachelor's or higher9 degree, or provides a program which is acceptable for full credit toward such10 a degree, provides an educational program of postgraduate or postdoctoral11 studies, or provides an educational program of training to prepare students for12 gainful employment in a recognized occupation; and13 (d)Is a public or other nonprofit institution. Notwithstanding any of the foregoing provisions of this subdivision, all colleges and15 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, the19 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 imposed23 by the Federal Unemployment Tax Act and the reasonable cash value of24 - 4 -HB 1035 remuneration paid in any medium other than cash determined in accordance with1 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- to prescribe that a week is in, within or during that benefit year which includes the5 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 considered7 one calendar week and the days beginning January first another week; (19)"Weekly benefit amount," the amount of benefits an individual is entitled to receive9 for one week of total unemployment. An individual's weekly benefit amount10 determined for the first week of his benefit year shall constitute his weekly benefit11 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.

The governing body of any political subdivision may establish an unemployment23 insurance compensation fund. Expenditures from the fund shall be made only for payment of24 - 5 -HB 1035 reemployment assistance or unemployment insurance claims pursuant to the Federal1 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 be3 made without specific appropriations authority.

The term, employment, includes an individual's service, wherever performed within6 the United States, the Virgin Islands, or Canada, if: (1)Such The service is not covered under the reemployment assistance or unemployment8 compensation law of any other state, the Virgin Islands, or Canada; and9 (2)The place from which the service is directed or controlled is in this state.

As used in this title, the term ", employment", does not include service with respect12 to which reemployment assistance or unemployment compensation is payable under an13 unemployment compensation system established by an act of Congress. However, the14 Department of Labor and Regulation shall enter into agreements with the proper agencies under15 any such act of Congress, to provide reciprocal treatment to individuals who have, after16 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 potential18 rights to unemployment compensation under such an act of Congress, acquired rights to benefits19 under this title.

As used in this title, the term, employment, does not include: (1)Service performed during a calendar quarter in the employ of an organization exempt23 from income tax under section 501(a)(other than an organization described in 401(a))24 - 6 -HB 1035 or under section 521 of the Federal Internal Revenue Code, if the remuneration for1 such services does not exceed fifty dollars; or2 (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, or5 (b)By the spouse of a student, if the spouse is advised, at the time the spouse6 commences to perform the service, that this employment is included under a7 program to provide financial assistance to the student by the school, college8 or university, and that employment is not covered by any program of9 reemployment assistance or unemployment insurance, or10 (3)Service performed by an individual who is enrolled for credit at a nonprofit or public11 educational institution, which maintains a regular faculty and curriculum and has a12 regularly organized body of students in attendance at the place where its educational13 activities are carried on, as a student in a full-time program, which combines14 academic instruction with work experience, if the service is an integral part of that15 program and if the institution has so certified to the employer. This subdivision does16 not apply to service performed in a program established for or on behalf of an17 employer or group of employers.

As used in this title, the term, wages, means remuneration paid in a calendar year20 to an employee by an employer or the employer's predecessor for employment during any21 calendar year. The term includes remuneration in addition to the wages defined in this section22 which are subject to a federal law imposing a tax against which credit may be taken for23 contributions required to be paid into a state unemployment fund.24 - 7 -HB 1035 The term, wages, does not include remuneration of more than: (1)Seven thousand dollars, from January 1, 1983, to December 31, 2006, inclusive; (2)Eight thousand five hundred dollars, from January 1, 2007, to December 31, 2007, inclusive; (3)Nine thousand dollars, from January 1, 2008, to December 31, 2008, inclusive; (4)Nine thousand five hundred dollars, from January 1, 2009, to December 31, 2009, inclusive; (5)Ten thousand dollars, from January 1, 2010, to December 31, 2010, inclusive; (6)Eleven thousand dollars, from January 1, 2011, to December 31, 2011, inclusive; (7)Twelve thousand dollars, from January 1, 2012, to December 31, 2012, inclusive; (8)Thirteen thousand dollars, from January 1, 2013, to December 31, 2013, inclusive; (9)Fourteen thousand dollars, from January 1, 2014, to December 31, 2014, inclusive; and13 (10)Fifteen thousand dollars, on and after January 1, 2015. In this section, the term, employment, includes service constituting employment under any15 reemployment assistance or unemployment compensation law of another state.

If, in the judgment of the secretary of labor and regulation, the interests of the19 Department of Labor and Regulation established by this title are involved in any proposed or20 pending change in federal law or administrative policy pertaining to the program, the secretary21 may represent these interests to the delegation of this state in the federal Congress. The secretary22 may co-operate with the other state labor agencies through any association of such state agencies23 which has been or may hereafter be organized, when the interests of the states generally in their24 - 9 -HB 1035 reemployment assistance or unemployment compensation program are similarly involved.

The Governor shall appoint from a list submitted by the department a state18 unemployment insurance reemployment assistance advisory council, composed of men and19 women, including an equal number of employer representatives and employee representatives20 who may fairly be regarded as representative because of their vocation, employment, or21 affiliations, and of such any members representing the general public as the department may22 designate. Such The council shall aid the department in reviewing the unemployment insurance reemployment assistance program as to its the program's content, adequacy and effectiveness24 - 8 -HB 1035 and to make recommendations for its improvement. The advisory council shall meet as1 frequently as the department deems determines is necessary, but not less than twice each year. The advisory council shall make reports of its meetings which shall include a record of its3 discussions and its recommendations. The department shall make such the reports available to4 any interested persons or groups.

The unemployment insurance reemployment assistance advisory council shall be7 administered under the direction and supervision of the Department of Labor and Regulation8 and the secretary thereof, but shall retain the respective quasi-judicial, quasi-legislative, advisory, other nonadministrative and special budgetary functions (as defined in § 1-32-1) otherwise vested in them the council and shall exercise those functions independently of the11 secretary of labor and regulation.

The unemployment insurance reemployment assistance advisory council appointed14 pursuant to § 61-2-7.1 shall meet on call of the department and shall aid the department in15 formulating policies and discussing problems relating to the administration of this title and in16 assuring impartiality and freedom from political influence in the solution of such problems.

The department shall promulgate rules pursuant to chapter 1-26 necessary to secure3 to this state and its citizens all advantages available under the provisions of the Social Security4 Act that relate to reemployment assistance or unemployment compensation, the Federal5 Unemployment Tax Act, the Wagner-Peyser Act, and the Federal-State Extended6 Unemployment Compensation Act of 1970.

The department shall participate in any arrangements for the payment of9 compensation on the basis of combining an individual's wages and employment covered under10 this title with the individual's wages and employment covered under the reemployment assistance or unemployment compensation laws of other states which are approved by the12 United States secretary of labor in consultation with the state reemployment assistance or unemployment compensation agencies as reasonably calculated to assure the prompt and full14 payment of compensation in such the situations and which include provisions for applying the15 base period of a single state law to a claim involving the combining of an individual's wages and16 employment covered under two or more state reemployment assistance or unemployment17 compensation laws, and avoiding the duplicate use of wages and employment by reason of such18 combining.

Each employer's experience-rating account shall be charged with all benefits21 chargeable, as provided in this title, except extended benefits paid as provided in §§ 61-6-49 to22 61-6-66, inclusive, against wages paid for employment by the employer. However, no benefits23 paid on the basis of a period of employment may be charged to the experience-rating account24 - 10 -HB 1035 of any employer, except as provided in § 61-5-41, if the claimant: (1)Voluntarily separated without good cause attributable to the employer or the2 employment; (2)Was discharged or suspended for misconduct connected with the employment, or for4 conduct mandated by religious belief which belief cannot be reasonably5 accommodated by the employer; (3)Was discharged or suspended for inability or incompetence to successfully complete7 a ninety-day probationary period established between the employer and employee at8 the time of employment; (4)Earned total base period wages of less than one hundred dollars with one employer; (5)Is receiving benefits while in approved training authorized by § 61-6-21; (6)Performed services while incarcerated in a custodial or penal institution and12 terminated such employment because of his transfer or release from the institution; (7)Received benefits for unemployment directly caused by a major natural disaster14 declared by the president pursuant to section 410(a) of the Robert T. Stafford15 Disaster Relief and Employment Assistance Act, 42 U.S.C. § 5177, if the individual16 would have been eligible for disaster unemployment assistance with respect to that17 unemployment but for their the receipt of reemployment assistance or unemployment18 insurance benefits; (8)Received benefits for unemployment resulting directly from the reinstatement of20 another employee upon that employee's completion of service in the uniformed21 services as provided in 38 U.S.C. § 4303(13) as of January 1, 2005, or the completion22 of state active duty by members of the National Guard who are activated pursuant to23 a call from the Governor as provided by law; or24 - 11 -HB 1035 (9)Voluntarily separated to accompany a spouse who was reassigned from one military1 assignment to another. However, no relief of charges applies if the department determines that an erroneous3 payment has been made because the employer, or an agent of the employer, was at fault for4 failing to respond timely or adequately to the department's request for information relating to5 the payment of benefits. For the purposes of this section, an erroneous payment is a payment6 that would not have been made but for the failure of the employer or the employer's agent to7 fully respond to the department's request pursuant to § 61-7-5.

Any state of the United States of America shall have the right to may sue in the10 courts of South Dakota to recover any tax which may be owing to it for reemployment assistance or unemployment insurance contributions when the like right is accorded to the state12 of South Dakota by such that state, whether such the right is granted by a statutory authority, or13 as a matter of comity.

A person attending a high school, vocational school, college or university is16 considered principally occupied as a student if school attendance substantially reduces the17 opportunity for reemployment. A person who is principally occupied as a student is not entitled to may not receive unemployment insurance reemployment assistance benefits.

An individual is not entitled to any benefits for any week with respect to which or21 a part of which the individual has received or is seeking unemployment benefits reemployment assistance under an a reemployment assistance or unemployment compensation law of another23 state or of the United States. However, if the appropriate agency of such the other state or of the24 - 12 -HB 1035 United States finally determines that the individual is not entitled to the unemployment reemployment assistance benefits, this disqualification does not apply.

It is unlawful for any person to make a false statement or representation knowing4 it to be false or knowingly fail to disclose a material fact to obtain or increase any benefits or5 other payments under this title, or under an unemployment insurance law of another state, of the6 federal government, or of a foreign government, either for himself, herself the person, or any7 other person, or knowingly fail to report any change in circumstances which would affect the8 person's eligibility for unemployment reemployment assistance benefits or payments.

If an agency administering another reemployment assistance or unemployment11 compensation law in another state has overpaid benefits to an individual located in South12 Dakota, the Department of Labor and Regulation may, in its own name and acting as agent for13 such other agency, collect the overpayment by civil action and pay the net amount recovered to14 such the agency in the manner provided in §§ 61-5-59 to 61-5-66, inclusive. If benefits are15 currently payable to such the individual, the department may, with notice to the individual, pay16 as much of such the benefits to such the agency as are necessary to satisfy the individual's17 indebtedness to such the agency.

Any assignment, pledge, or encumbrance of any right to benefits which are or may20 become due or payable under this title is void except as provided in this section. The rights to21 benefits are exempt from levy, execution, attachment, or any other remedy provided for the22 collection of debt. Any benefits received by any individual, so long as the benefits are not23 mingled with other funds of the recipient, are exempt from any remedy for the collection of all24 - 13 -HB 1035 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 provided2 for in this section is void. The secretary of the Department of Labor and Regulation shall furnish information on4 individuals receiving unemployment insurance reemployment assistance benefits to the5 Department of Social Services in accordance with section 303(e) of the Social Security Act as6 amended by section 2333(b) of P. L. 97-5--August 13, 1981. The secretary may also furnish this7 information in accordance with section 13 of the Food Stamp Act of 1977 as amended by8 section 1535 of P.L. 99-198. The Department of Social Services determines periodically9 whether any of these individuals receiving unemployment insurance reemployment assistance10 owe child support obligations or an uncollected overissuance of food stamp coupons. Each new applicant filing for unemployment insurance reemployment assistance benefits12 shall disclose any obligation for child support payments in accordance with section 454(19) of13 the Social Security Act as amended by section 101(a) of P.L. 93-647, and may be required to14 disclose any obligation for uncollected overissuances (as defined in section 13(c)(1) of the Food15 Stamp Act of 1977) of food stamp coupons, to the Department of Labor and Regulation at the16 time of filing. If an individual disclosing child support obligations is eligible for unemployment insurance reemployment assistance benefits, the secretary shall notify the Department of Social18 Services. The secretary shall deduct from an eligible individual's unemployment insurance reemployment assistance benefit payment and pay to the secretary of the Department of Social21 Services: (1)The amount determined by agreement between the individual and the Department of23 Labor and Regulation; or24 - 14 -HB 1035 (2)The amount determined by agreement between the individual and the Department of1 Social Services; or2 (3)The amount determined by the Department of Social Services through legal3 processes. If an individual disclosing an uncollected overissuance of food stamp coupons is eligible for5 unemployment insurance reemployment assistance benefits, the secretary may notify the6 Department of Social Services. The secretary may also deduct from an eligible individual's7 unemployment insurance reemployment assistance benefit payment, and pay to the secretary of8 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 Labor11 and Regulation for administrative costs incurred by the Department of Labor and Regulation12 attributable to child support payment obligations and food stamp overissuance obligations being13 enforced by the Department of Social Services.

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's21 eligibility period: (1)The individual's benefit year having ended prior to such that week, has insufficient23 wages or employment, or both, on the basis of which the individual could establish24 - 15 -HB 1035 in any state a new benefit year that would include the week, or having established a1 new benefit year that includes the week, the individual is precluded from receiving2 regular benefits by reason of the provision in § 61-6-36, which meets the requirement3 of section 3304 (a)(7) of the Federal Unemployment Tax Act, or the similar provision4 in any other state law; and (2)Has no right for the week to reemployment assistance or unemployment benefits or6 allowances, as the case may be, under the Railroad Unemployment Insurance Act, the7 Trade Expansion Act of 1962, and such other federal laws as are specified in8 regulations issued by the United States secretary of labor; and9 (3)Has not received and is not seeking for the week unemployment benefits reemployment assistance under the unemployment compensation law of the Virgin11 Islands or Canada, unless the appropriate agency finally determines that the12 individual is not entitled to unemployment benefits reemployment assistance under13 the law for the week.

Any person filing a new claim for unemployment compensation reemployment assistance shall, at the time of filing the claim, be advised that: (1)Unemployment compensation Reemployment assistance is subject to federal income18 tax; (2)Requirements exist pertaining to estimated tax payments; (3)The person may elect to have federal income tax deducted and withheld from the21 person's payment of unemployment compensation reemployment assistance at the22 amount specified in the Federal Internal Revenue Code; and23 (4)The person may change a previously elected withholding status.24 - 16 -HB 1035 Amounts deducted and withheld from unemployment compensation reemployment assistance shall remain in the unemployment fund until transferred to the federal taxing2 authority as a payment of income tax. The secretary shall follow all procedures specified by the3 United States Department of Labor and the Internal Revenue Service pertaining to the deduction4 and withholding of income tax. Amounts shall be deducted and withheld under this section only5 after amounts are deducted and withheld for any overpayments of unemployment compensation reemployment assistance, child support obligations, food stamp over-issuances, or any other7 amounts required to be deducted and withheld under this title.