Wrongful Termination for Lawful Off-Duty Conduct: Tobacco Use and Privacy Rights in South Dakota

What you do in your own home after clocking out in Sioux Falls, Rapid City, or Aberdeen feels like it should be strictly private. Yet many South Dakota workers are shocked to learn that because the state follows a strong at-will employment doctrine, private companies can legally monitor and fire employees for a wide range of completely legal off-duty habits-with one major statutory exception carved out specifically for tobacco users.

While South Dakota law expressly shields employees who smoke cigarettes or use tobacco products off-premises during nonworking hours, other lawful off-duty activities-such as drinking alcohol on the weekend, posting controversial opinions on social media, or participating in political debates-receive far narrower legal protection. Knowing where South Dakota draws the line between protected privacy rights and permissible at-will termination is essential before challenging a firing.

Analyzing S.D. Codified Laws § 60-4-11: South Dakota's Off-Duty Tobacco Protection Law

Although S.D. Codified Laws § 60-4-4 generally allows employers to terminate at-will employees for any reason, the South Dakota Legislature enacted a specialized lawful-products statute to protect off-duty tobacco users. Under S.D. Codified Laws § 60-4-11, it is a discriminatory or unfair employment practice for an employer to terminate the employment of an employee due to that employee's engaging in any use of tobacco products off the premises of the employer during nonworking hours.

However, S.D. Codified Laws § 60-4-11 is not absolute. The statute sets forth specific limitations and carve-outs that every South Dakota worker must understand:

• Bona Fide Occupational Requirement (BFOR): An employer may ban off-duty tobacco use if the restriction relates to a bona fide occupational requirement and is reasonably and rationally related to the employment activities and responsibilities of a particular employee or group of employees, rather than to all employees of the company.
• Conflict of Interest Exception: A restriction is lawful if it is necessary to avoid a conflict of interest-or the appearance of a conflict of interest-with any responsibilities owed to the employer (for example, an executive spokesperson for a lung-health charity).
• Full-Time Firefighter Exclusion: Under S.D. Codified Laws § 60-4-11, the statutory protection explicitly does not apply to full-time firefighters.
• Health Insurance Surcharges Allowed: The statute explicitly permits employers to offer or use health, life, or disability insurance plans that make distinctions between employees based on the type or cost of coverage-meaning your employer cannot fire you for smoking off-duty, but can legally charge you higher health insurance premiums as a tobacco user.
• Workplace Smoking Bans Remain Valid: Under S.D. Codified Laws § 34-46-14, smoking is prohibited in enclosed workplaces and public places in South Dakota, and employers have full authority to ban all tobacco and vaping products on company property and in company vehicles.

The scope of the bona fide occupational requirement exception was tested before the state's highest court in Wood v. South Dakota Cement Plant, 588 N.W.2d 227 (SD Supreme Court 1999). In that case, an assistant kiln burner was fired after a urine screen detected nicotine in violation of his conditional hiring agreement prohibiting off-duty smoking. The court ruled in favor of the employer, holding that because kiln burners worked in an environment with airborne dust and toxic gases where smoking heightened respiratory health risks, the off-duty smoking ban applied to that specific job group satisfied the bona fide occupational requirement exception under S.D. Codified Laws § 60-4-11.

Other Lawful Off-Duty Activities: What Is and Isn't Protected in South Dakota

Unlike states such as North Dakota or Colorado that protect all lawful off-duty conduct, South Dakota's statutory shield in S.D. Codified Laws § 60-4-11 applies strictly to tobacco products. Here is how South Dakota law treats other common off-duty activities:

Legal Off-Duty Alcohol Consumption

Because S.D. Codified Laws § 60-4-11 covers only tobacco, a private South Dakota employer does not violate that statute by firing an at-will employee for off-duty alcohol consumption-for instance, if an employee is photographed drinking at a bar in Deadwood or Sioux Falls or receives an off-duty DUI arrest. However, clinical alcoholism may qualify as a protected disability under the South Dakota Human Relations Act, S.D. Codified Laws § 20-13-10, and the federal Americans with Disabilities Act, 42 U.S.C. § 12114, which protects employees seeking rehabilitation treatment while still allowing employers to hold alcoholic workers to the same job performance and conduct standards as other employees.

Social Media Posts and Free Speech

Many workers mistakenly believe the First Amendment prevents private employers from firing them over Facebook, TikTok, or X posts made off the clock. Constitutional free speech protections restrict only government employers (such as city, county, or state agencies in Pierre). A private employer in South Dakota can generally terminate an at-will employee for controversial, offensive, or brand-damaging social media posts. The crucial exception is Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, which protects both union and non-union employees who engage in protected concerted activity online-such as discussing wages, unsafe working conditions, or scheduling policies with coworkers.

Political Affiliation and Voting Rights

Political affiliation is not a protected class under S.D. Codified Laws § 20-13-10 for private-sector jobs. However, South Dakota criminalizes employer voter intimidation. Under S.D. Codified Laws § 12-26-13, it is a Class 2 misdemeanor for an employer to enclose political mottoes or arguments in pay envelopes, post workplace notices threatening to close down or reduce wages if a particular ticket or candidate is elected, or otherwise threaten employees with discharge to influence their political opinions or voting actions. Firing an employee for refusing to succumb to unlawful workplace voting coercion can support a public policy wrongful discharge claim under principles established in Johnson v. Kreiser's, Inc., 433 N.W.2d 225 (SD Supreme Court 1988).

Common Law Invasion of Privacy in South Dakota

When an employer goes beyond public observation and snoops into your private off-duty life-such as hacking personal email accounts, installing hidden cameras in private changing areas, or conducting unauthorized surveillance inside your home-you may have a tort claim for invasion of privacy. In Roth v. Farner-Bocken Co., 667 N.W.2d 651 (SD Supreme Court 2003), the court ruled in favor of the employee after a supervisor opened and disseminated mail containing the employee's private legal documents, affirming that South Dakota recognizes the tort of unreasonable intrusion upon the seclusion of another.

Step-by-Step Process in South Dakota

If you were fired in Sioux Falls, Rapid City, Aberdeen, or Pierre for off-duty tobacco use or another protected off-duty activity, follow these steps to assert your rights:

Step 1: Preserve Termination Notices and Policy Documents

Save all text messages, emails, nicotine screening results, social media screenshots, and termination letters showing the exact reason your employer gave for discharging you. Under S.D. Codified Laws § 60-4-11, proving that off-duty tobacco use was the motivating reason for termination-or that the employer applied a blanket ban to all employees rather than a specific occupational group-is critical.

Step 2: Evaluate Whether a Bona Fide Occupational Exception Applies

Compare your actual job duties against the standard in Wood v. South Dakota Cement Plant, 588 N.W.2d 227 (SD Supreme Court 1999). If your employer banned off-duty smoking across the entire company solely to lower health insurance costs rather than charging a smoker premium differential, the termination likely violates S.D. Codified Laws § 60-4-11.

Step 3: File for Reemployment Assistance and Track Lost Wages

Apply for unemployment benefits with the South Dakota Department of Labor and Regulation, Pierre or at local offices such as the South Dakota Department of Labor and Regulation, Sioux Falls and the South Dakota Department of Labor and Regulation, Rapid City. Keep meticulous records of all lost paychecks, health insurance expenses, and retirement contributions, because S.D. Codified Laws § 60-4-11 caps recovery at lost wages and benefits up to the time of trial.

Step 4: File an NLRB Charge if Fired for Protected Social Media Activity

If your termination stemmed from social media posts discussing pay equity or workplace safety with coworkers, file an unfair labor practice charge using Form NLRB-501, FED, National Labor Relations Board, Charge Against Employer within 6 months of the firing.

Step 5: File a Civil Lawsuit in South Dakota Circuit Court

Unlike standard discrimination claims under S.D. Codified Laws § 20-13-10, S.D. Codified Laws § 60-4-11 explicitly states that the sole remedy for a person aggrieved by an off-duty tobacco termination is to bring a direct civil suit for damages in circuit court. Your attorney can file your complaint and Form UJS-232, South Dakota, Unified Judicial System, Case Filing Statement in the Second Judicial Circuit Court, Minnehaha County, Sioux Falls, the Seventh Judicial Circuit Court, Pennington County, Rapid City, the Fifth Judicial Circuit Court, Brown County, Aberdeen, or the Sixth Judicial Circuit Court, Hughes County, Pierre, and serve the employer with a formal summons pursuant to S.D. Codified Laws § 15-6-4(b).

Step 6: Litigate Damages Up to the Time of Trial

Because S.D. Codified Laws § 60-4-11 strictly defines the remedy as lost wages and benefits up to the time of trial (and invasion of privacy claims under Roth v. Farner-Bocken Co., 667 N.W.2d 651 (SD Supreme Court 2003) require proving severe intrusion), consulting our directory of US attorneys to hire an experienced South Dakota employment lawyer is the best way to maximize your financial recovery.

How Much Does it Cost in South Dakota?

Here is what you can expect to pay when pursuing an off-duty conduct or privacy lawsuit in South Dakota:

• Circuit Court Filing Fees: Filing a civil suit under S.D. Codified Laws § 60-4-11 or for common law invasion of privacy in a South Dakota Circuit Court costs $72 under the Unified Judicial System fee schedule (comprising a $25 base clerk fee under S.D. Codified Laws § 16-2-29(3)(a), a $40 court automation surcharge under S.D. Codified Laws § 16-2-39, and a $7 county law library fee under S.D. Codified Laws § 14-6-1).
• Service of Process Fees: Serving the summons and complaint via county sheriff or process server costs $50 to $95.
• NLRB Charge Filing Fee: Filing an unfair labor practice charge over protected social media speech with the National Labor Relations Board is $0 (free).
• Lawyer Fees: South Dakota employment attorneys typically charge $150 to $350 for a case evaluation, $225 to $400 per hour for hourly litigation, or 33% to 40% on a contingency fee basis, plus roughly 6.2% in South Dakota state and municipal sales/excise tax on legal services.

How Long Does the Process Take?

Deadlines for off-duty wrongful termination claims in South Dakota depend on the legal theory involved:

• NLRB Social Media Claims: Must be filed within a strict 6-month statute of limitations under 29 U.S.C. § 160(b).
• Invasion of Privacy & Tort Claims: Personal injury and privacy torts in South Dakota are subject to a 3-year statute of limitations under S.D. Codified Laws § 15-2-14.
• Statutory Tobacco Claims (S.D. Codified Laws § 60-4-11): Civil actions based on a liability created by statute (or breach of employment contract) generally fall under a 3-year to 6-year limitations window under S.D. Codified Laws § 15-2-13, though acting within months of termination is vital.
• Court Timeline: Once filed in a South Dakota Circuit Court, a civil lawsuit typically takes 9 to 18 months to reach a settlement or trial date.

Frequently Asked Questions (FAQ)