What "Conditions of Employment" Are Negotiable for ESP Employees

SDCL* 3-18-3 establishes the right of public employees, through their bargaining representatives, to bargain (negotiate) in respect to "rates of pay, wages, hours of employment, and other conditions of employment."  The South Dakota Supreme Court, in Rapid City Education Association vs. the Rapid City School District, 376 NW2d 562 (SD 1985), established a three-prong test to determine whether a particular issue constituted a condition of employment on which the school districts must negotiate.  According to that test, a subject is a negotiable condition of employment only if:

1. it intimately and directly affects the work and welfare of public employees, and
2. it has not been pre-empted by statute or regulation, and
3. it is a matter on which negotiated agreement would not significantly interfere with the exercise of inherent management prerogatives pertaining to the determination of government policy. (e.g., matters directly related to the general charge, direction and management of the schools of South Dakota).

Evolving case law has found the following to constitute negotiable conditions of employment:

1. Salaries (including extra-duty salaries and step placement) 

Source- Specifically mentioned in SDCL ch 3-18 as negotiable; Lead Deadwood E. A. v. Lead Deadwood Sch. Dist. 40-1, DOL HF No. 10G, 21G, 18G, 10U, 1995/96; Wall E. A. v. Wall Sch. Dist. 51-5, DOL HF No. 5 G, 1996/97.

Signing bonuses/recruitment policies- Todd County E. A. v. Todd County School District, DOL HF 6 U, 2000/01.  SDCL 13-43-61 to 13-43-63 apply only to teachers.

2. Early retirement compensation

Source - Watertown E.A. v. Watertown Sch. Dist., DOL HF No. 14U, 1979/80. 

3. Grievance procedures

Source - Specifically mentioned in SDCL ch 3-18. Also- Spearfish E. A. v. Spearfish Sch. Dist., DOL HF No. 15U, 1976/77; Stanley Co. E. A. v. Stanley Co. Sch. Dist. 57-1, DOL HF No. 11U, 1978/79.

4. Insurance premiums

Source - Spearfish E. A. v. Spearfish Sch. Dist., DOL HF No. 18U, 1974/75.

5. Hours of duty

Source - Hours of employment specifically mentioned in SDCL ch 3-18.  Also- Kadoka E.A. v. Kadoka Independent Sch. Dist., DOL HF No. 20U, 1977/78; Kadoka E.A. v. Kadoka Independent Sch. Dist, DOL HF No. 3U, 1978/79.

6. Negotiations procedures

Source - Clear Lake E.A. v. Clear Lake Board of Ed., DOL HF No. 20U, 1974/75 (unofficial opinion). 

7. Payroll deductions
8. Extra-Duty compensation

Source - Attorney General Opinion 72-10; See also SDCL 3-10-8 authorizing such deductions.

Source - Watertown E. A. v. Watertown Sch. Dist., DOL HF No. 14U, 1979/80; Lead Deadwood E. A. v. Lead Deadwood Sch. Dist. 40-1, DOL HF No. 10G, 21G, 18G, 10U, 1995/96.

NOTE:  there are Fair Labor and Standards Act (FLSA) regulations that greatly impact these assignments – be sure to contact your UniServ Director for help in this area.

9. Personal leave

Source - Spearfish E. A. v. Spearfish Sch. Dist., DOL HF No. 18U, 1974/75.

10. Reduction in force

Source - Webster E.A. v. Webster Sch. Dist., 2001 SD 94, 631 NW2d 202.

11. Sick leave

Source - Spearfish E. A. v. Spearfish Sch. Dist., DOL HF No. 18U, 1974/75.  

The sources listed are solely to provide credibility to the claim of negotiability. It is best not to use them as levers to argue the negotiability of a particular proposal. If board representatives refuse to negotiate a subject, contact your UniServ Director to explore strategies to deal with the situation.

The following are subjects that have both non-negotiable and potentially negotiable areas. Certain management areas are non-negotiable because they either do not intimately and directly affect the work and welfare of public employees, they are preempted by statute or regulation, and/or they significantly interfere with the exercise of inherent management prerogatives concerning management’s power to determine governmental policy.  The employee areas are potentially negotiable since there are no definite legal rulings stating these areas are not negotiable.

The board may claim the following categories are not negotiable (i.e. management areas), however, the association may attempt to bargain the following under each category (i.e. employee areas):

1. Assignment- a date to be notified of assignment; assignment to be placed on any contract issued; and so forth
2. Extra duty assignments- a date to be notified of assignment; limit the number of years an employee will be involuntarily assigned to a position; have separate evaluations for extra-duty assignments that do not impact the regular contract; limit the number of work hours required beyond the normal work day or work week; and so forth

NOTE:  there are Fair Labor and Standards Act (FLSA) regulations that greatly impact these assignments – be sure to contact your UniServ Director for help in this area.

3. Student discipline and conduct- develop procedures/forms to be used in discipline matters; require notification of employee responsibilities, such as during a fight, threats, attacks, etc.; provide for all time lost and costs incurred due to student attacks be covered by the district above regular employee benefits; and so forth
4. Calendar- impact of board adopted calendar on salaries, working hours, working conditions, and so forth.

This certainly is NOT an exclusive listing of all conditions of employment that either are or are not subject to negotiation.  The list will continue to evolve and change on a case-by-case basis as determined by the Department of Labor, or by a court of law, applying the test set forth by the South Dakota Supreme Court.

It is important for you to contact your UniServ Director for guidance on negotiability and bargaining strategies. It is possible for a local association to lose certain bargaining rights by agreeing to certain provisions.  (See Legal Alert, 2023 revision.)

* SDCL refers to South Dakota Codified Law                                                                                                 ** DOL refers to Department of Labor