ENTITLED An Act to prohibit certain restrictions in employment contracts.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That 53-9-11 be AMENDED:
53-9-11. Except as otherwise provided in section 3 of this Act, an employee may agree with an employer at the time of employment or at any time during employment not to engage directly or indirectly in the same business or profession as that of the employer for any period not exceeding two years from the date of termination of the agreement and not to solicit existing customers of the employer within a specified county, first- or second-class municipality, or other specified area for any period not exceeding two years from the date of termination of the agreement, if the employer continues to carry on a like business therein.
Section 2. That 53-9-11.1 be AMENDED:
53-9-11.1. For purposes of section 3 of this Act, a practitioner means:
(1) A physician licensed in accordance with chapter 36-4;
(2) A physician assistant licensed in accordance with chapter 36-4A;
(3) A paramedic or emergency medical technician licensed in accordance with chapter 36-4B;
(4) A respiratory care practitioner licensed in accordance with chapter 36-4C;
(5) A chiropractor licensed in accordance with chapter 36-5;
(6) A dentist licensed in accordance with chapter 36-6A;
(7) An optometrist licensed in accordance with chapter 36-7;
(8) A podiatrist licensed in accordance with chapter 36-8;
(9) A registered nurse authorized to practice in accordance with 36-9-3;
(10) A certified registered nurse anesthetist authorized to practice in accordance with 36-9-3.1;
(11) A licensed practical nurse authorized to practice in accordance with 36-9-4;
(12) A certified nurse practitioner or certified nurse midwife licensed in accordance with chapter 36-9A;
(13) A certified professional midwife licensed under 36-9C;
(14) A physical therapist licensed in accordance with chapter 36-10;
(15) A nutritionist or dietician licensed in accordance with chapter 36-10B;
(16) A pharmacist licensed in accordance with chapter 36-11;
(17) An audiologist or hearing aid dispenser licensed in accordance with chapter 36-24;
(18) A social worker licensed in accordance with chapter 36-26;
(19) A psychologist licensed in accordance with chapter 36-27A;
(20) An athletic trainer licensed in accordance with chapter 36-29;
(21) An occupational therapist licensed in accordance with chapter 36-31;
(22) A professional counselor or a professional counselor-mental health licensed in accordance with chapter 36-32;
(23) A marriage and family therapist licensed in accordance with chapter 36-33;
(24) An addiction and prevention professional licensed or certified in accordance with chapter 36-34;
(25) A massage therapist licensed in accordance with chapter 36-35;
(26) A genetic counselor licensed in accordance with chapter 36-36;
(27) A speech language pathologist licensed in accordance with chapter 36-37; and
(28) A behavior analyst licensed in accordance with chapter 36-38.
Section 3. That chapter 53-9 be amended with a NEW SECTION:
Notwithstanding 53-9-11, a provision of a contract, entered into on or after July 1, 2023, is voidable if it restricts a practitioner, as defined in 53-9-11.1, from practicing or otherwise providing professional services in accordance with the applicable scope of practice, after the conclusion of the practitioner's employment or after the dissolution of a partnership or other form of professional relationship.
This section does not apply to any contractual provision that:
(1) Is effective upon the sale of a practice or interest in a practice; or
(2) Restricts a practitioner from soliciting current patients or clients of the former employer, partnership, or other professional relationship, provided the solicitation complies with the geographic and temporal limitations as referenced in 53-9-11.
The term, soliciting, as used in this section, means a targeted affirmative act, directed toward any patient or client of the practitioner's former employer, partnership, or other professional relationship, for the purpose of convincing the patient or client to transfer the patient or client's care or business to the practitioner or to the practitioner's new employer, partner, or professional relationship.
An Act to prohibit certain restrictions in employment contracts.
I certify that the attached Act originated in the:
Chief Clerk
Speaker of the House
Attest:
Chief Clerk
President of the Senate
Attest:
Secretary of the Senate
File No. ____ Chapter No. ______
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Received at this Executive Office this _____ day of _____________,
2023 at ____________M.
By for the Governor
The attached Act is hereby approved this ________ day of ______________, A.D., 2023
ss. Office of the Secretary of State
Filed ____________, 2023 at _________ o'clock __M.
Secretary of State
By Asst. Secretary of State
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