Detailed Answer
In South Dakota, employers must maintain payroll and wage records for each employee under SDCL § 60-12-5. If your former employer refuses to provide your payroll records, you can still gather proof of lost wages through alternative methods and legal channels.
1. Review Available Personal Records
Start by collecting any personal documents that show your pay and hours worked:
- Old pay stubs or direct-deposit statements.
- Bank statements showing deposits from your employer.
- W-2 forms or IRS transcripts (Form W-2 or Wage and Income Transcript) from the IRS website.
- Personal calendars, emails or text messages referencing hours or shifts worked.
2. Send a Formal Written Request
Draft a written demand letter to your former employer requesting payroll records. Include:
- Your name, dates of employment and employee ID (if known).
- Specific records needed (pay stubs, time sheets, payroll registers).
- A deadline (e.g., 10 business days) for compliance.
- A reference to SDCL § 60-12-5 (employer recordkeeping requirement).
Keep a copy for your records and send via certified mail or another trackable method.
3. File a Complaint with the South Dakota Department of Labor and Regulation (DLR)
The DLR Wage and Hour Division enforces state wage laws. You can:
- Submit a wage claim online at dlr.sd.gov.
- Provide any documentation you collected.
- The DLR may investigate and compel your employer to produce records.
4. Use Court Procedures to Subpoena Records
If the DLR process is insufficient or you decide to pursue a lawsuit for unpaid wages, you can:
- File a claim in South Dakota Circuit Court for breach of contract or unpaid wages.
- Request a subpoena duces tecum to obtain payroll records directly from your employer or third parties (accountants or payroll companies).
- Use SDCL § 15-6-45 on subpoenas to enforce compliance.
5. Obtain IRS Wage and Income Transcripts
You can request a Wage and Income Transcript from the IRS online at irs.gov/individuals/get-transcript. This transcript shows:
- Your reported wages.
- Employer’s name and EIN.
6. Gather Third-Party Documentation
Other sources can support your claim:
- Co-worker affidavits confirming hours worked.
- Timesheet printouts from a timekeeping system if co-workers or supervisors can access them.
- Independent contractor or staffing agency records, if used.
Disclaimer: This article is for informational purposes only and is not legal advice. Consult a licensed attorney to address your specific situation.
Helpful Hints
- Document every step: date your requests and track communications.
- Keep copies of all written correspondence.
- Follow up promptly if deadlines pass without response.
- Review SDCL Chapter 60-12 for detailed state wage laws.
- Consider free or low-cost legal clinics if you cannot afford an attorney.