General contractors or contractors who sub-contract work to independent contractors should remember to have the sub-contracted individuals complete the South Dakota Affidavit of Exempt Status form.

The South Dakota Affidavit of Exempt Status, when signed, creates a presumption that an individual independent contractor is not an employee for the purposes of the state’s Workers Compensation Act. Few things to note about the affidavit:

• The affidavit only creates a rebuttable presumption; the presumption is not bulletproof to additional fact finding during a claim, audit or legal proceeding
• The affidavit may not be completed by independent contractors who could be considered an employer or by owner-operators
• The SFM Independent Contractor checklist does not replace the affidavit and does not create the same presumption

The affidavit creates the strongest presumption of employee v. independent contractor status. Without this affidavit, SFM must start with the presumption that the individual is an employee of the insured/contractor/general contractor.

Due to these factors, it is critical that where appropriate the affidavit is completed, signed, and returned to SFM for documentation purposes. Having these on file will speed up employee v. independent contractor determinations on both claims and audits.

The Affidavit of Exempt Status, as well as other workers’ compensation forms, can be found on the South Dakota Department of Labor and Regulation website .

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