South Dakota's 1969 Minimum Wage Law set a one-dollar-per-hour minimum for workers 'over the age of seventeen' in listed industries including restaurants. Does coverage start when the worker turns seventeen, or when the worker turns eighteen? And does the law apply to car hops working at a drive-in?

Plain-English summary

The 1969 South Dakota Legislature passed Senate Bill #62, the state's first minimum wage law. Its operative clause prohibited employing any person "over the age of seventeen years" in any of a long list of industries (factory, workshop, mechanical or mercantile establishment, laundry, dry cleaners, hotel, hospital, motel, restaurant, construction, lumbering, mining, schools, packing house) at a wage less than one dollar per hour.

Representative Floyd Snyder of Watertown asked two questions about how the new law worked in practice.

First question: when did a worker become covered, on the seventeenth birthday or the eighteenth? The AG concluded that "over the age of seventeen years" meant the worker had reached the seventeenth anniversary of his birth (turned 17), not the eighteenth. The AG cited two interpretive sources: a Michigan double-indemnity case (Bay Trust Co. v. Agricultural Life Insurance Co., 279 Mich. 248) holding that "over age of sixty years" barred recovery once the insured turned sixty, and the common-law rule (People v. Stevenson, 245 NY Supp 2d 161) that a person "attains a given age on the day preceding the anniversary of his birth." Applying those authorities, a worker who had reached his seventeenth birthday was covered; the upper-end ambiguity that the words "over" suggested (eighteenth birthday) was rejected in favor of the lower reading.

Second question: did the law apply to car hops at a drive-in restaurant? The list of covered industries included "restaurant," and the AG concluded that a drive-in fit within that term. He cited cases from Louisiana (Stolpz v. McConnell), New York (Drucker v. Frisina), and Pennsylvania (Food Corporation v. Zoning Board of Adjustments of City of Philadelphia) defining "restaurant" broadly enough to include a drive-in or a self-service restaurant where the food was consumed in customer automobiles. Car hops in such establishments worked in a covered industry, so they were entitled to minimum wage once they reached seventeen.

The opinion did not address ancillary issues like enforcement, tips and gratuities (whether tip income could offset the cash wage), or what counted as "hours worked" for car hops during slow periods.

Currency note

This opinion was issued in 1969. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota's minimum wage has been amended many times since 1969; the rate is set by a different statutory framework today (currently linked to inflation under SDCL ch. 60-11 and an initiated measure) and is many times higher than the original one-dollar-per-hour. The covered-industries list has also been replaced by broader coverage. Federal minimum wage under the Fair Labor Standards Act (FLSA) typically governs where it provides higher protection. Workers and employers should consult current SDCL ch. 60-11 and the FLSA rather than the 1969 enactment.

What the opinion meant at the time

For South Dakota employers in covered industries, the opinion clarified the threshold age. The new one-dollar-per-hour floor kicked in at seventeen, not eighteen. Employers running businesses that hired teenage workers (restaurants, mercantile, school-related employment) had to bring all their seventeen-and-older workers up to one dollar per hour.

For drive-in restaurant operators in particular, the message was that the drive-in versus dine-in distinction did not exempt them from "restaurant" coverage. Car hops were covered employees, and the same minimum applied to them as to indoor servers. Operators could not pay car hops a separate sub-minimum on the theory that car hops were not "restaurant employees" in the traditional sense.

For teenage workers seventeen and over, the opinion was protective. Many had been working at sub-minimum wages on the theory that the new law's "over seventeen" language meant they had to wait until eighteen to qualify. The AG's reading gave them coverage one year earlier.

For sixteen-year-olds and younger, the opinion confirmed they were outside the law. The Legislature had drawn the line at seventeen; the AG was not free to extend coverage below that age. Sixteen-and-under workers in restaurants and other covered industries could still be paid less than one dollar per hour, subject to any other applicable child-labor regulations.

For the Watertown business community asking about car hops specifically, the opinion put a damper on a labor-cost-saving exemption. South Dakota drive-ins of that era were significant employers of teenage labor, and labeling car hops as a category outside "restaurant" coverage would have substantially reduced the new law's impact in the food service sector.

Common questions

Q: What if a car hop was sixteen but turning seventeen in two weeks, was the employer required to switch her to minimum wage on her birthday?
A: Yes, the day she turned seventeen, she became a covered worker. The next pay period had to reflect the one-dollar-per-hour floor for hours worked from her birthday forward. Hours worked before her birthday remained at her prior rate.

Q: Did the law require employers to keep payroll records to prove compliance?
A: The opinion did not address recordkeeping. The 1969 Minimum Wage Law presumably had an enforcement framework (state labor inspectors, complaint procedures, penalties for violations); the AG's opinion focused only on the two interpretive questions posed by Representative Snyder.

Q: What about tips, did they count toward the one-dollar minimum?
A: The opinion did not address the tip credit. South Dakota's later minimum wage statutes have varied on this point; the 1969 enactment did not contain a tip-credit provision in the language the AG quoted, but the broader text of SB #62 may have. The opinion implicitly assumes that the one-dollar-per-hour cash wage was the floor for car hops, without addressing whether reported tips might count against it.

Q: Did the listed industries cover every employer in South Dakota?
A: No. The 1969 statute named specific industries (factory, workshop, mechanical or mercantile establishment, laundry, dry cleaners, hotel, hospital, motel, restaurant, construction work, lumbering occupation, mining work, schools, packing house). Industries not on the list (notably agriculture, domestic service, and various small commercial categories) were outside coverage. Federal FLSA might have applied separately.

Q: What about a worker who was already eighteen, was there a higher rate?
A: No, the law set one rate: one dollar per hour for all workers seventeen and over in covered industries. Workers eighteen and above were not entitled to a higher rate under this statute, though their pay was not capped by it either.

Q: Was the opinion binding on courts?
A: No. The opinion was an AG interpretation, not a court ruling. Courts would have given it weight but were free to decide differently. The opinion's reasoning was consistent with mainstream statutory-construction principles, so it would likely have been followed.

Background and statutory framework

South Dakota was one of the later states to enact a state minimum wage law. By 1969, the federal Fair Labor Standards Act had been in place for over thirty years, but its industry and small-employer exemptions left meaningful gaps that a state minimum could fill.

The 1969 Senate Bill #62 picked a one-dollar-per-hour floor and applied it to a specific list of industries that the Legislature considered the most exploitation-prone for low-wage workers. The age threshold of "over seventeen years" was a compromise: full-coverage minimum wage for older teens and adults, while leaving younger teenage employment (which the Legislature presumably viewed as more often part-time, learning-oriented, or family-business) outside.

The two interpretive ambiguities Representative Snyder identified were standard. The "over seventeen" age phrasing was ambiguous between "having passed the seventeenth birthday" and "having passed the seventeenth full year of life" (i.e., turned eighteen). The Bay Trust Co. case from Michigan, dealing with the same "over age of sixty years" phrasing in an insurance context, supplied a useful interpretive precedent for the lower reading.

The "restaurant" coverage ambiguity for drive-ins reflected a 1960s phenomenon: drive-in restaurants with car hops who served customers in their automobiles. The traditional definition of "restaurant" assumed seated customers eating on the premises, and a drive-in's model deviated from that. Zoning cases like Food Corporation v. Zoning Board of Adjustments (where a Philadelphia zoning code applied "restaurant" to a drive-in) provided modern definitional precedent for treating drive-ins as restaurants.

Senate Bill #62 was the foundation of South Dakota's state minimum wage system. Later amendments have changed the rate, the industry list, the age threshold, and the enforcement mechanisms; the 1969 framework is no longer current law, but the opinion remains useful as a snapshot of how the original statute was construed.

Citations and references

South Dakota statutes:
- Senate Bill #62, 1969 South Dakota Session Laws (the 1969 Minimum Wage Law)

Out-of-state cases (cited as persuasive authority):
- Bay Trust Co. v. Agricultural Life Insurance Co., 279 Mich. 248, 271 NW 749 (Michigan) (interpreting "over age of sixty years")
- People v. Stevenson, 245 NY Supp 2d 161 (New York) (common-law rule on attaining age)
- Stolpz v. McConnell, 202 S 2d 451, 454 (Louisiana) (definition of "restaurant")
- Drucker v. Frisina, 219 NY Supp 2d 680, 681, 31 Misc 2d 469 (New York) (definition of "restaurant")
- Food Corporation v. Zoning Board of Adjustments of City of Philadelphia, 121 A 2d 94, 384 P 288 (Pennsylvania) (drive-in self-service restaurant qualifies as "restaurant" for zoning purposes)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1652
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2069-39.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

OFFICIAL OPINION NO. 69-39

Minimum Wage Law applies to those 17 and over. Car hops are covered by minimum wage

STATE OF SOUTH DAKOTA
OFFICE OF THE ATTORNEY GENERAL
April 21, 1969

The Honorable Floyd Snyder, Jr.
State Representative
Watertown, South Dakota 57201

Dear Representative Snyder:

We are in receipt of your request for an official opinion regarding Senate Bill #62 (Minimum Wage Law) passed by the 1969 Legislature.

The specific questions you wish answered are:

"1. Does a person become covered under the Act upon attaining the age of seventeen, or upon attaining the age of eighteen?"

"2. Is a 'car hop' covered by this Act?"

This Act provides that:

"No person over the age of seventeen years shall be employed in any factory, workshop, mechanical or mercantile establishment, laundry, dry cleaners, hotel, hospital, motel, restaurant, construction work, lumbering occupation, mining work, elementary or secondary school, or institution of higher learning, or packing house at a wage less than one dollar per hour."

"Over" means beyond or above, or in excess of the certain quantity or limit. In Bay Trust Co. v. Agricultural Life Insurance Co., 271 NW 749, 850, 279 Mich. 248, an insured died at the age of sixty years, two months, and ten days. The court held that a double indemnity clause in his life insurance policy which became inapplicable "over age of sixty years" barred his recovery on the policy because he was over the age of sixty years. The common law rule, which is followed in the absence of a statute, is that a person attains a given age on the day preceding the anniversary of his birth, People v. Stevenson, 245 NY Supp 2d. 161.

Therefore, the answer to your first question would be, the law is applicable to those persons who have attained their seventeenth anniversary birth date.

It is well established that a "restaurant" is an establishment where refreshments or meals may be procured by the public: a public eating place. Stolpz v. McConnell, 202 S 2d 451, 454 (Louisiana) Drucker v. Frisina, 219 NY Supp 2d, 680, 681, 31 Misc 2d 469. This definition is broad enough to encompass a "drive-in." In the case of Food Corporation v. Zoning Board of Adjustments of City of Philadelphia, 121 A 2d 94, 384 P 288, it was held that a drive-in, self-service restaurant was a "restaurant" for zoning purposes even though consumption of the food was to take place in automobiles parked upon the premises.

Accordingly, it is my opinion that "car hops" working in a drive-in restaurant would be covered under the Act if they have attained their seventeenth birthday.

Respectfully submitted,

Gordon Mydland
Attorney General