Are Non-Competes Enforceable for Therapists and Behavioral Health Staff in South Dakota?

It depends on who you are restricting.

The baseline in South Dakota is hostile: SDCL § 53-9-8 makes any contract restraining a lawful profession, trade or business void to that extent, except where §§ 53-9-9 to 53-9-12 allow otherwise.

One of those exceptions, SDCL § 53-9-11, is the section employers rely on for an employment non-compete.

Since July 1, 2023, though, a healthcare overlay has changed the math for licensed clinical hires.

In a contract entered into on or after that date, SDCL § 53-9-11.2 makes a provision that restricts a listed "practitioner" from practicing within their scope of practice after the job ends voidable — and the list names nearly every licensed behavioral health role.

The practical split: a therapist, counselor or behavior analyst covered by the list can attack the covenant under the statute, while unlicensed staff stay under the ordinary two-year rule (with one 2026 exception for developmental-disability services, covered below).

How South Dakota compares with non-competes nationally is covered in the parent guide.

The governing law is statutory, and it runs as a sequence.

SDCL § 53-9-8 voids any restraint of a lawful profession, trade or business to that extent, except as §§ 53-9-9 to 53-9-12 provide.

SDCL § 53-9-11 is the exception employers rely on: an employee may agree, at hiring or at any time during employment, not to engage in the same business or profession as the employer for up to two years after the agreement ends, and not to solicit existing customers within a specified county, a first- or second-class municipality, or another specified area for up to two years, if the employer still carries on a like business there.

SDCL § 53-9-11.2 then overlays the healthcare limit: a provision in a contract entered into on or after July 1, 2023 is voidable if it restricts a "practitioner," as defined in SDCL § 53-9-11.1, from practicing within their scope of practice after the employment or professional relationship ends.

A 2026 amendment, SL 2026, ch 196, adds a parallel voidability rule for contracts entered into on or after July 1, 2026 covering "community services providers" — covered in the next section, because it matters for ABA and developmental-disability employers.

Note what this page is and is not: its rule comes from the statute text.

The research for this page did not extend to how South Dakota courts have applied these sections, so the guidance here is statutory, and anything you plan to enforce deserves review by South Dakota employment counsel.

South Dakota's rule is profession-specific, so start by placing each hire on or off the list.

For SDCL § 53-9-11.2, "practitioner" expressly includes licensed social workers, psychologists, professional counselors and professional counselors-mental health, marriage and family therapists, addiction and prevention professionals, and licensed behavior analysts.

The same list covers prescriber hires: physicians, physician assistants, registered nurses, licensed practical nurses and certified nurse practitioners — so a psychiatrist or psychiatric nurse practitioner hire is covered too.

A clause that stops a covered hire from practicing in their scope after they leave is the clause the statute makes voidable.

Unlicensed staff sit differently.

RBTs, behavior technicians, case managers and peer specialists who are not licensed under one of the listed professions are not on the practitioner list, so their non-competes fall under the general SDCL § 53-9-11 rule: up to two years, with the customer non-solicit within a specified area.

Two boundaries matter when you draft.

First, voidable is not void: SDCL § 53-9-11.2 does not strike these provisions automatically — the statute's word is "voidable," meaning the clause can be set aside rather than being automatically a nullity.

Second, the 2026 amendment (SL 2026, ch 196) extends the same voidability, for contracts entered into on or after July 1, 2026, to provisions restricting a "community services provider" from employment in, or providing services to, individuals with developmental disabilities after the relationship ends.

SDCL § 27B-1-17 defines a community services provider as any person or entity, for-profit or not-for-profit, that receives compensation for providing services to persons with developmental disabilities.

Whether that reaches individual direct-support or ABA staff, or only provider organizations, is not settled by the sources read for this page — a question for your employment counsel if you staff DD services.

On their face, the guardrails are the statute's own terms.

Time: up to two years, and the agreement can be signed at hiring or at any time during employment.

Scope: the restraint the section describes is on engaging in the same business or profession as the employer's.

Area: the customer non-solicit runs within a specified county, a first- or second-class municipality, or another specified area named in the contract, and only while the employer still carries on a like business there.

The sections this page covers do not supply a reasonableness or "legitimate business interest" test on their face, and the research for this page did not extend to how South Dakota courts police a covenant that overshoots the two-year cap — reformed down or struck entirely is unresolved.

Treat two years as the ceiling the text gives you, keep any non-solicit inside the specified-area language, and run anything more aggressive past South Dakota employment counsel.

The client non-solicit is the clause South Dakota still gives you.

SDCL § 53-9-11 lets an agreement bar solicitation of existing customers for up to two years within a specified county, first- or second-class municipality, or other specified area — and only while the employer still carries on a like business there.

The practitioner rule leaves that intact: SDCL § 53-9-11.2 does not apply to provisions barring a practitioner from soliciting current patients or clients of the former employer, as long as the ban stays within § 53-9-11's area and two-year limits.

The statute goes further and defines the conduct: "soliciting" means a targeted affirmative act directed toward a patient or client — a clause can stop a departing therapist from recruiting your clients, but a practice cannot use it to stop the therapist from treating clients who seek them out on their own.

Two cautions.

Keep the clause inside the two-year, specified-area limits — overshooting takes you outside the carve-out.

And the research for this page read the statute, not a South Dakota decision applying its solicitation definition, so treat the line between an affirmative ask and a client's own choice to follow a clinician as a judgment your counsel should confirm.

Employee non-solicits — barring a departure from recruiting your staff — are a different instrument: the sections covered here address customers and clients, and how South Dakota treats co-worker non-solicits was not resolved by this research.

Our guide to non-solicitation clauses maps how the states differ and how ethics codes shape a client handoff.

Anchor each protection to what the statute actually allows.

For licensed practitioners, that is the client non-solicit drawn inside the two-year and specified-area limits — not a practice ban.

For unlicensed staff — RBTs, behavior technicians, case managers, peer specialists — the two-year non-compete under SDCL § 53-9-11 remains on the table.

Use the sale-of-practice opening when it applies: the voidability rule does not reach provisions tied to the sale of a practice, so a covenant connected to buying or selling sits outside the practitioner rule.

If you provide developmental-disability services, note that the community-services-provider rule covers contracts entered into on or after July 1, 2026 — review those templates with counsel before relying on any covenant.

Protect information as well as relationships.

Under the federal Defend Trade Secrets Act, business information — including compilations such as client lists — is a trade secret only if the owner takes reasonable measures to keep it secret and it has independent economic value from not being generally known.

Confidentiality terms in the employment agreement, plus controls on exporting caseload lists, protect you whatever a covenant does.

If the goal is recouping supervision or credential costs, a training repayment agreement is a separate instrument with its own rules — our guide to training repayment agreements covers how they work and which states restrict them; how South Dakota treats your specific wording is a question for your employment counsel.

And because the clauses above only matter if people stay, our guide to clinician retention covers what keeps clinicians and BCBAs in the seat.