Are Non-Competes Enforceable for Dentists and Dental Staff in South Dakota?

Split the payroll in two.

For your dental hygienists, dental assistants and front-office staff, the general rule governs: SDCL § 53-9-11 lets an employee agree, at hiring or at any time during employment, not to compete and not to solicit the employer's existing customers for up to two years from the end of the agreement, within a specified county, first- or second-class municipality or other specified area where the employer still does business.

A covenant drafted inside those lines is lawful.

An associate dentist answers to a second layer.

South Dakota's list of covered practitioners includes a dentist licensed under chapter 36-6A, so the state's health care non-compete rule reaches the associate agreement: a provision entered into on or after July 1, 2023 that restricts a dentist from practicing within their scope after the relationship ends is voidable at the dentist's option — the dentist chooses whether to be bound by it.

Two carve-outs sit outside that rule: covenants that take effect on the sale of a practice or an interest in one, and patient non-solicits that keep to § 53-9-11's area and two-year limits.

Where South Dakota sits among the other state approaches — outright bans, dentist-specific statutes, income thresholds — is covered in our guide to non-competes for dental staff nationally.

South Dakota's rule is statutory, and it comes in three layers.

The base layer, SDCL § 53-9-8, is the default: any contract restraining exercise of a lawful profession, trade or business is void to that extent, except as §§ 53-9-9 to 53-9-12 provide.

Everything enforceable lives in those exceptions.

The employment exception is SDCL § 53-9-11, and it writes its own limits into the text: an employee may promise not to compete, and not to solicit existing customers, for up to two years from the end of the agreement, within a specified county, a first- or second-class municipality, or another specified area where the employer still does business.

The promise can be taken at hiring or at any point during employment.

The third layer is the 2023 practitioner overlay — SDCL §§ 53-9-11.1 and 53-9-11.2 — which puts dentists under the state's health care non-compete rule: a post-employment practice restriction in a contract entered into on or after July 1, 2023 is voidable rather than void.

The statutes are what a practice drafts against — our research for this page surfaced no separate South Dakota case law to draft around — and we found no source spelling out how a dentist elects to avoid a covenant, so take anything contested to employment counsel.

South Dakota's health care rule turns on a closed list of 28 practitioner categories in SDCL § 53-9-11.1, and item 6 is "a dentist licensed in accordance with chapter 36-6A" — so the rule covers associate agreements.

The same closed list is why your other clinical staff are treated differently: there is no dental hygienist category and no dental assistant category on it, so their covenants stay under the general § 53-9-11 employee rule rather than the practitioner rule.

For a covered practitioner, SDCL § 53-9-11.2 makes a contract provision entered into on or after July 1, 2023 voidable if it restricts the practitioner from practicing — or otherwise providing professional services — within their scope of practice.

The word choice matters: voidable is not void.

The clause does not evaporate when it is signed or when the dentist leaves; the dentist holds the option to avoid it, so an associate who departs can decline to be bound.

Two edges matter when you draft.

The voidability rule applies by its text to contracts entered into on or after July 1, 2023, so it does not say how a covenant inside an older agreement is treated — put any pre-July 2023 associate contract in front of your employment attorney before you depend on it.

And since the associate holds the option, plan your retention and patient-protection strategy around the associate being able to avoid it.

How long the covenant runs, how wide an area it covers and when it can be signed: SDCL § 53-9-11 answers those questions in its own text, in years, named areas and signing windows.

Our research for this page surfaced no separate South Dakota judicial balancing test to build to, so drafting is a matter of staying inside the statutory text.

• Time. A covenant may run at most two years from the end of the agreement.
• Area. The restriction must be drawn to a specified county, a first- or second-class municipality, or another specified area — and the employer must still be doing business there.
• When it is signed. The agreement can be made at hiring or at any time during employment, so a covenant added mid-employment is not barred by the statute; the same two-year and area limits apply to it.

If you are looking in this statute for a legitimate-business-interest requirement, the area limit is the closest provision to it: a covenant that reaches beyond the territory where the practice actually operates does not fit § 53-9-11, and a restraint outside the statutory exceptions is void to that extent under § 53-9-8.

Name the county or municipality, keep the term inside two years, and tie the area to where the practice actually treats patients.

The patient non-solicit is the tool the practitioner rule leaves you.

SDCL § 53-9-11.2 does not reach a provision barring a dentist from soliciting the practice's current patients, provided the clause keeps to § 53-9-11's geographic limits and two-year cap.

In a contract signed on or after July 1, 2023, that is the difference between a clause the associate can avoid and one the practitioner rule does not reach.

The statute also defines the conduct: "soliciting" is a targeted affirmative act directed toward a patient of the former employer to convince them to move their care or business.

A patient who looks up your former associate and asks to follow them has not been solicited — a non-solicit reaches targeted solicitation, not a patient's own decision to move.

Hygienists, assistants and front-office staff fall back to the general statute, which allows a promise not to solicit the employer's existing customers on the same two-year and area limits.

How both kinds of clause are structured — and where other states draw the line — is covered in our guide to patient and staff non-solicits.

Confidentiality is the quieter protection.

The statutes on this page restrain practice and solicitation; they are not the mechanism for protecting schedules, fee lists or patient records.

Under the federal Defend Trade Secrets Act, business information — a patient list included — is a trade secret only if the owner took reasonable measures to keep it secret and it has independent economic value from not being generally known, and the owner of a misappropriated trade secret related to a product or service in interstate commerce can sue in federal court.

Even then, a DTSA injunction cannot simply bar someone from taking a new job: conditions on new employment must rest on evidence of threatened misappropriation, not merely on what the person knows.

For a departing dentist, the parts the statutes leave standing are the compliant patient non-solicit and the sale-of-practice carve-out — build protection from those and from tools that are not non-competes at all:

• Stop leaning on a dentist non-compete. In a contract entered into on or after July 1, 2023, the associate holds the option to avoid it — count on the tools below, not on the clause.
• Take the patient non-solicit you are allowed. Keep it inside the two-year cap and a § 53-9-11 area, with soliciting defined the way the statute defines it. That is the clause the practitioner rule does not reach.
• Reserve full covenants for staff and for sales. A § 53-9-11 covenant covering hygienists, assistants and office staff — two years or less, in a named county, first- or second-class municipality or other area where the practice still does business — fits the statute, and the practitioner rule does not reach covenants that take effect on the sale of a practice or an interest in one. That sale context is the one place a dentist's practice restriction sits outside the voidability rule.
• Protect information, not just territory. Confidentiality terms in writing at hire, individual logins, no bulk exports of patient or schedule data, credentials changed the day someone leaves — the trade-secret route described above only works if secrecy measures were actually in place.
• Be careful with repayment clauses. A training repayment agreement is a different lever from a non-compete, with its own legal limits — do not assume one is enforceable in South Dakota without legal review.
• Write the transition into the contract. A notice period, a plan for patients mid-treatment and an orderly records handoff protect continuity of care without telling anyone where they may work next.

And when you are hiring rather than restricting, the credential comes first — dentist licensure in South Dakota covers what an associate needs before day one.

For the other side of the table, our guide to dentist non-compete agreements covers the worker's view nationally.