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Legal Questions About Employment

By Dianne Glasscoe Watterson, RDH, BS, MBA

Dear Readers,

With increasing regularity, readers ask me questions related to legal issues and employment. So, I've decided to address some of the more common questions here.

1. Is it legal to require me to come in on my day off and work on filling my schedule without pay? (I work on commission.)

No, it is not legal to expect any employee to work without the expectation of compensation. All work performed by an employee that benefits the business of the employer is required to be compensated. However, the employer is not required to compensate a hygienist at the same rate that he or she receives providing chairside hygiene services. Doctors can pay a different rate, sometimes called an "administrative rate" that is lower than what hygienists typically earn. Some doctors will pay an administrative rate for staff meeting time or time spent performing administrative tasks, such as calling patients to schedule appointments. It would be advisable to negotiate an appropriate administrative rate.

2. Is it legal for a doctor to request that I do a "working interview" for no pay?

The whole idea of the working interview for a dental hygienist is for a potential employer to see how a candidate interacts with patients and other staff members, and to gauge the quality of his or her work. One reason an employer might request that the working interview be uncompensated is to prevent the applicant from applying for unemployment benefits if he or she is not hired.

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However, to answer your question, it is not legal for a potential employer to have a candidate provide uncompensated services if the doctor is receiving fees from people being seen by the candidate. For example, if the candidate is asked to come in and work for a half-day and see regularly scheduled patients, the candidate must be compensated. If the doctor asks the candidate to come in and treat someone who is not expected to pay for those services, such as the doctor him-/herself, or another staff member, there is no requirement to compensate the candidate. It would be like asking someone to submit a writing sample before being hired for a writer's position.

3. Is it legal to require me to clock out when I do not have a patient in my chair?

Unfortunately, this question seems to pop up more and more. Evidently, some doctors are asking their hygienists to clock out to avoid paying them when they do not have a patient. According to the Fair Labor Standards Act (FLSA) website (http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER78.asp), the issue is whether the employee is "waiting to be engaged" or "engaged to be waiting." In the situation where a hygienist was expecting to see a patient and the patient did not show up, the hygienist is engaged to wait. According to the website when an "employee is waiting for work to do, for repairs to be made, etc., while on duty, he or she is engaged to wait and the time is hours worked." I do not know if this has been tested in the courts, but it appears that it is not legal to ask a hygienist to clock out while effectively "on duty." "Engaged to wait" time is compensable, since it is controlled by the employer. If a patient walks in without an appointment, the waiting hygienist would be expected to seat the patient and provide some level of care. So the hygienist is engaged to wait.

4. Is it legal for the doctor to pay the assistants for their lunch break but not me? I am a hygienist.

Employers are not mandated to pay employees for lunch breaks unless the employee would be engaged to work, such as answering the telephone or eating at one's desk in order to continue working. It does seem unfair to exclude the hygienist when the other staff members are being paid for the lunch break. Since hygienists typically are the highest paid staff members and often earn more than double the hourly rate of their coworkers, I guess doctors feel justified in treating them differently. My opinion is that it is disrespectful to treat staff members differently based on their position in the practice -- it leads to staff member resentment -- especially when hygienists are producers.

5. Is it legal for the doctor to send me home when my schedule falls apart? Several times, I have expected to work a full day, only to be told at lunch that, due to cancellations, my afternoon has been cancelled.

Actually, it is not illegal for employers to reduce working hours when there is not enough work. However, as a consultant, what I have seen is a situation where the scheduling coordinator is not being held responsible for keeping the schedule full. Sometimes, I think it's just easier to shuffle a few patients around and send the hygienist home, rather than get busy and get serious about the schedule. I wonder how the scheduling coordinator would feel if the doctor came up front and said, "You just take the rest of the day off -- unpaid. We don't need you this afternoon …" Doctors can be shortsighted. They may feel they are saving money by sending the hygienist home, but they may not consider the cost of lost production plus any undiagnosed restorative dentistry that may have been lost as well.

I posed the question to Tim Twigg, president of Bent Ericksen and Associates, and he stated that there is nothing to preclude employers from reducing hours. "In some states, however, there are laws regarding reporting time pay and split shift differential which could impact cutting an employee's hours. Reporting time pay requires employers to pay employees for a minimum of two hours and as much as half of their shift if they're sent home early, but only when the employee has worked less than half of his or her shift when this occurs. Split shift pay may be required when an employee's shift is split into two separate blocks of time and that time is separated by more than one hour.

"The other aspect, which is whether or not there are any salary agreements in place, will vary from practice to practice. Sometimes there is an agreement made, verbally or in writing, that states the employee will be paid a salary either per day or per week and wages will not be cut for any nonwork time, even though it is not required by any law for nonexempt employees. If this is the agreement between the two parties, then wages should not be cut for downtime or for going home early until or unless that agreement is modified."

6. Is it legal for the doctor to make me wait for my paycheck after he terminated my employment?

According to the Department of Labor website, employers are not required by federal law to give former employees their final paycheck immediately. Some states, however, may require immediate payment. If the regular payday for the last pay period an employee worked has passed and the employee has not been paid, the employee should contact the Department of Labor's Wage and Hour Division or the state labor department. DOL also has mechanisms in place for the recovery of back wages. http://www.dol.gov/compliance/topics/wages-other-last-paycheck.htm

7. Is it legal for the doctor to require me to take an extended lunch hour when a patient cancels and the business desk shuffles my patients around?

Again, I presume the doctor is trying to find a way to not pay you when you don't have a patient in your chair. I see two problems here. First, the business desk is asking patients to change their appointment times. That may or may not be OK with them. People often arrange their schedules to accommodate a dental appointment, and it may seem like an imposition to them to be asked to change. The other problem is the question of whether you are being engaged to wait or waiting to be engaged (see No. 3). The expectation is that you will work a full day, and the rules are being changed to fit the circumstance to the employer's advantage. My feeling is that you should be paid for the hour, even if it is at a different pay rate. It certainly seems disrespectful to you as a hygienist and unfair when no one else is being asked to do the same thing. My advice is to pose your question to an attorney who specializes in employment law.

I posed your question to Tim Twigg: "You bring up a good point with regard to waiting time. If an employee is getting hours cut by getting a longer lunch break, then the time spent at lunch must be for the employee's own purposes in order for it to be unpaid. If the employer requires him or her to stay at the practice and wait until a patient comes in, then that's not allowing the time to be spent as the employee chooses. This could be considered "waiting time" and, therefore, would need to be paid."

For more information on laws regarding labor issues, please consult the Department of Labor website for state-specific information regarding wage and hour laws. http://www.dol.gov/compliance/topics/wages.htm

You can visit the Fair Labor Standards Act website at http://www.dol.gov/whd/flsa/. 

Best wishes,
Dianne

DIANNE GLASSCOE WATTERSON, RDH, BS, MBA, is a professional speaker, writer, and consultant to dental practices across the United States. Dianne’s new book, "The Consummate Dental Hygienist: Solutions for Challenging Workplace Issues," is now available on her website. To contact her for speaking or consulting, call (301) 874-5240 or email dglass coe@northstate.net. Visit her website at www.professionaldentalmgmt.com.

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