Are you on or off the clock?

My dual careers in dental hygiene and human resources often lead me to many discussions with employers and fellow dental hygienists on compensation questions. Employment law, which can be very complicated, governs many of the rules regarding compensation. Laws can vary by state; in some cases, they are based on the number of employees hired by the employer.

Another observation that I’ve made is that—particularly in smaller, independently run offices—there may not always be a designated expert with the knowledge, experience, and understanding of all that goes in to navigating the muddy waters of employment law. Compensation is one of the key areas that can create conflict and dissatisfaction among employers and employees alike. The goal of this article is to discuss some of the more common situations in which confusion or disagreements around compensation tend to occur.

In order to understand the specifics around certain pay practices, one must have a basic understanding of the terms exempt and nonexempt. The Fair Labor Standards Act (FLSA) classifies jobs as either exempt from minimum wage and overtime regulations or nonexempt. The way a job is classified has nothing to do with the employer or employee’s choice or job title. It is also not based on whether the employer elects to pay the employee a salary or by the hour. It is based on the actual duties of the job in accordance with FLSA guidelines. Job duties are evaluated against very specific exemption categories.

Employees who are considered exempt are exempt from the requirement to be paid overtime pay for hours worked in excess of 40 each week and are paid on a salaried basis, not upon hours worked. Most hygienists are classified as nonexempt. As such, they must be compensated at least the minimum wage for each hour worked. Nonexempt employees are also entitled to overtime pay.1

Misclassification of an employee as exempt can be costly to employers in fines, taxes, and back pay. In areas where there is question, it is best to speak with an employment lawyer or with a representative from the Department of Labor.

The information in this article is geared toward those hygienists who are nonexempt, the majority of our profession.

Is it OK to work off the clock?

If your workday is from eight to five, but you come in earlier to prepare or to attend a morning huddle, are you still on the clock? What if you dismiss your last patient at five, but have charts to finish or have office maintenance to perform, such as taking out the trash or cleaning your lines? What if while waiting for an exam, you end up running 15 minutes into your lunch break? Are you still on the clock then? What about work that you may do outside of the office? For example, I have heard of hygienists sharpening instruments at home. Is that considered working time?

According to the law, if you are a nonexempt employee, the answer is yes as long as you are performing necessary work. There is often more to our work than seeing patients. Depending on the schedule, this other important work may not be possible during the workday. All of the examples mentioned above are considered paid time.

This doesn’t mean that one should “milk the clock,” as that is as equally wrong as not getting compensated. The best working relationships are based on teamwork, mutual respect, and understanding. Good time management is essential, and using any possible downtime well is also important. There are times when this extra work will need to be done outside of the patient time. It is important for both employers and employees to keep communication open and to realize that it is illegal to have nonexempt employees who are working off the clock, even if they volunteer to do so.2

If it is work that is essential to the job and needs to be done, time and resources need to be allotted for it. Nonexempt employees working off the clock can result in action requiring the employer to pay back wages, as well as possible fines and penalties.

What if there isn’t enough work?

If you report to work and the schedule has fallen apart, you can be sent home. Whether you are to be paid for reporting in will either be dependent upon a wage agreement between the employer and employee or the laws of your state. A reporting law would require nonexempt employees to potentially be paid a set number of hours even if sent home early due to lack of work. Not all states have reporting laws, but Massachusetts, for example, does mandate employers to pay three hours of reporting pay in certain situations.3

This topic lends itself to a discussion of the concepts of engaged to wait versus waiting to engage.

Engaged to wait/on-duty waiting time

These are situations in which employees are waiting for work to do. While on duty, they are engaged to wait, and the time is considered hours worked. Waiting is part of the job. Examples provided by the Department of Labor are as follows: a receptionist who reads a book while waiting for customers or telephone calls; a messenger who works on a crossword puzzle while awaiting assignments; and a waitperson in a restaurant waiting for customers to arrive. The time of inactivity is usually unpredictable and usually of short duration.4

One could reasonably argue that when a patient does not show up, the hygienist is engaged to wait. I would also say this “on-duty waiting time” holds true for the occasion when a hygienist is told upon arrival or on the way in to work that the first patient cancelled.

Waiting to engage/off-duty waiting time

Situations that may not be considered hours worked would need to meet all of the following criteria: the employee is completely relieved from duty; the periods are long enough to enable your employee to use the time effectively for his or her own purposes; the employee is definitely told in advance that he or she may leave the job; and the employee is advised of the time that he or she is required to return to work.5

Whether the time is long enough will be dependent on fact and circumstance. A hygienist might be told the night before to come in later the next day because the first patient cancelled. What about the cases where there may be several holes in the schedule? These are areas where the water can get a little muddy. It is not illegal to reduce the work hours when there is not enough work, but this situation does lend itself to some additional questions. What are you are doing during that time? Are you helping answer the phone, assisting in the sterilization area, working on hygiene department tasks that can be tough to squeeze in during patient time, or are you in the break room? Remember that employers and employees can have feelings of inequity regarding compensation, so we need to be mindful of our choices and our responsibilities.

Another consideration is: Why are the holes in the schedule? Who is accountable for the appointment book? It can be very unfair if someone finds it easier to shuffle a few patients around and cancel the hygienist’s time versus taking the time to attempt to fill the schedule. Is the practice really saving money sending a hygienist home when one considers the lost production and the possibility of increased employee turnover when hygienists cannot afford to continually be sent home?

One way the hygienist could spend the waiting time working is to become part of the solution by keeping the schedule full. Running recall and unscheduled appointment reports, contacting patients, and helping to come up with systems to keep the hygiene department working is an excellent use of the downtime. The practice of treating people fairly and respecting their time goes a long way in employee satisfaction, increased work performance, and retention.

Working interviews

The topic of working interviews covers a lot of ground that would be an article in and of itself. For the purpose of this article, it is important to know that working interviews during which you are seeing patients are considered time worked. If you are earning revenue for the office, you are an employee for that day and are to be treated and paid accordingly.

I would strongly encourage ironing out the pay details with the prospective employer in writing well in advance of the working interview day.

On-the-job training and meetings

Sometimes, either at the request of a newly hired employee or at the request of the office, there may be a period of on-the-job training or shadowing. If the shadowing or training is a requirement of the office, it is to be compensated. This is also true for current staff required to participate in training or meetings, even if the meeting is held during a lunch hour or outside of normal working hours.6

A lower administrative rate of pay could be applied, but I would strongly caution employers to avoid this. It certainly doesn’t speak to a mutually rewarding employment experience when the employee’s first working experience at the office is at a discounted pay rate. How committed will an employee be to the message at a mandatory meeting or training where their earnings are being docked? I strongly believe that when employees are treated well, they are more inclined to perform well and even go above and beyond expectations.

The same can be said for us; being fair, respectful, professional, and helpful can put us in a better position with employers as well. Mutual understanding, communication, and respect go a long way.

Meal periods

Although the FLSA does not require breaks or meal periods, individual states may have requirements.7 For example, in Massachusetts, employers are required to provide a minimum of a 30-minute break for every six hours worked. The break is unpaid, and employees are to be relieved of all duties during that time.8 Specific employers may also have policies in place regarding break times, even in states where it is not mandated.

The policies should be in writing and applied consistently. In general, breaks less than 20 minutes are within reason and are generally considered compensable. For example, it is unreasonable for an employer to ask people to clock out to use the restroom, stretch their legs, or grab some water or a snack. Given the mental and physical demands of a career in the dental field, my recommendation is that employers give employees a definitive break after so many hours on the job. It is not only in the best interest of the employee, but the patients as well.

Working on days off

Can my employer require me to come in on my day off? Perhaps your office is doing an educational presentation at a senior center, and you were told that your attendance is expected. Regardless if it is done on your day off or during a day you are normally scheduled, it is considered paid time for the nonexempt employee required to attend. An employer cannot retaliate against you if you are not paid and choose not to go. Perhaps, however, you decide as a team of dental professionals that you want to do outreach in the community, the volunteerism has nothing to do with the office, and you are not required to go. There is no requirement for compensation in that case.

What about the case of a team meeting or course that is scheduled for your day off or if you are needed for coverage? In general, there is nothing illegal about an employer asking you to work on a day off.10 Of course, your time is to be compensated. Ideally it is best to give employees advance notice of these situations. This is another of those times where a solid, mutually respectful relationship is important. It is always best to be a team player where you can.

If there is a conflict that may preclude you from coming in on your day off (child care or another job, for example), it is best to have these discussions ahead of time so that solid backup plans can be put into place with minimal disruption and conflict within the team.

Paid time off

Paid time off refers to vacation time, sick time, and personal days. It is not mandated under federal law. Individual states, however, may have laws in place to provide for some paid time off for vacation, sick time, or both. Further, employers may have policies in place to provide paid time off as a benefit.

Can your employer limit how and when you use the time? State laws and employer policy play into this area.11 Employees have a right to take earned time, but at the same time employers have a right to review requests based on business needs. Communication, fairness, and compromise are key. It is not appropriate for employers to make it essentially impossible for employees to use the time before it expires. Depending upon policy or state law (whichever is more generous), some unused time may possibly roll over into the next year. It’s important to know how your own situation is set up and plan accordingly. There are also some differences regarding what happens when you leave an employer but have unused but accrued vacation time. Some states have laws that require the time to be paid upon termination, where others do not.11

Due to the widely varied geography of this audience, this article has only discussed federal law. Individual states have their own laws that cannot provide any less than what the federal allows. It is always best to check your state department of labor for information specific to where you are working.

Further, individual employers may have policies and benefits in place that are more generous than what the law provides. I stress to employers and employees alike that all policies should be in writing and discussed and reviewed as soon as a potential employee is offered a position. In the case of changes to policy, existing employees should be notified in advance of any changes going in to effect.

As much as it is important for business owners to understand the rules and regulations, we need to become empowered, knowledgeable employees as well.

Please note that this article is for general informational purposes only and is not providing legal advice. You should contact an attorney or your state labor board to obtain advice with respect to an issue or problem.

References

1. U.S. Department of Labor Wage and Hour Division. Fact sheet #17A: Exemption for executive, administrative, professional, computer & outside sales employees under the Fair Labor Standards Act (FLSA). https://www.dol.gov/whd/overtime/fs17a_overview.pdf. Updated July 2008.

2. Off-the-clock references. U.S. Department of Labor website. https://www.dol.gov/whd/offtheclock/index.htm.

3. Massachusetts Hours Worked. Employment Law Handbook website. www.employmentlawhandbook.com/wage-and-hour-laws/state-wage-and-hour-laws/massachusetts/hours-worked/#8.

4. On duty waiting time – elaws FLSA hours worked advisor. United States Department of Labor website. https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenER78.asp.

5. Off duty wating time – elaws FLSA hours worked advisor. United States Department of Labor website. https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenER79.asp.

6. Lunt D. Fair Labor Standards Act – When meeting and training time is considered hours worked. Employment Law Handbook website. https://www.employmentlawhandbook.com/flsa/fair-labor-standards-act-when-meeting-and-training-time-is-considered-hours-worked/. Published June 4, 2013.

7. Breaks and meal periods. United States Deparment of Labor website. https://www.dol.gov/general/topic/workhours/breaks.

8. Breaks and time off. Commonwealth of Massachusetts website. https://www.mass.gov/guides/breaks-and-time-off.

9. Can I be fired for refusing to work on a scheduled day off? FreeAdvice Legal website. https://employment-law.freeadvice.com/employment-law/firing/fired-for-taking-days-off.htm.

10. Questions and answers about the Fair Labor Standards Act (FLSA). United States Department of Labor website. https://www.dol.gov/whd/flsa/faq.htm.

11. Final pay: Getting your last paycheck. Workplace Fairness website. www.workplacefairness.org/final-pay#3.