I'm a hygienist, not an independent contractor

I am a hygienist with 38 years of experience in dental hygiene and a bachelor's degree. I have worked with general dentists, periodontists, and oral surgeons.

by DIANNE GLASSCOE WATTERSON, RDH, BS, MBA

Dear Dianne,

I am a hygienist with 38 years of experience in dental hygiene and a bachelor's degree. I have worked with general dentists, periodontists, and oral surgeons. I'm proud of my skills and I try to deliver excellent care to every patient I treat.

Recently, after 20 years of working in the same office, my dentist and employer was forced to retire and sell the practice due to health reasons. A new dentist took over and fired me and the senior assistant within the first week, without speaking more than two words to us. He never explained his reasons to me. I was informed by text message through the office manager that he could not afford to keep us. I find it appalling that he did not have the decency to meet with me in person and explain his reasons to me as one professional to another.

I also learned that he had reclassified me as an "independent contractor" and planned to send me a 1099 form. It didn't matter that I was doing the exact same job I had been doing for the last 20 years. Suddenly, I went from employee to independent contractor because he said so.

I went to an interview recently where I was informed that the pay structure would be a combination of salary per day plus commission on my hygiene production. I was also told I would be paid as an independent contractor. I asked if there would be any benefits and I was told no, since I would be an independent contractor. I informed her I did not believe we are independent contractors. The office controls the hours, our schedules, the fees, furnishes all the equipment and instruments. We have to practice the way they want us to. They decide how much time we get for each patient. How on earth does that make us independent contractors?

I'm so upset with the trend I see in dental offices on this issue. The hygiene market is saturated in my area, and hygienists are working at dental assistant salaries and don't complain for fear of losing their jobs. They are putting up with this situation because there are 200 applicants waiting to take their place. The dentists are fully aware of this and are taking advantage of it. The hygienists don't realize that as independent contractors, their employers are not contributing to their Social Security or Medicare. If they are injured, there are no workers' compensation benefits, and if they get laid off, there are no unemployment benefits. The dentists want to have their cake and eat it too. I'm so disgusted by all this that I am seeking a career change. If I stay in dental hygiene, it will be in an institutional setting.

What I would like to know is how the dentists are getting away with this. Where are the IRS auditors? The law explains the difference between employee and independent contractor, and in the cases that I have been seeing, they are in clear violation. What can we do, as hygienists, to protect ourselves from the degrading way we are being treated?

Southern Hygienist

Dear Southern Hygienist,

First, you are correct that you are not in any way an independent contractor when you work in an office owned by a dentist or corporation. To classify you as such is a misclassification that could result in stiff penalties for the employer. Any employer who knowingly misclassifies employees risks fines and possible jail time.

Let's examine the differences that exist between an independent contractor and an employee. According to the IRS, a person is considered a common law employee when:

  1. The business has the right to direct and control the worker. The business does not have to actually direct or control the way the work is done – as long as the employer has the right to direct and control the work. The employer controls the hours worked by the employee.
  2. The business controls how the worker is paid, whether expenses are reimbursed, and who provides tools/supplies, etc. Independent contractors are usually paid a flat fee and can have large sums of money invested in equipment and unreimbursed expenses. Independent contractors often advertise, maintain a visible business location, and are available to work in the relevant market.
  3. The business relationship continues, and the work is performed is a key aspect of the business. According to IRS.gov, "Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no ‘magic' or set number of factors that ‘makes' the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another. The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in coming up with the determination."

It is clear from the IRS description that hygienists do not qualify as independent contractors. It could be argued that some non-owner dentists are employees as well.

There's another problem: every employer has an obligation to deal with employees under the concept of "good faith and fair dealing." Some would argue that, given your longevity with the practice, the doctor did not deal with you fairly. The "at-will" doctrine states that either the employee or the employer retains the right to end the employment relationship with no liability. However, exceptions to this doctrine have emerged over the past few years. One of those exceptions is the "covenant of good faith" exception. The exception has been interpreted to mean that employer personnel decisions are subject to a "just cause" standard and that terminations made in bad faith or motivated by malice are prohibited. The termination of a long-term employee with a good work history has been deemed dealing in bad faith by the courts. You should consult the local labor board and/or an attorney who specializes in labor law.

The Obama administration has set in motion some initiatives to identify employers who misclassify employees, so the radar has been turned on. The misclassification of employees costs the federal government a substantial amount of money. Employers who engage in this practice do so to avoid paying taxes, Social Security, health insurance, overtime pay, and other benefits to which employees may be entitled. In 2009, a Government Accountability Office report found that Uncle Sam was losing billions in unpaid payroll taxes. A Virginia study discovered that the state was cheated by more than $28 million for the year 2010 alone by employers misclassifying employees.

The misclassification of employees is unethical and illegal. Unfortunately, the current economic downturn has caused many employers to find ways to cut costs. If your employer has misclassified you, the most important thing you can do is keep detailed records of the type and hours of work you performed. It might be helpful for you to keep a journal of the hours you work, the tasks you perform every day, and how you are supervised while doing that work. You may notify the IRS by filing Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, downloadable at http://www.irs.gov/pub/irs-pdf/fss8.pdf. RDH

All the best,
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.

References

1. http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-(Self-Employed)-or-Employee%3F

More RDH Articles
Past RDH Issues
More in Career & Profession