Disclaimer: The information provided in this article does not, and is not intended to, constitute legal or tax advice; instead, all information is for general information purposes only. This article contains links to both governmental and third-party websites. Such links are only for the convenience of the reader. Readers should contact their attorney, CPA, or qualified tax preparation specialist to obtain advice regarding any personal legal or tax matter. The following conversation is intended to alert dental health-care workers about employment practices regarding when and how wages are paid.
Getting paid fairly and on time should never be an issue, but sadly there are times when workers are left stranded. The following story is not unusual.
“I am in Massachusetts, and I worked for a short period of time in an office. My last day was three weeks ago. I left due to the doctor refusing to put me on payroll and wanting to continue to pay me as an independent contractor. I have not received my last paycheck and I have not gotten any response to my text messages and phone calls. What is my next step? Do I march in there and demand pay? Do I consult an attorney?”
Workday pay
Just like many other workplace issues, it’s a good idea to know where you stand as a worker when it comes to how you will be paid. Both the federal Department of Labor and state labor boards are focused on workers being paid fairly, correctly, and on time.1,2
The story told by the Massachusetts hygienist is disturbing. State payday laws vary widely but most states have laws that specify when workers must receive compensation for work. A review of individual laws reveals dramatic differences in when workers must be paid. Employers in Nebraska are free to designate the pay date, while businesses in Arizona must pay workers twice a month, with no more than 16 days between pay periods. Payday frequency in California and Michigan is based on the worker’s occupation. Your state may have even more complicated payday regulations.3
Know the laws on final pay
While workers must be paid, there are many variances when a final paycheck must be issued. Federal law requires employers provide employees with their final paycheck by the regular payday of the next pay period. Many states have laws that further define or regulate when an employer must provide a worker with their final check. There are also states that have more specific requirements, which override federal final pay regulations.4
The conversation becomes even more complicated when state statutes further subdivide the pay requirements based on how the relationship ended. Did the worker leave voluntarily, or were they laid off? The devil is in the details, and the consequences vary per state.5,6
Now what?
It is important to understand the terms of agreement if the work assignment is generated via a third party. The details regarding the nature of the relationship are critical. If an assignment is generated by a staffing agency, contact the agency immediately about any discrepancy in wages, delayed payment, or bounced checks. Services that claim to match workers with dental offices are typically not structured to become involved in payment issues.
Keep a record of all attempts to get paid. Documentation is the key. Create a dedicated file that includes copies of pay stubs, all emails and text messages that pertain to work hours, paydays, and paycheck envelopes that have date stamps. Maintain a written log of live conversations. Secure a copy of any employee-related documents or signed agreements, including a current copy of the employee handbook with all updates. Steps like this are simply good business and provide a legal track record of your attempt to be paid fairly and on time.
Snap a photo of all checks and pay stubs. Email the images to a dedicated professional email address that is specific to your work life. It could be something as simple as [email protected]. This practice becomes increasingly important when filing a complaint with a state labor board, hiring an attorney to help recover wages, or filing an SS8 form with the IRS or misclassified as an independent contractor. When relying on memory, it’s easy to leave out a key detail or two. There are many articles that detail the exact steps to take when it comes to the issue of misclassification and the steps someone can take to remedy the situation.7-11
Back to Massachusetts laws
Fortunately, the hygienist in the opening story works in the Commonwealth of Massachusetts, a state that takes an active role in protecting workers from unfair treatment. It is possible to file an online complaint about nonpayment of wages with the state labor board.12
If a Massachusetts employer wishes to treat someone as an independent contractor rather than an employee, the employer must show the work follows all three conditions listed below. This three-part test is crystal clear. Work performed by an independent contractor must be:13,14
1. Done without the direction and control of the employer
2. Performed outside the usual course of the employer’s business
3. Done by someone who has their own, independent business or trade doing that kind of work
Worker misclassification is a serious issue. For well over a decade, State Attorney General Maura Healey has taken a strong stand on misclassification. The Commonwealth’s Attorney General’s Fair Labor Division handles misclassification complaints. Reports can be filed online or by phone via the Fair Labor Hotline. Employers can face criminal enforcement and civil penalties in Massachusetts.13,14
In October 2019, the state announced a landmark settlement with Stynt, a Boston internet staffing platform that had repeatedly misclassified dental hygienists and other health-care providers as independent contractors. According to the terms of the settlement, Stynt agreed to make significant changes to its practices. The settlement requires all workers be treated as employees rather than independent contractors.15
Contacting the employer
In the case of the Massachusetts hygienist, the worker has made multiple attempts to get paid. Some people suggest making a live visit to the office to collect payment. This strategy can work, but common sense suggests that being loud or demanding may not bring the desired results. Others recommend leaving a scathing review on social media. While both these approaches may make the abused worker feel like she’s getting her just due, consider the potential unintended consequences. Today’s fragile world has led people to take actions that would have never been considered even a few years ago.
Could a loud and unhappy visit to pick up a check be considered threatening? Would someone on the staff call legal authorities claiming that you are disrupting business? If you choose to crank out your complaints on a keyboard for the entire world to see, will you get sued? Frivolous suits happen all the time. Despite the fact that the claims may not hold water, it will take time and money to fight a legal battle, not to mention the heartache involved.
Your reputation in the community
Trying to recover unpaid wages is an unpleasant task but sadly a necessary part of today’s workplace. One of the most critical things to consider is your long-term professional relationships. The dental community may look enormous, but in reality, it is a very small pond full of big fishes with long memories. In other words, keep your actions simple and your words free from emotion. You never know when and where you will bump into a former coworker or a former employer.
A bad reputation in the community can be hard to overcome and can take years to erase from people’s minds. So, think before you leap into action. Understand the consequences of whatever path you take. And the next time you agree to any type of work arrangement, make sure to get all of the specifics in writing.
References
1. Local offices. US Department of Labor. Updated March 16, 2021. Accessed April 9, 2021. https://www.dol.gov/agencies/whd/contact/local-offices#.UI70DMWHJ8F
2. State labor offices. Commissioners, directors, and secretaries. US Department of Labor. Last updated January 2021. Accessed April 9, 2021.https://www.dol.gov/agencies/whd/state/contacts
3. State payday requirements. US Department of Labor. Revised January 2021. Accessed April 9, 2021. https://www.dol.gov/agencies/whd/state/payday#foot20
4. Frequently Asked Questions. Question: I didn’t get my last paycheck. What can I do? US Department of Labor. Accessed April 9, 2021. https://webapps.dol.gov/dolfaq/go-dol-faq.asp?faqid=520
5. Wage and hour laws. Pay and record keeping. Accessed April 9, 2021. https://www.mass.gov/guides/pay-and-recordkeeping
6. Final paycheck laws by state. FindLaw. Last updated July 23, 2019. Accessed April 10, 2021. https://www.findlaw.com/smallbusiness/employment-law-and-human-resources/final-paycheck-laws-by-state.html
7. Guignon A. Blindsided by a 1099? Responding to IRS misclassification. RDH. March 4, 2020. Accessed April 10, 2021. https://www.dentistryiq.com/dental-hygiene/salaries/article/14169118/how-dental-hygienists-can-respond-worker-misclassification
8. Guignon A. Understanding the complexity of employment law. RDH. January 1, 2020. Accessed April 10, 2021. https://www.rdhmag.com/career-profession/article/14074404/understanding-the-complexity-of-employment-law-and-worker-rights
9. Form SS-8. Determination of worker status for purposes of federal employment taxes and income tax withholding. Internal Revenue Service. Revised May 2014. Accessed April 9, 2021. https://www.irs.gov/pub/irs-pdf/fss8.pdf
10. Instructions for Form SS-8. Internal Revenue Service. Revised May 2014. Accessed April 9, 2021. https://www.irs.gov/pub/irs-pdf/iss8.pdf
11. Form 8919. Uncollected Social Security and Medicare Tax on wages. Internal Revenue Service. Accessed April 9, 2021. https://www.irs.gov/pub/irs-pdf/f8919.pdf
12. Breaks and time off. File a workplace complaint. Accessed April 9, 2021. https://www.mass.gov/how-to/file-a-workplace-complaint
13. Guide to employer contributions to DUA. Independent contractors. Accessed April 9, 2021. https://www.mass.gov/service-details/independent-contractors
14. An Advisory from the Attorney General’s Fair Labor Division on M.G.L. c. 149, s. 148B 2008/1. Accessed April 9, 2021. https://www.mass.gov/doc/attorney-generals-advisory-on-the-independent-contractor-law/download
15. Staffing agency agrees to treat workers as employees in agreement with AG’s office. Office of Attorney General Maura Healey. February 24, 2020. Accessed April 9, 2021. https://www.mass.gov/news/staffing-agency-agrees-to-treat-workers-as-employees-in-agreement-with-ags-office
ANNE NUGENT GUIGNON, MPH, RDH, CSP, has received numerous accolades over four decades for mentoring, research, and guiding her profession. As an international speaker and prolific author, Guignon focuses is on the oral microbiome, erosion, hypersensitivity, salivary dysfunction, ergonomics, and employee law issues. She may be contacted at [email protected].
