Uncompensated Hours

Dear Dianne,

About six months ago my boss made the decision to put me on commission. When he presented this to me, I had no part in the decision. He had obviously done the math and showed me what I could expect to make. I knew other hygienists who worked on commission, and they seemed to like the arrangement so I thought it might be a good thing. The doctor told me that if I did not have a patient, I was free to do whatever I wanted, which included going home or running errands.

Today, the doctor called me into his office and told me that he now expects me to work on recall at least three hours a week for NO pay. He said if my schedule is full then I should come in on my day off and work on recall. He said if I refuse I will lose my job. I was speechless!

Is this legal? Can he force me to work like this? I don’t know where to turn to find the right answers.

Dear Sheryl,

On the surface, it sounds like your boss is stressing out over paying you when you don’t have a patient in your chair. I would assume there have been some problems with down time in the hygiene schedule. If this is the case it should be addressed, but is a separate issue.

I have heard of doctors requiring staff members to attend staff meetings or courses uncompensated. I have also heard of doctors that require work pertaining to the practice to be done at home or on non-patient days, again with the expectation of no compensation.

It is blatantly illegal to require an employee to report to work expecting no compensation for any number of hours. I found this information on the Web site for the Fair Labor Standards Act:The amount of pay due an employee cannot be determined without knowing the total number of hours actually worked by that employee in each workweek. An employee must be paid for all of the time considered to be hours worked and all time that is hours worked must be counted when determining overtime hours worked.

If you are required to be at the office performing a duty, then the time you spend is compensable time, period.

Here is a partial list of compensable duties:

• Coffee and snack breaks
• Fire drills
• Grievance adjustment during time employee is required to be on premises
• Meal periods if employees are not relieved of duties, if not free to leave posts or if too short to be useful (less than half an hour)
• Medical attention on plant premises or if employer directs outside treatment
• Meetings to discuss daily operations problems
• Rest periods of 20 minutes or less
• Retail sales product meetings sponsored by employer
• Show-up time if employees are required to remain on premises before being sent home
• Standby time - remaining at post during lunch period or temporary shut down
• Suggestion systems
• Travel from preliminary instructional meeting to work site
• Waiting while on duty

There is also another category that includes time spent before, after, or between regular work hours that is compensable. It includes the following:

• Arranging or putting merchandise away
• Changing clothes, showering or washing if required by the nature of the work (such as a job with chemicals requires bathing for worker health)
• Civic or charitable work if requested by employer or controlled by employer or if required to be performed on employer’s premises
• Clearing cash register or totaling receipts
• Discussing work problems at shift change
• Distributing work to work benches
• Equipment maintenance before or after shift
• Homework under contract with employer
• Make-ready work, preparatory work necessary for principal activity
• On-call time if employee must stay on or near premises so as to have liberty restricted or cannot use time as pleases
• Physical exam required for continued service

From this information, you can see that any time spent in the office performing any number of office tasks is compensable. Also, time spent getting ready for work, stocking, etc., are compensable as well. These laws and standards were developed to prevent employers from taking advantage of their employees by requiring them to work uncompensated.

It is also very important that employers keep accurate records on their employees. FLSA requires no particular form for the records, but does require that the records include certain identifying information about the employee and data about the hours worked and the wages earned (see related sidebar). The law mandates that this information be accurate.

Working on a commission basis is considered “piecework” compensation under the law. If the doctor requires you to perform non-clinical duties such as calling patients to schedule appointments, he must pay you a mutually agreed upon rate for that time. Since you have been working on a commission basis for six months, you could find your true hourly rate by dividing the number of hours you work into the gross amount. However, the doctor is not required to pay you that same rate for office work versus what you make while seeing patients. This concept is called “different capacity work rate.” The same principle applies when being compensated for attending staff meetings or continuing education meetings.

The doctor would do well to consider how he would feel if he were an employee required to work “X” number of hours a week for no compensation or for significantly reduced compensation. No doubt, he would resent such an arrangement, as would anybody. Further, how can anyone be motivated to do his or her best work when that person feels the work is unreasonable and unfair? This is a no-win situation.

I have never felt that performing front office duties is a good use of a hygienist’s time. Not to say that hygienists should not help out at the front (or anywhere in the office) during downtime. Hygienists working on a daily or hourly rate should be willing to help anywhere they are needed when they are not actually chairside with patients. Commissioned hygienists are not obligated to do anything but chairside hygiene and related duties, but many commissioned hygienists help other staff members when the opportunity arises simply because they are team oriented.

Scheduling and maintaining the hygiene schedule is a front office function that should be part of a business assistant’s job description.

Hygienists are typically the highest paid staff members, and rightly so, because they are producers. In most situations, hygienists produce far more than they actually make in wages. Your situation is unfortunate, because it appears you have been singled out and burdened with unreasonable demands because of your high rate of pay. If the problem is a less-than-full schedule, attention needs to be placed at the source of the problem, which is scheduling protocol and maintenance.

If, after discussing the particular legalities of what you are being asked to do, your employer persists with his mandate, you may call 1-866-4-USA-DOL Monday through Friday during regular business hours to seek further assistance with this matter.

Best Wishes,
Dianne

About the Author

Dianne D. Glasscoe, RDH, BS, is a professional speaker, writer, and consultant to dental practices across the United States. She is CEO of Professional Dental Management, based in Frederick, Md. To contact Glasscoe for speaking or consulting, call (301) 874-5240 or e-mail [email protected]. Visit her Web site at www.professionaldentalmgmt.com.

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Basic Records That An Employer Must Maintain For An Employee

1. Employee’s full name and social security number
2. Address, including zip code
3. Birth date, if younger than 19 years
4. Sex and occupation
5. Time and day of week when employee’s workweek begins
6. Hours worked each day
7. Total hours worked each workweek
8. Basis on which employee’s wages are paid (e.g., “$6 an hour,” “$220 a week,” “piecework”)
9. Regular hourly pay rate
10. Total daily or weekly straight-time earnings
11. Total overtime earnings for the workweek
12. All additions to or deductions from the employee’s wages
13. Total wages paid each pay period
14. Date of payment and the pay period covered by the payment