Employment practices that require dental workers to clock in during downtime

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Warning: The information provided in this article does not constitute and is not intended to constitute legal or tax advice; instead, all information is for general informational purposes only. This article contains links to government and third-party websites. Such links are for the convenience of the reader only. Readers should contact their lawyer, CPA, or qualified tax preparation specialist for advice regarding any personal legal or tax matters.

The following conversation is intended to alert dental health workers to employment practices regarding employees who need to clock in.

The following question emerges very regularly: “Is it legal for an employer to force you to check in for a long lunch?” For example: My patient after lunch cancels and the company staff cannot or did not fill the free time. I’m supposed to have a long lunch and not come back until the next patient. The Amy office assistants don’t have to clock in. They are given “assigned secondary work”. “

For clarification purposes, the following discussion is only for dental health workers who are paid as W4 / W2 employees. Workers who are paid as independent contractors (W9 / 1099) are not protected by the Federal Department of Labor because they are not classified as employees. The subject of working as an employee versus working as an independent contractor is not covered in this article. To learn more about this problem, see my article “The Risks of Being Misclassified as an Independent Business Owner”.

Discussions full of anguish

For obvious reasons, this scenario generates long, heated discussions. This ever-growing business practice creates an emotional roller coaster for many employees and puts a worker’s financial well-being in limbo. The range of responses goes from a firm no, to the suggestion to step down, to a sad resignation that the salary planned for the day will be insufficient.

While these situations typically create high levels of anxiety, emotional comments about fairness do not determine whether a practice is legal or not. It is essential that all employees understand how the law affects these practices.

Federal law

The Wages and Hours Division of the Federal Department of Labor was created to deal with employee wage issues. The federal law that covers employee wages is known as the Fair Labor Standards Act (FLSA). Federal law requires that employees be paid for all time spent on the job. Some dental offices pay dental hygienists only for clinical time, which is often defined as time spent providing direct patient care. There are hygienists who are expected to work around the clock while doing jobs such as cleaning and installing, writing clinical notes, reviewing patient records, or attending office meetings or meetings. .1 While the worker must be compensated, a lower wage can be used, but it must be at least the federal minimum wage, which is currently $ 7.25 an hour.2-4

Committed to wait

Work performed by a clinical dental hygienist falls into the so-called committed-to-wait category. We are hired to provide clinical services to patients, who are on the dental office schedule. We have to wait for patients to present, and then perform clinical procedures.1

Federal rules for employee scoring

The Wages and Hours Division of the Federal Department of Labor was created to deal with employee wage issues. The federal law that covers employee wages is known as the Fair Labor Standards Act (FLSA). According to the FLSA, four specific criteria must be met to require an employee to clock in during the working day.

  1. The employee is completely relieved of his duties.
  2. The periods are long enough to allow the employee to effectively use the time for his own purposes.
  3. The employee is definitely warned in advance that he can leave the site.
  4. The employee is notified of the time to return to work.

If all four requirements are not met, the employee is still considered to be at work.5 Employers and employees are required to comply with federal law, and an employee cannot waive their rights as a worker.

Why the waters can seem muddy

Unfortunately, the DOL does not define two important factors. There are no specific guidelines on whether the free time is long enough for an employee to be able to use it effectively for their own purposes. There is no real definition of sufficient notice or criteria that would be considered adequate. Is 10 minutes or even an hour’s notice sufficient? Or do workers have to be given 24 hours’ notice when they need to clock in? Lack of clarity can lead to potential misunderstandings.

There are two other important points to keep in mind if you are asked to point. The first important point to remember is that the employee should be free to leave the dental office if asked to clock in. The second point is often overlooked. The law specifies that the employee does not perform any work when he is on call. If a worker has duties such as answering the phone, sharpening instruments, storing a treatment room, or cleaning equipment, then the employee is still working and the law requires the worker to be paid for the time. The employer, however, is not required to pay clinical wages for services like this.5

Mid-point score

A variation of taking a long hour of lunch is to clock in halfway. Some hygienists need to check in when a patient does not show up or cancels at the last minute. Does this request meet the four guidelines described above?5 In today’s world of 40-45 minute dates this hardly seems realistic, but again, it’s important to stick to the facts and keep the emotion out of the discussion.

Written office policies

A well-managed office will have the policies in writing. Read the employee manual. Office policies must comply with federal and state laws. Companies cannot set their own rules for employees. That is why workers are protected by the laws. The FLSA does not allow a worker to waive their rights, and having a written office manual does not guarantee that the policies are legal. If office policies are unclear or if terms need to be defined, seek clarification. Do not sign any agreement until you have read it completely and answered all of your questions.

The tradition of “this is how we’ve always done it in this office” may be very different from what is actually legal in your state. Federal laws prevail unless state laws are more stringent. Contact your state labor board to ensure compliance in your state.

Shortening a worker’s hours is a short-term business strategy and is disrespectful. Workers cannot recover lost wages when notified of last minute schedule changes. And fixed costs such as childcare do not change even if the worker’s schedule is shortened. Schedule management is the responsibility of the business owner and factors into the cost of owning a business. Owners should not expect workers to suffer an economic loss over which they have no control. It is the responsible and honorable thing to do for an owner.

What is a smart strategy?

It is wise to discuss office protocol in a factual manner with the physician, office manager, or person in charge of human resources matters. This is ideal if everyone can come to an acceptable understanding with well-defined protocols, rules and terms. It is to your advantage to offer potential solutions, which may include: a to-do list for non-clinical time or a clear definition of sufficient notice. It’s also a good idea to think of strategies that can reduce schedule changes. Everyone benefits when there are positive goals in mind.

Most clinicians, physicians, and office managers prefer to avoid confrontation. It can be very intimidating to bring up a topic, especially when the situation has a financial component. When it is impossible to come to an acceptable deal, it makes sense to have a plan B. In today’s world, that may simply mean abandoning a practice that continues to ignore pay or pay matters. abusing employee time. Knowing the pay rules is important to make sure we are paid fairly for all jobs.

The references

  1. Fact Sheet # 22: Hours Worked Under the Fair Labor Standards Act (FLSA). US Department of Labor. Wages and Hours Division. https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs22.pdf Revised July 2008. Accessed November 30, 2020.
  2. Fact Sheet # 14. Minimum wage. https://www.dol.gov/general/topic/wages/minimumwage. US Department of Labor. Wages and Hours Division. Revised July 2009. Accessed November 30, 2020.
  3. Wage discrimination. You have the right to be paid fairly for your work. Worker.gov. https://www.worker.gov/concerns/fair-pay/. Accessed November 30, 2020.
  4. Pay for hours worked. You have the right to be paid fairly. Worker.gov. https://www.worker.gov/concerns/pay-hours-worked/. Accessed November 30, 2020.
  5. FLSA Hours Worked Advisor. Waiting time out of service. legal advisers. US Department of Labor. https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenER79.asp. Accessed November 30, 2020.

ANNE NUGENT GUIGNON, MPH, RDH, CSP, a visionary thinker, has received numerous accolades over four decades for mentoring, research and guidance in her profession. As an international speaker and prolific author, Anne focuses on the oral microbiome, erosion, hypersensitivity, saliva dysfunction, ergonomics and employee rights issues. She can be contacted at [email protected]

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