Can a Practice Change the Way Dental Hygienists Are Paid?

QUESTION: The new owner of the practice I work in has made some changes regarding the way dental hygienists are paid. The dentist has asked that we decrease our hours if the schedule has openings either at the start or finish of the day, or following lunch. Also, if an opening occurs in the middle of our schedule, our hourly rate is significantly decreased. Is this legal?

The above scenario is becoming a common occurrence for dental hygienists, and the answer to its legality is not always clear. If a contract was signed addressing these issues at the beginning of employment, then this agreement stands for the term of the contract. It also depends on whether the employee is paid hourly or is on salary.

If there is no written contract addressing this issue, then you can refer to the Fair Labor Standards Act (FLSA).¹ This legislation explains the difference between an employee who is “waiting to be engaged,” or “engaged to be waiting.” If a dental hygienist is waiting for a patient and the patient doesn’t show up, then the dental hygienist is “engaged to be waiting.” In this instance, per the FLSA, the clinician should be paid. If there is no patient scheduled and this is known ahead of time (eg, 1 day in advance), this is considered “waiting to be engaged,” and may not be considered work time. As such, the employer can ask the employee not to work during this time.²

Another frequent occurrence is when a dental hygienist’s wages are reduced when there is an open appointment in the middle of the work day. If the dental hygienist is asked to perform other tasks, such as filing, confirming appointments, or other office duties during open appointment times, it is legal for the employer to reduce the dental hygienist’s salary, which must at least meet the state’s minimum wage.¹ Interpretation of the FLSA can be confusing; therefore, consulting an attorney who specializes in employment/ labor laws may be helpful.

As these scenarios are becoming more frequent, dental hygienists may want to discuss open appointment and cancellation compensation policies with the dentist prior to starting employment. In doing so, expectations are clear for both parties. Once agreed upon, the terms should be documented in a written contract that clearly defines the details of employment. This will alleviate any miscommunication of expectations.

This response is provided for general information only and does not constitute legal advice.

REFERENCES

1. United States Department of Labor. Fair Labor Standards Act. Available at: dol.gov/ elaws/ esa/ flsa/ hoursworked/ screenER78.asp. Accessed March 11, 2019.
2. Boartfield R, Twigg T. Caution: Think before you make your employees clock out. Available at: dentaleconomics.com/ articles/ print/ volume-107/ issue-3/ practice/ caution-think-before-you-make-your-employees-clock-out.html. Accessed March 11, 2019.

From Dimensions of Dental Hygiene. April 2019;17(4):46.