The new owner of the practice I work in has made some changes regarding the way we are paid. She has asked that we decrease our hours if the schedule has openings either at the start or finish of our 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 whatever was written in the contract stands for the term of the contract. It also depends if the employee is paid hourly or salary. If there is no written contract addressing this issue, then the Fair Labor Standards Act (FLSA) applies.1 This Act 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, then the hygienist is “engaged to be waiting” and under the FLSA, should be paid. If there is no patient scheduled and this is known ahead of time, such as a day in advance, this is considered “waiting to be engaged” and may not considered work time, therefore the employer can ask the employee not to work during this time.2 Another common situation is when the dental hygienist’s wages are reduced when there is an open appointment in the middle of the work day. If the hygienist is asked to perform other tasks such as filing, confirming appointments, or office duties during open appointment times, it is legal for the employer to reduce the hygienist’s salary, which must be at least minimum wage for that state.1 Interpretation of the FLSA can be confusing, therefore consulting an attorney who specializes in employment/labor laws is advised to clarify circumstances. As these scenarios are becoming more common, dental hygienists should discuss open appointment and cancellation compensation policies with the dentist employer 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 which clearly defines the details of employment and will alleviate any miscommunication of expectations. This response is provided for general information only and does not constitute legal advice. United States Department of Labor. Fair Labor Standards Act. Available at: http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER78.asp Accessed November 14, 2018. Boartfield R, Twigg T. Caution: Think before you make your employees clock out. Dental Economics. 2017;107(3). Available at: https://www.dentaleconomics.com/articles/print/volume-107/issue-3/practice/caution-think-before-you-make-your-employees-clock-out.html Accessed November 14, 2018.