QUESTION: Our employee handbook states that we are paid for certain holidays each year, and lays out how we accrue vacation hours. In the middle of last year, the dental practice owner decided to discontinue holiday and vacation pay. This was done without changing the employee handbook or giving us anything in writing. After we complained, he started paying some employees a half day of holiday but not all employees. Is this legal to not pay all employees what they were promised in writing? What about the employees who do not even get the half day of holiday pay? This seems discriminatory to me.
Discrimination can occur when a policy adversely impacts people who fall within a “protected class.” For example, if the employer is providing holiday pay to young individuals and excluding older individuals in a protected class for age, it could be alleged that the action discriminates against the older workers, and this would be illegal. Outside of the protected class categories, which are numerous and growing, the employer can do what he or she wants in terms of benefits administration.
Based on your question, it seems as though there is a discrepancy between the written policy manual and the verbal policy the employer imposed last year. Obviously, having written policies and verbal policies align is the best way to minimize confusion or misunderstandings. Policies can be changed at the employer’s discretion. It is typically recommended that these changes be made prospectively, meaning employees are given notice of a coming change.
When written and verbal polices are different and the written policy is not being followed, then this could be viewed as a breach of written contract as the written would likely override any verbal contract.
QUESTION: We are thinking of sending staff to a mandatory continuing education course that will be held on a day when the office is normally closed. Should the staff be paid for this day? If so, at what rate? Please advise.
ANSWER: Continuing education compensation is a topic that causes enormous confusion, so I will attempt to be straightforward about an employer’s obligation. There are laws in place that regulate continuing education compensation. You should become familiar with federal and state laws that set forth these regulations.
Whether or not you have to pay for CE depends on whether or not the following four criteria are true:
1. Attendance is outside regular working hours;
2. Attendance is voluntary;
3. The training session or meeting is not directly related to an employee’s current job; and
4. The employee performs no productive work during the training.
If the answer to all of the above criteria is “yes,” then you do not have to pay for the continuing education event.If even one of the above criteria cannot be answered with “yes,” then you have to pay for the continuing education event.
Since your question clearly states that this event is mandatory, you are on the hook for paying employees to attend this course. This is true regardless of the day of the week the event falls on. What do you have to pay for? You have to pay for all of the time the employees spend at the training. You also have to pay for certain travel time, if applicable. You are not specifically required to pay for expenses under federal law, but there’s a catch to that as well, so that doesn’t always hold true. State laws are different and might require expenses to be paid. For example, in California all expenses except meals have to be paid.
This might also affect overtime. You must include the CE event hours with the other hours the employees worked and, if the sum is greater than 40 in a workweek or an established daily overtime threshold in your state, then you must pay time and one half for the overtime. You can pay a “Different Capacity Work Rate” for these events as long as the rate is established prior to the event, is documented and signed by the employee, and is minimum wage or higher.
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Human Resources Questions for Dentists is provided by Rebecca Boartfield and Tim Twigg of Bent Ericksen & Associates. Tim Twigg is president and Rebecca Boartfield is a human resources compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists deal successfully with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit bentericksen.com.
