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QUESTION: I’m a dental hygienist in Texas who’s been practicing about five years, four years at the office where I am now. I get paid by production only and I don't get paid for anything I do besides dental hygiene. But recently my boss came to me with new options that I know will not benefit me. Is it legal to make me clock in like every employee, do all duties required, plus do recall when I have time off and not get compensated for it? The dentist said I could choose whether to keep my W2 form. This means I follow all the rules that every employee has to, such as doing recall and assisting in other aspects of the front desk. If I don't agree she would rather give me a 1099 form, which means I pay my own taxes at the end of the year. Also, she said that I cannot get production credit for x-rays anymore when I take them because I’m not a doctor who can diagnose them. Can you please give me some information about this? Thank you.
ANSWER FROM DIANNE GLASSCOE WATTERSON, RDH,Watterson Speaking and Consulting LLC:
It is violation of the Fair Labor Standards Act (FLSA) to require employees to work with no expectation of pay. If you are being paid on straight commission, there is no need to clock in as you are not being paid by the hour. It sounds as if the doctor thinks by having you clock in she can avoid the perception that you are being asked to work for no pay.
Here is a link to the FLSA website. You should familiarize yourself with this law at dol.gov/whd/offtheclock/
If she insists on treating you as an independent contractor by giving you a 1099 instead of a W-2 (as she should), you can file a complaint against her with the IRS. The feds have their radar on high alert for employers who willingly misclassify employees to avoid paying the proper taxes on them. Visit dol.gov/whd/workers/misclassification/.
Inform the doctor that taking x-rays, which is work, is quite different from diagnosing them. That’s her job. You should receive pay for taking for x-rays. Your doctor is stepping over dollars to pick up dimes.
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