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QUESTION: I worked for a dental practice for more than 17 years, three years as a dental assistant and 14 years as a hygienist. About 10 years ago the doctors decided to pay the hygienists based on production/commission. It was great. We could leave when we were done with patients and we could arrive late if our first patient cancelled. This year the doctors decided that hygienists had to be in the office during normal office hours, which are 7:30 a.m. to 4:30 p.m. If a hygienist’s first patient is at 9 a.m., she still has to be at the office at 7:30 a.m. If the hygienist is done with patients at 2 p.m., she still has to stay until 4:30 p.m. If a hygienist is late the office takes away some vacation time—if she clocks in at 8 a.m., she loses 30 minutes of vacation time.
I took it upon myself to be the voice for the hygienists. I did some research and what I found pointed me in the direction of wage theft. To my understanding, employers do not have to provide vacation time but if they do they cannot take it away. I questioned how and why this change occurred and whether it was legal. I was promptly fired for insubordination. Is it legal to make commission-based hygienists stay before and after they see patients? I understand maybe 30 minutes to do administrative work, but one to three hours seems excessive. Can employers take away vacation time that has already been earned?
ANSWER FROM DIANNE WATTERSON, MBA, RDH,Watterson Speaking and Consulting LLC:
First, I would like to know why the doctors wanted you there when you did not have a patient. By requiring you to be there, you are “engaged to wait” which is compensable time, and this means you should be paid for this time. Doctors are allowed to pay a differing rate of pay for work that is not chairside, such as for staff meetings or working on recall. But there must be an agreed-upon hourly rate. And generally, employers may not take away benefits that have been earned.
As to legality, states differ on these issues, so talking to an attorney with expertise in employment law would be your best bet. Employers cannot expect staff members to provide work with no expectation of pay. Doing laundry, answering the phone, general cleaning . . . that’s work and it’s all compensable. Also, you might be able to get some answers by talking to someone at your nearest Department of Labor office.
Here are some links to provide more information. Good luck!
https://www.dol.gov/whd/local/index.htm
https://www.employmentlawhandbook.com/flsa/flsa-when-to-count-waiting-time-as-hours-worked/
https://www.dol.gov/whd/regs/compliance/whdfs22.htm
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