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Can my employer require me to take a longer lunch break?

June 17, 2021
It's common practice to ask an employee to clock out for a longer lunch if a patient cancels. But is it really legal? Even after that's determined, knowing how to react is difficult.

Disclaimer: The information provided in this article does not, and is not intended to, constitute legal or tax advice; instead, all information is for general information purposes only. This article contains links to both governmental and third-party websites. Such links are only for the convenience of the reader. Readers should contact their attorney, CPA, or qualified tax preparation specialist to obtain advice regarding any personal legal or tax matter.

The following conversation is intended to alert dental health-care workers about employment practices regarding employees being required to clock out.

The following question emerges on a very regular basis: “Is it legal for an employer to require you to clock out for a long lunch? For example: My patient after lunch cancels and the business staff cannot or did not fill the open time. I am expected to take a long lunch and not return until the following patient. The assistants at my office do not have to clock out. They are given ‘assigned side work.’”

For the purposes of clarification, the following discussion pertains only to dental health-care workers who are paid as W4/W2 employees. Workers who are paid as independent contractors (W9/1099) are not protected by the Federal Department of Labor because they are not classified as employees. The topic of working as an employee versus independent contractor is not covered in this article. Read more about this issue in my article, "The risks of being misclassified as an independent contractor."

Discussions full of angst

For obvious reasons, this scenario generates long, heated discussions. This ever-increasing business practice sets up an emotional roller coaster for many employees and it places a worker’s financial well-being into limbo. The range of responses goes from a firm no, to suggesting walking out, to a sad resignation that one’s anticipated wages for the day will fall short.

While these situations typically create high levels of angst, emotional comments about fairness do not weigh into whether or not a practice is legal. It is critical for all employees to understand how the law weighs in on these practices.

The federal law

The Wage and Hour Division of the Federal Department of Labor was created to deal with employee wage issues. The federal law that covers employee wages is known as the Fair Labor Standards Act (FLSA). Federal law requires that employees must be compensated for all time at work. Some dental practices compensate dental hygienists only for clinical time, which is often defined as time spent providing direct patient care. There are hygienists who are expected to work off the clock while still performing work such as cleanup and setup, writing up clinical notes, reviewing patient records, or attending office meetings or huddles.1 While the worker must be compensated, a lower wage can be used, but it must be at least the federal minimum wage, which is currently $7.25 per hour.2-4

Engaged to wait

The work performed by a clinical dental hygienist falls into the category known as engaged to wait. We are hired to perform clinical services on patients, who are on the dental office schedule. We are expected to wait for patients to show up and then perform clinical procedures.1

Federal rules about employees clocking out

The Wage and Hour Division of the Federal Department of Labor was created to deal with employee wage issues. The federal law that covers employee wages is knowns as the Fair Labor Standards Act (FLSA). According to the FLSA, four specific criteria must be met in order to require an employee to clock out during the workday.

  1. The employee is completely relieved from duty.
  2. The periods are long enough to enable the employee to use the time effectively for his or her own purposes.
  3. The employee is definitely told in advance that he or she may leave the job site.
  4. The employee is advised of the time that he or she is required to return to work.

If all four requirements are not met, the employee is still considered to be at work.5 Both employers and employees are required to comply with federal law, and an employee cannot sign away their worker rights.

Why the waters may appear muddy

Sadly, the DOL does not define two important factors. There is no specific guidance on whether the off time is long enough for an employee to use the time effectively for their own purpose. There is not an actual definition of sufficient notice or what criteria would be considered adequate. Is 10 minutes or even an hour sufficient notice? Or should workers be given 24 hours’ notice when expected to clock out? Lack of clarity can lead to potential misunderstandings.

There are two other important points to keep in mind if asked to clock out. The first important point to remember is that the employee must be free to leave the dental office if told to clock out. The second point is often ignored. The law specifies that the employee does not do any work while clocked out. If a worker takes on tasks such as answering the phone, sharpening instruments, stocking a treatment room, or cleaning equipment, then the employee is still working, and the law requires the worker be compensated for the time. The employer, however, is not required to pay a clinical wage for services like this.5

Clocking out midshift

A variation of taking a long lunch hour is being told to clock out midshift. Some hygienists are expected to clock out when a patient fails to show or cancels at the last minute. Does this request meet the four guidelines outlined above?5 In today’s world of 40-to-45-minute appointment times, that hardly seems realistic, but again, it is important to stick to the facts and leave the emotion out of the discussion.

Written office policies

A well-run office will have the policies in writing. Read the employee manual. Office policies must comply with federal and state laws. Companies can’t make up their own rules for employees. This is why workers are protected by laws. The FLSA does not allow a worker to sign away their rights, and having a written office manual does not ensure the policies are legal. If the office policies are unclear or terms need to be defined, ask for clarification. Do not sign any agreement until you have read it completely and all of your questions have been answered.

The tradition of “that is the way we’ve always done it at this office” can be very different than what is actually legal in your state. Federal laws prevail unless the state statutes are more stringent. Contact your state labor board to ensure compliance in your state.

Shortening a worker’s hours is a short-term business strategy and is disrespectful. Workers can’t recoup lost wages when notified about last-minute schedule changes. And fixed costs such as childcare do not change even if the worker’s schedule is shortened. Managing the schedule is the responsibility of the business owner and factors into the cost of owning a business. Owners should not expect workers to bear an economic loss that they have no control over. This is the responsible and honorable thing for an owner to do.

What is a sensible strategy?

It is wise to discuss the office protocol in a fact-based manner with the doctor, office manager, or person in charge of human resource issues. It is ideal if everyone can reach an acceptable understanding with well-defined protocols, rules, and terms. It is to your advantage to offer potential solutions, which can include: a list of tasks for nonclinical time or a clear definition of sufficient notice. It is also smart to think about strategies that can reduce schedule changes. Everyone benefits when there are positive goals in mind.

Most clinicians, doctors, and office managers prefer to avoid confrontation. It can be very daunting to bring up a subject, especially when the situation has a financial component. When it is impossible to come to an acceptable agreement, it is smart to have a plan B. In today’s world, that can mean simply leaving a practice that continues to ignore wage issues or abuse employee time. It is important to know the wage rules to ensure we are paid fairly for all work.

References

  1. Fact sheet #22: Hours worked under the Fair Labor Standards Act (FLSA). US Department of Labor. Wage and Hour Division. https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs22.pdf Revised July 2008. Accessed November 30, 2020.
  2. Fact sheet #14. Minimum wage. https://www.dol.gov/general/topic/wages/minimumwage. US Department of Labor. Wage and Hour Division. Revised July 2009. Accessed November 30, 2020.
  3. Pay discrimination. You have the right to be paid fairly for your work. Worker.gov. https://www.worker.gov/concerns/fair-pay/. Accessed November 30, 2020.
  4. Pay for hours worked. You have the right to be paid fairly. Worker.gov. https://www.worker.gov/concerns/pay-hours-worked/. Accessed November 30, 2020.
  5. FLSA hours worked advisor. Off duty waiting time. elaws Advisors. US Department of Labor. https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenER79.asp. Accessed November 30, 2020.

ANNE NUGENT GUIGNON, MPH, RDH, CSP, a visionary thinker, has received numerous accolades over four decades for mentoring, research, and guiding her profession.  As an international speaker and prolific author, Anne focuses is on the oral microbiome, erosion, hypersensitivity, salivary dysfunction, ergonomics, and employee law issues. She may be contacted at [email protected].