Ask the Expert: Six answers to HR questions, featuring Bent Ericksen & Associates

Nov. 17, 2009

Question 1: The staff in my dental practice tells me they can get better vacation benefits elsewhere. I don’t want to lose them. Can you give me some guidelines on how much vacation time to provide to stay competitive?

Answer: First, know that no federal law says employers must provide paid vacation time. However, 70% of small (one to 49 employees) businesses do provide vacation benefits. This is compared to about 54% of the health care employers.

Small business: Average paid vacation
Full-time staff working 40 or more hours per week
Years of service ... Number of days
1 year ... 8.1 days
3 years ... 10.2 days
5 years ... 11.9 days
10 years ... 13.9 days
15 years ... 14.8 days

Small health care practice: Average paid vacation
Full-time staff working 32 to 36 hours per week
Years of service ... Number of weeks*
1 year ... 1 week
2 years ... 2 weeks
8 years ... 3 weeks

*Typically a vacation “week” is related to the number of hours worked in an average workweek, not including overtime. For example, a full-time staff member who gets two weeks vacation and who regularly works 36 hours a week has earned 72 (36 x 2) hours of paid vacation time. Many health care offices also offer part-time employees who work more than 20 hours a week paid vacation time. Using the above example, a part-time employee who regularly works 24 hours a week and has earned a two-week vacation is entitled to 48 hours of paid vacation time.

As you look at the averages, bear in mind that competition for quality staff is not only other health care practices, but could be the company down the street.

Question 2: My practice is in Oregon and I have been told that I should keep only one personnel file. You recommend keeping both a regular file and a confidential file. What should I do?

Answer: There is nothing in Oregon law that prevents you from keeping the two separate files. Many sources recommend the separation of documents consistent with our advice. If an employee or former employee sought access to personnel file data (records affecting the individual's employment, including those used to determine the employee's qualifications for hiring, promotion, pay increases, and employment termination or other disciplinary action), you would have to produce documents from a regular file, confidential file, or supervisory notes that were not protected pursuant to applicable statutes (e.g., confidential reports from previous employers).

Question 3: Is there a daily overtime law that requires a dental office to pay overtime in Oregon for hours worked in excess of 10 in a workday?

Answer: No. The state of Oregon (ORS 653.261 and OAR 839-020-0030) and federal laws (FLSA) require that overtime (1 1/2 times the regular rate of pay) be paid to non-exempt employees who actually work in excess of 40 hours in a workweek (seven consecutive days).

Overtime for hours worked in excess of 10 in a workday is only applicable in Oregon to mills, factories, and manufacturing establishments.

Question 4: I am an “at will” employer but I understand that my rights are consistently being undermined. Do employees who file bankruptcy fall into a protected class?

Answer: Personal bankruptcy filings have mushroomed, resulting in a new federal bankruptcy law with stiffer filing requirements. This bankruptcy filing explosion has focused attention on the bankruptcy law’s little-known discrimination provision, 11 U.S.C. Sec. 525(b). Employers cannot discharge employees because they have invoked the protection of the bankruptcy laws. Bankruptcy filers constitute yet another protected group primed to sue unsuspecting employers.

Question 5: My dental practice is in Northhampton, Mass. Am I required to give a payroll stub to employees with their payroll check?

Answer: When paying wages, an employer is required under Massachusetts law to furnish the employee with a pay stub or other document that shows the name of the employer, the name of the employee, the day, month, year, number of hours worked, hourly rate, and the amounts of deductions or increases made for the pay period.

Question 6: I own a medical practice and I employ nurse practitioners and physician assistants. Overtime is a big problem that is affecting the profitability of the practice. Unfortunately, these positions regularly require long hours. Can I classify those employees as exempt according to the Fair Labor Standards Act?

Answer: We find that many employers want to classify these individuals as exempt under the “professional exemption” category of the Fair Labor Standard Act (FLSA), but this is an inaccurate classification. According to the position taken by the Department of Labor, the job duties of these positions do not require employees to “engage in the practice of medicine,” which disqualifies them under the “professional exemption” category. As such, this rules out the possibility of these individuals being exempt from overtime regulations.

Do you have a question pertaining to HR issues? If so, CLICK HERE to submit your question for Bent Ericksen & Associates.

For more than 25 years, Bent Ericksen & Associates has been a leading authority in human resources and personnel issues, helping dentists successfully deal with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, contact them at (800) 679-2760 or www.bentericksen.com.