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Getting paid fairly: When your time off becomes time 'on'

Aug. 18, 2021
It's not uncommon to ask an employee to take on some work tasks after hours. But is it OK—or even legal? Anne Nugent Guignon, MPH, RDH, CSP, takes on this complicated employment topic.

Author's note: 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 for advice about any personal legal or tax matter. The following article is intended to alert dental health-care workers about employment practices regarding employees being required to work during their off time.

Employment issues can be very complicated, and even more so when the employees work in a small business. Some small business owners ask employees to perform business tasks during their personal time away from the office. These requests are often termed “team-building activities” and employees, pressured to comply with these requests, often feel trapped.

This article discusses two situations that may seem very similar. Both involved doctors requiring staff to use personal time for work-related tasks or activities performed outside of normal work hours, but each requires different solutions. This segment focuses on wages, and most specifically the question of overtime pay. An employee’s exact classification falls under the federal Department of Labor Wage and Hour Division. The classification determines if an employee is eligible for overtime pay.

First scenario: "There’s a new rule at my office. We are each required to answer office calls on our weekends (unpaid). We do get $30 for every new patient we book. The doctor is obsessed with self-improvement. He gives us homework to do at home. I have a 1-year-old child, so for me to be required to answer the phones on my weekends is a lot."

Second scenario: "My doctor is making everyone in the office read two books, a chapter a week. I am currently completing my BS degree and prepping to move. I barely have time for myself, my husband, and my classes, let alone for 'homework' from my doctor. When I come home from work, we cook dinner, I work on statistics homework, shower, and go to sleep. I like to leave my work at work."

Both hygienists asked colleagues how they would feel if faced with these situations. Most comments were tinged with emotion; answers were all over the map. None accurately addressed the scenarios from a legal standpoint.

While it’s not an employee’s responsibility to understand all the fine points of labor law, it is wise to be familiar with basic concepts. This approach removes the victim mentality, and the employee is then free to offer reasonable solutions to some very sticky problems.

To sort through the human resources issues, I contacted Kara Kelley, SPHR, SHRM-SCP, a human resources expert who specializes in employment matters. She focuses on the unique culture of dentistry and serves a wide range of dental practices from large dental service organizations to small dental practices. Kelley is a wealth of information. Her goal is to provide accurate information for all involved from the practice owner to the employee.

A critical classification: Exempt or non-exempt

The Federal Department of Labor (DOL) is a cabinet-level agency. The DOL Wage and Hour Division administers the Fair Labor Standards Act (FLSA). This federal law has very specific criteria regarding how workers are classified, and the DOL classification pertains to how workers are paid, with the focus on hours and wages.1

The FLSA worker classification criteria is not the same as that used by the Internal Revenue Service.1,2

The IRS mandate is to collect taxes while the federal DOL focuses on employee treatment within the workplace. Worker rights are a different matter from how worker taxes are calculated. This is an important distinction.

The FLSA covers any worker paid as employee. Workers who are paid as independent contractors are not covered by FLSA regulations. Employees fall into two categories: exempt or non-exempt. This critical DOL classification determines whether the employee must be paid overtime wages.1-3

According to Kelley, most employees in the general workforce fall into the non-exempt category and it is rare for a dental worker to meet the qualifications of an exempt employee.3 The criteria are very specific and difficult to meet. Kelley advises dental practices to err on the conservative side and consider their workers as non-exempt.3,4

Most clinical dental hygienists can’t be classified as exempt. This distinction is based on the employee’s initial dental hygiene degree. In order to be exempt, the first degree must be a bachelor’s degree awarded by a CODA-accredited university or college program.5

Most dental hygienists initially receive an associate’s degree from a community college or from a for-profit educational program. Very few clinical dental hygienists qualify for the learned professional employee exemption.6

Pay rates and overtime wages

How does employee status translate in our world? Since the vast majority of dental practice employees do not fit the exempt worker criteria, non-exempt employees must be paid for all work hours, including overtime wages when the work hours exceed 40 hours in a weekly pay period. Overtime pay is time and a half for all hours over the base 40.7,8

Businesses can establish different pay rates for different types of work. It is legal to pay a dental hygienist a specific hourly rate for clinical duties and a different compensation rate for nonclinical duties. Both parties must agree to these rates prior to the work assignment. The lower compensation is often called an administrative rate. According to federal law, the nonclinical rate can be as low as minimum wage, which currently can be as low as $7.25 per hour; your state or municipality may have a higher minimum wage. 7,8

What about state labor laws?

While this article focuses on federal law, individual state statutes can override federal law when the rules are more stringent than the FLSA. California law is a perfect example. Workers in that state begin to accrue overtime when work in any day surpasses eight hours. This is different from calculating overtime based on a cumulative 40-hour workweek. Savvy employees should contact their state labor boards for exact information.9

Part two of this article will focus on other factors that impact how these two hygienists should be compensated. Stay tuned. The devil is in the details, and the details require a complete understanding of what is considered work!


1. Wages and the Fair Labor Standards Act. Wage and Hour Division. US Department of Labor. Accessed July 10, 2021. https://www.dol.gov/agencies/whd/flsa

2. Get the facts on misclassification under the Fair Labor Standards Act. Are you an employee or a contractor? US Department of Labor Wage and Hour Division. Accessed July 10, 2021. https://www.dol.gov/whd/workers/Misclassification/misclassification-facts.pdf

3. Fact Sheet #17D: Exemption for professional employees under the Fair Labor Standards Act (FLSA). Revised September 2019. Updated January 2020. Accessed July 10, 2021. https://www.dol.gov/whd/overtime/fs17d_professional.pdf

4. Fact sheet #3: Professional offices under the Fair Labor Standards Act (FLSA). US Department of Labor Wage and Hour Division. Updated July 2008. Accessed July 10, 2021. https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs3.pdf

5. Executive, administrative, professional, computer, and outside sales exemptions. Field Operations Handbook. Washington, DC: Department of Labor Wage and Hour Division; 2016: 22i14. Revised January 19, 2021. Accessed July 10, 2021. https://www.dol.gov/whd/FOH/FOH_Ch22.pdf

6. Fact Sheet #17A: Exemption for executive, administrative, professional, computer outside sales employees under the Fair Labor Standards Act (FLSA). US Department of Labor Wage and Hour Division. Revised September 2019. Accessed July 10, 2021. https://www.dol.gov/agencies/whd/fact-sheets/17a-overtime

7. Fact Sheet #22: Hours worked under the Fair Labor Standards Act (FLSA). US Department of Labor Wage and Hour Division. https://www.dol.gov/whd/regs/compliance/whdfs22.pdf 

8. Pay for hours worked. You have the right to be paid fairly. US Department of Labor website. Revised July 2008. Accessed July 10, 2021. https://www.worker.gov/concerns/pay-hours-worked/

9. State Labor Offices. Commissioners, Directors, and Secretaries. US Department of Labor Wage and Hour Division. Updated January 2021. Accessed July 27, 2021. https://www.dol.gov/agencies/whd/state/contacts

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].