Human Resources Questions for Dentists: Vacation 'block' unfair to some; RDH classification

Handling a small business and issues that come up with staff members can be daunting for some dentists. Afer all, they went to dental school, not business school. That's why the experts from Bent Erickson & Associates are here to help. Because no dentist wants to get in trouble due to mishandling staff issues.

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Handling a small business and issues that come up with staff members can be daunting for some dentists. Afer all, they went to dental school, not business school. That's why the experts from Bent Erickson & Associates are here to help. Because no dentist wants to get in trouble due to mishandling staff issues.

QUESTION: The dentists at our office have blocked out the first week of January to employees. No one is allowed to take vacation time during this week. However, there are two employees that have three birthdays between them. They're saying that we can't take our birthdays off or our children’s birthdays because they fall during this "blocked week." If you or your child's birthday falls at any other time of year then you can take the time off. So everyone else gets to take this time off around their birthdays. Is that legal and fair or is this discrimination? We’ve talked about this at staff meetings, but it's basically “Too bad” according to the bosses.

ANSWER: The situation you've described is not illegal. Employers do have the right to determine when employees can and cannot take time off. Choosing certain times of the year in which vacations or time off are prohibited is also not unusual.

While not illegal from an employment compliance perspective, it does seem somewhat unfair. Employers should do what they can to create policies in which all employees are treated the same. A policy in which two employees are always prohibited from participating in their own birthday or children’s birthday celebrations is certainly not a balanced policy.

Of course, the employer is not required to change anything as it relates to this policy. However, not doing anything will mean continuation of the animosity with the two employees who are negatively affected by this policy. This will not bode well for employer-employee relations, might lower employee morale, break down team relations, and possibly lead to turnover.

We offer the following ideas to solve this issue: 1) Choose a different week in January to be blocked out that does not affect employees with birthdays around the same time. Granted, we do not understand the rationale for this blocked time, so this may not be a way to solve the problem. 2) Create a time-off policy in which all employees are prohibited from taking time off on their birthday or children’s birthday. This is extreme and not a solution that we recommend, but at the very least everyone would be subject to the same rules. 3) Rotate the blocked week(s) throughout the year, thus all employees would be similarly impacted in different years. 4) Allow all employees the right to take earned and unused time off for similar or specified occasions.

Regarding discrimination, while the policy itself is not discriminatory, it is possible that it could become discriminatory. Within discrimination laws there is a type called adverse impact. This type of discrimination occurs when a seemingly neutral policy ends up adversely impacting only people who are in a protected class. This type of policy would then be considered illegal.

In your situation, your policy, on its face, is neutral. However, if the employees who are affected by this are in a protected class, then they could claim that the policy adversely impacts only them and it is because of their protected class status. This is why we recommend creating policies in which every employee can be treated fairly and consistently across the board.

QUESTION: My colleague says that hygienists can be classified as exempt. Is this true? I thought I remember hearing that most, if not all, dental employees would be non-exempt. I thought the only exception could be office managers. Can I reclassify my hygienists?

ANSWER: On a federal level, hygienists can be classified as exempt professionals if they meet the following criteria from the Faiir Labor Standards Act (FLSA): (3) Dental hygienists. Dental hygienists who have successfully completed four academic years of pre-professional and professional study in an accredited college or university approved by the Commission on Accreditation of Dental and Dental Auxiliary Educational Programs of the American Dental Association generally meet the duties requirements for the learned professional exemption.

As you can see, this is a very narrow window of opportunity to classify hygienists as exempt. In fact, it is our position that few will meet the criteria. If a hygienist does qualify, consider this before jumping to that classification:

1. An exempt employee must be paid on a salary basis and reductions in pay are strictly limited. An exempt classification will remove all flexibility in compensating hygienists according to production, for example.
2. Not all hygienists working for your client will meet this criterion, which will result in the hygiene staff being compensated in different ways from each other. Not only is this a hassle administratively, it will also result in not being able to apply the incentives for production to all equally.

It should also be noted that state laws may differ and not allow such exemptions. Therefore, prior to moving in this direction, check with your state to ensure compliance.

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Human Resources Questions for Dentists is provided by Rebecca Boartfield and Tim Twigg of Bent Ericksen & Associates. Tim Twigg is president and Rebecca Boartfield is a human resources compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists deal successfully with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit

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