Compensation and Overtime

IT’S A NASTY SUBJECT!

Let’s talk today about the nasty little subject dentists’ like to ignore.

I’m talking compensation, overtime, lunch breaks, and rest breaks.

You guys know I’m not your attorney, and I’m only talking about small dental offices with just a few employees. If you are a big operation, or are a union practice, you’ll have even more laws to follow. If you have specific questions, contact your labor law attorney – I am just trying to give you some familiarity with issues you need to pay attention to.

Dentists sometimes try to avoid paying employees properly or pay at all for certain work time. Employees call me, and even though I never represent employees - I do often listen to what they have to say.

WHAT EMPLOYEES ARE SAYING:

1. From a hygienist: My doctor makes me check out when I don’t have a patient in the chair. He also makes me check out when I sharpen my instruments, set up my room, and clean my trays.

Is this legal?

2. From a front desk associate: My doctor makes me sit at my desk during lunch and answer the phone. I can’t go get food or go out with the other employees. I don’t get paid for this, since the doctor says sometimes the phone doesn’t even ring so I don’t deserve pay.

Is this right?

3. From a hygienist: My doctor pays me $30 per patient, as an independent contractor. I don’t get paid for anything else even though I’m required to confirm my own patients and clean and set up my own trays. If my patient doesn’t show up, I don’t get paid. I can’t leave even if I want to, like to go to Starbucks or something.

Can this be legal?

WHY DO YOU CARE?

The penalties can be huge and employers generally have to pay an employee’s attorney’s fees as well. Many violations are retroactive and cover your entire staff.

WHAT DOES WORK TIME MEAN?

Let’s get real simple here. Any time an employee is doing anything at all for you or for the practice you owe them pay. It doesn’t matter what it is.

What kinds of things do I mean when I say “all?” Let me give you some examples I’ve come across.

1. Your employee stops and get your Starbucks every morning. Yep, paid time – from the time she leaves her house. It doesn’t matter that you also buy her coffee.

2. Your employee picks up the dry cleaning on the way to work. Doesn’t matter whether it is the office laundry or your personal dry cleaning –it is time worked, from the time she leaves her house.

3. Employees cleaning up trays, setting up trays, sharpening instruments.

4. An employee goes to pick up lunch, for you or for the entire staff. Again, doesn’t matter if you are buying lunch.

5. You have a staff meeting at lunch, or after work, or any time actually– and be careful if that staff meeting doesn’t mean that the employees end up working overtime for that day or that week, because a staff meeting is paid time worked.

WHAT’S OVERTIME?

In California, overtime is owed on all hours worked in excess of 8 hours in a work day.

Although it isn’t generally applicable to dentists, overtime is also owed on all hours worked in excess of 40 hours a week. So, for example, if you have an employee who works only 7 hours a day, but works 6 days a week – for a total 42 hours in a week – 2 hours would be overtime even though no one day exceeds 8 hours.

The only exception to the daily overtime rule is if you’ve filed an alternate work schedule with the State of California and you have complied with all the requirements of the filing. You also should have proof of the filing, and you should comply with current law. Alternate work schedules are no longer panaceas, and have their own set of rules you need to follow. Consult your labor law attorney if you want to file this kind of work schedule.

LUNCH BREAK REQUIREMENTS

During a regular 8-hour work day, all employees must be given a lunch break – an uninterrupted and uncontrolled lunch break before they exceed 5 hours of work in a day – unless 6 hours completes their work day.

Lunches, for normal 8-hour work days, have to be at least 30 minutes.

They also can’t be too long or you move into split shift laws – which we aren’t going to talk about here. Some dentists aren’t very busy mid-day, so they require their employees to take 2 or 3 hour lunches. If you are doing this, you should consult your labor law attorney because you are doing split shifts and have to comply with those laws.

You also cannot require that employees stay in the office, or do any work during their lunch. It is their time and it needs to be uninterrupted.

Employees MUST clock in and clock out for their lunches, because you don’t have to pay for lunch time and there needs to be a record that you provided that lunch. That’s one of the things I got “in trouble” for!

REST BREAKS

Employees also must be given rest breaks, 2 – 10 minute breaks per day during a regular 8-hour work day.

Rest breaks are different from lunch breaks in that you do pay employees for that time and you can control the time.

Most people do not have employees clock out for their breaks, but you can – and it is safer.

However, many dentists do not give breaks, reasoning that the employee can use the restroom, eat or drink something when they want - taking into consideration the patient schedule. This is not good enough. A rest break must be an UNINTERRUTED 10 minutes AND must be given mid-morning and mid-afternoon.

Also, rest breaks cannot be added to a lunch or to the beginning or end of a work day. It needs to be mid-shift in the morning and mid-shift in the afternoon. That is, it needs to be a true break.

However, you can require that an employee stay in the office during his or her break because you are paying for the time.

Ok, don’t shoot the messenger and consult your attorney if you have specific issues!

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