LEGAL COMMENTS
Top 5 FLSA/wage and hour pitfalls affecting dentists
by CURTIS R. SUMMERS & ROBERT J. ROJAS I
n addition to applicable state laws, the Fair Labor Standards Act (FLSA) governs various “wage and hour” issues at the federal level. Among other things, the statute: 1) sets the federal minimum wage (currently, $7.65 per hour); 2) sets overtime at “time and a half” for all hours worked over 40 in a particular work week; and, 3) provides exemptions from those minimum wage and overtime requirements for certain categories of employees.
Like most employers, dentists may believe the FLSA’s statutory provisions are not overly complicated and do not present significant risk of violation. And, while it’s true the statute has remained largely the same since its enactment in 1938, American workplaces and workforces are dramatically different. As a result, trying to apply an outdated law in a complex work environment presents a number of challenges. It’s no wonder then that modern employers, such as dentists, eas- ily can misinterpret their obligations under an antiquated law like the FLSA.
In light of those challenges, wage and hour lawsuits continue to be on the rise. Indeed, FLSA complaints are at a record high and the Department of Labor, the agency tasked with enforcing the FLSA, is stepping up efforts to identify employers who violate the law. While the following list of common questions is by no means exhaustive, it may shed some light or certainty on some timely employment issues.
Are my employees properly classified as exempt from minimum wage and overtime requirements?
Unfortunately, that depends on a number of factors. It is a common and dangerous
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misconception that paying an employee a salary exempts him or her from the FLSA’s minimum wage and overtime requirements. The U.S. Department of Labor regulations set forth several categories of employees who may be classified as exempt—the most com- mon categories are executive, administrative and professional employees—and establish several requirements for an employee to fall into each category. Each exempt category re- quires much more than a base salary amount for an employee to qualify as exempt.
Whether your dental practice employees are exempt or nonexempt is highly fact-based and typically depends not on a job title or written job description, but on the actual job duties the employees perform. Take for example two common dental practice em- ployees: the dental hygienist and the office manager.
With respect to dental hygienists, the DOL regulations set forth specific guidelines for
determining whether they qualify as exempt professional employees. The FLSA exempts from the minimum wage and overtime requirements those who qualify as “learned professionals.” An employee qualifies for the “learned professionals” exemption if he or she primarily performs work requiring “advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruc- tion.”
It should come as no surprise that doctors, dentists, optometrists and other physi- cian specialists qualify for the exemption. However, whether the exemption applies to dental hygienists is not as clear. Under the regulations, a dental hygienist will qualify for the exemption if he or she has success- fully 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
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