Programs of the American Dental Associa- tion. If a dental hygienist has not completed the required accreditation, then he or she will not qualify for the exemption, even if he or she has obtained an unrelated four-year college degree or has satisfied separate, but different, state standards for dental hygien- ists. So, before classifying a dental hygienist as exempt, it is incumbent upon dentists to ensure their hygienists have obtained the required accreditation.
On the other hand, there are no specific regulations as to whether office managers qualify as exempt. That is likely the result of varying job duties for office managers from dental practice to dental practice, whereas dental hygienists perform essentially the same job duties across the board. However, in many cases an office manager will qualify for the administrative exemption. Generally, to qualify for the administrative exemption, an individual must primarily perform “office or non-manual work directly related to the management or general business operations of the employer or the employer’s customer” and “exercise discretion and independent judgment” on significant matters.
So what is work “directly related to the man- agement or general business operations”? What type of “discretion and independent judgment” is required? There is no clear stan- dard because the exemption is again highly dependent on the facts and circumstances of each employment situation. But there are a few general guidelines that tend to signal whether an office manager qualifies for the exemption. Office managers may qualify for the exemption if, through their work, they are effectively managing the dental practice. Likewise, the exemption may apply if the employee’s work is significant and substantial for the operations of the business. The more responsibility and discretion the employee maintains, the more likely he or she is to qualify for the exemption. In contrast, where independent responsibility and decision making are minimal, or where the job duties are more clerical in nature, the exemption likely will not apply.
It is important to carefully examine the nature of an employee’s job duties before deciding whether an exemption applies, and
determine what the employee actually does. Otherwise, a dental practice could be looking at involvement from the DOL or a lawsuit for misclassification, each of which can carry significant monetary risks.
Do employees need to be paid for time spent traveling for or attending continuing education seminars?
Again, the answer to this question is de- pendent on the circumstances. Attendance at educational programs and seminars is common for professionals in a dental prac- tice. Employees may request to attend such programs, employers may require attendance at such programs, and in some cases, con- tinuing education programs are required to satisfy licensing requirements. In any event, these programs can certainly benefit a dental practice and the employees who work in that practice. Unfortunately, it is not always clear whether time spent at those programs is compensable under the FLSA.
As a general rule, if an employer requires its employee to attend a program or seminar, then time spent at the program is compen- sable. In contrast, to constitute non-compen- sable time, the FLSA regulations require the following four criteria be met: 1) the seminar is outside normal work hours; 2) attendance at the seminar is voluntary; 3) the seminar is not directly related to the employee’s job; and, 4) the employee performs no productive work during the seminar.
But what about voluntary attendance at a seminar that is “directly related to the em- ployee’s job”? Provided that the other three criteria are met, if the employee voluntarily attends a seminar or program that corre- sponds with courses offered at a bona fide institution of learning outside normal work- ing hours, then the DOL regulations state that the time is not compensable regardless of whether the program is related to the employee’s job. Likewise, if the employee voluntarily attends a program outside work hours put on by his or her employer, and that program corresponds to those offered by a bona fide institution of learning, then the time is not compensable regardless of wheth- er the program is related to the employee’s job. Furthermore, such time is not compen-
sable if the program or seminar is required to maintain state licensing or certification requirements.
Likewise, travel time to or from programs or seminars is compensable in certain situa- tions. If the time spent at the program is compensable under the above criteria, then travel time also is compensable, provided such travel time occurs during normal work hours. That is the case regardless of whether it occurs on an actual work day. But, the regulations vary depending on whether the seminar or program is one day or longer. If the program takes place over the course of only one day, then travel for the program otherwise not counted as normal “home- to-work” travel is compensable travel time. If the seminar is longer than one day, then travel time occurring during normal work hours is compensable, regardless of the day of the week.
Should overtime calculations include bonuses or other incentive based pay?
As a general rule, yes. Another common misconception among employers is that overtime is calculated at one and one-half times the “hourly rate” of pay. The fact is, overtime is calculated at one and one-half times the “regular rate” of pay. What’s the difference? Well, there is no difference if the employee is employed solely on the basis of an hourly rate, e.g., a retail worker who earns $11 per hour and receives no other form of compensation. However, the hourly rate and regular rate differ when an employee receives additional compensation such as incentive pay, commissions or a production bonus on top of his or her hourly pay.
In a dental practice, additional compensation could take a number of forms such as com- missions, a production bonus or any other outcome-based bonus. For example, if an office assistant works 50 hours in a week at $15 per hour, but also earns a $50 production bonus that week, the bonus must factor into her regular rate of pay for calculating over- time. That amount is calculated as follows:
$15 (hourly rate) x 50 (hours worked) = $750
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ISSUE 1 | JAN/FEB 2015 | focus 33
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