Michael J. Meehan, Esq.

	What’s a dentist to do when faced with 25-40 percent open time in the schedule? It seems that lately doctors are responding to this challenge by adjusting employee work schedules or sending employees home early. While I believe there is a better response, we’ll discuss that in a future blog post. For now, we’ll focus on the employee compensation issue.

	Disappointed that they are not getting all the hours they expected and, therefore, all the pay they were expecting to earn, employees are questioning whether or not it’s legal to reduce their hours and/or send them home due to lack of work.

	A couple of new phrases have been popping up in my e-mails lately. Doctors and team members have been asking about whether they are 

 Attorney Michael J. Meehan has contributed to this article to address the legal perspective in play.

It’s a gorgeous Friday afternoon in June, and apparently your patients have noticed. After a series of cancellations, your once-packed afternoon schedule is now wide open. You look around the office at your employees (whom you will now be paying to sit around the office the remainder of the afternoon) 

 and you have an idea. You announce to your employees that the practice will get an early start on the weekend and close at 2 p.m. Your employees are ecstatic at the news, and you give yourself a pat on the back. 

But then come the questions. Your assistant asks, “I still get paid for the afternoon, right?” Your hygienist is more direct and assertive, stating, “I’m fine with going home at 2 p.m., but I expect to be paid for the three hours I expected to work this afternoon. Legally, I was ‘engaged to wait’ for those three hours,

and I was not ‘waiting to be engaged.’ Therefore, I’m legally entitled to be compensated.”

	Doctor, your ingenious cost-saving early dismissal plan has now put you in quite a conundrum. Your employees are all looking at you, waiting for an explanation. So what’s the answer? As it is with many complex legal questions, the answer is, “It depends.”

	Your hygienist is referencing the Fair Labor Standards Act (“FLSA”), as interpreted by the 

. Whether the standard applies depends first on whether the employee is “exempt” or “non-exempt” under the statute. This is a complex question beyond the scope of this article. If you have questions about how your employees should be classified under FLSA, contact legal counsel or a human resources consultant.

	As for the terms “engaged to wait” versus “waiting to be engaged,” these derive from the FLSA and, for non-exempt employees, can help determine whether an employee needs to be compensated for time spent not working. Generally speaking, if an employee is waiting for work to do while on duty, he or she is “engaged to wait,” and the time counts as hours worked. For example, a receptionist does not clock out between phone calls. After hanging up, he or she is engaged to wait for the next call.

	By contrast, the Department of Labor takes the following into account when considering whether an employee is “waiting to be engaged:” 

			Was the employee advised of the time that he or she is required to return to work?

			Is time period in question long enough for the employee to use the time effectively for his or her own purposes?

			Was the employee informed in advance that he or she may leave the job?

	As you can see, the distinction is highly subjective and will depend on the facts and circumstances of each case. In our hypothetical scenario, the first three prongs are not likely an issue. The issue would turn on whether the employee was provided sufficient advanced notice of the early dismissal.

	However, over and above the answer, a more important question stems from the hypothetical scenario: Why didn’t you and your employees already know the answer? In legal questions of this nature, the dispute usually stems from a difference in expectation.

	If the above hypothetical scenario were to occur in your office, what would be the expectation of your employees? What have you done to manage those expectations and to protect yourself in the event of a disagreement? What documents (e.g., employment agreements, policies and procedures, etc.) can you direct your employees to for the answer? For example, your policy and procedures manual and employee agreements should include language that informs your employees that their hours of work may be increased or decreased to meet the needs of the practice.

	By addressing these issues in advance via employment agreements and/or policies and procedures, your practice can manage employee expectations and be in a better position to defend legal challenges on these grounds. Now would be a great time to review your materials and be certain that your HR house is in order.

What’s a dentist to do when faced with 25-40% open time in the schedule? It seems that lately doctors are responding to this challenge by adjusting employee work schedules or sending employees home early. While I believe there is a better response, we’ll discuss that in a future blog post. For now, we’ll focus on the employee compensation issue.

Disappointed that they are not getting all the hours they expected and, therefore, all the pay they were expecting to earn, employees are questioning whether or not it’s legal to reduce their hours and/or send them home due to lack of work.

A couple of new phrases have been popping up in my e-mails lately. Doctors and team members have been asking about whether they are 

It’s a gorgeous Friday afternoon in June, and apparently your patients have noticed. After a series of cancellations, your once-packed afternoon schedule is now wide open. You look around the office at your employees (whom you will now be paying to sit around the office the remainder of the afternoon) and you have an idea. You announce to your employees that the practice will get an early start on the weekend and close at 2 p.m. Your employees are ecstatic at the news, and you give yourself a pat on the back. 

Doctor, your ingenious cost-saving early dismissal plan has now put you in quite a conundrum. Your employees are all looking at you, waiting for an explanation. So what’s the answer? As it is with many complex legal questions, the answer is, “It depends.”

Your hygienist is referencing the Fair Labor Standards Act (“FLSA”), as interpreted by the 

As for the terms “engaged to wait” versus “waiting to be engaged,” these derive from the FLSA and, for non-exempt employees, can help determine whether an employee needs to be compensated for time spent not working. Generally speaking, if an employee is waiting for work to do while on duty, he or she is “engaged to wait,” and the time counts as hours worked. For example, a receptionist does not clock out between phone calls. After hanging up, he or she is engaged to wait for the next call.

By contrast, the Department of Labor takes the following into account when considering whether an employee is “waiting to be engaged:” 

Was the employee advised of the time that he or she is required to return to work?

Is time period in question long enough for the employee to use the time effectively for his or her own purposes?

Was the employee informed in advance that he or she may leave the job?

As you can see, the distinction is highly subjective and will depend on the facts and circumstances of each case. In our hypothetical scenario, the first three prongs are not likely an issue. The issue would turn on whether the employee was provided sufficient advanced notice of the early dismissal.

However, over and above the answer, a more important question stems from the hypothetical scenario: Why didn’t you and your employees already know the answer? In legal questions of this nature, the dispute usually stems from a difference in expectation.

If the above hypothetical scenario were to occur in your office, what would be the expectation of your employees? What have you done to manage those expectations and to protect yourself in the event of a disagreement? What documents (e.g., employment agreements, policies and procedures, etc.) can you direct your employees to for the answer? For example, your policy and procedures manual and employee agreements should include language that informs your employees that their hours of work may be increased or decreased to meet the needs of the practice.

By addressing these issues in advance via employment agreements and/or policies and procedures, your practice can manage employee expectations and be in a better position to defend legal challenges on these grounds. Now would be a great time to review your materials and be certain that your HR house is in order.

Michael J. Meehan, Esq.

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