HELENE HORN FIGMAN, JD
A member of the Massachusetts Bar for more than 30 years, Attorney Figman is an employment law attorney who has successfully litigated before all courts in Massachusetts and the United States District Court. She currently advises businesses in all aspects of employment law compliance, defends employers in actions brought before the Massachusetts Commission Against Discrimination, and presents anti-harassment and anti-discrimination training.

As a business owner, the needs of your practice are crucial. Why? Because if your practice is not successful, you will not be able to afford to take care of your employees.

Hiring individuals who will fit well, not only in terms of work abilities, but also in terms of interpersonal skills, is the first step to a successful dental practice. A good worker is not always a good employee. Think about it. There is more to contributing to the success of the practice than just proficiency in a skill set.

A key part of your hiring process is the interview. To ensure employment law compliance and avoid discriminatory conduct, present each candidate with the position’s job description. Have a copy of the description in front of you, and discuss each aspect of the essential functions of the position. This enables you to handle the interview process in a uniform manner. It also provides the applicant with the ability to review the position in detail and determine if he or she is interested. Duties that are part of the job, but not technical in nature, should also be detailed on the job description. Who is assigned to clean the waiting room? Does the role include having the ability to stand on a ladder in the stock room? Requirements and physical qualifications for the job should be listed in the job description; reviewing these requirements with the potential employee is the appropriate way to avoid asking personal or discriminatory questions about possible disabilities. For this reason, as well as the need to be able to hold employees accountable, assess reasonable accommodation requests, handle workers’ compensation issues, and address disability claims, the job description is a key tool for every dental practice.

When deciding upon compensation, hourly schedules, paid time off, vacation, or tuition reimbursement, you should consider the business plan and culture of your practice “wage and hour” classification is not up for debate. The classification of your staff member as either an “employee” or an “independent contractor” is regulated by law and specific guidelines must be met in order to have someone classified as an independent contractor. Among the many considerations to determine if individuals must be treated as employees include whether they are under direct supervision and control; paid at specific intervals; have ability for profit/loss; work preset hours; or perform services integrated in the business. The Internal Revenue Service has additional guidelines. After answering these and numerous other questions, most practices will find that the worker is usually an employee, rather than an independent contractor.

Similarly, when differentiating between “exempt” (salaried) and “non-exempt” (hour- ly) employees, an analysis of factors must take place. On December 1, 2016, the new final rule of the Fair Labor Standards Act goes into effect. Given the new salary level for employees to be exempt from overtime ($47,476), many dental practices will need to reconsider the exempt/non-exempt classifications that were previously used. Despite the new salary level, the “duties test” for determining whether someone is exempt from overtime will still apply. Exemptions include the executive, administrative, learned professional, creative professional, computer, and outside sales categories. There is a duties test for each such exempt category. Learn about the overtime rule at the Department of Labor website at dol.gov/featured/overtime.

Once you have interviewed and decided to go forward with hiring, the decision as to whether to extend an offer letter and/or employment agreement is the next action, and this relates to the level of the job. Whether issuing offer letters, engaging in employment agreements, or implementing policies to set forth your expectations, it is up to you to reflect upon the nature of your practice in order to choose the legal vehicle that best meets your needs. That being said, practices traditionally enter into an employment agreement with a dentist, while such agreements are not necessarily tendered to a dental assistant or a dental hygienist.

The employment agreement serves to set forth separate benefits and/or additional obligations of the professional’s association with the practice. Certain issues to be addressed in the agreement include the responsibility of each party regarding payment of professional liability insurance, payment of disability insurance, professional licensure and dues, and continuing education. Other provisions may relate to revenue or production and bonuses. Confidentiality and non- disclosure are common provisions. Similarly, a prohibition of the professional’s direct solicitation of the practice's patients is often included.

During the course of employment, whether the employee is exempt or non-exempt, your practice must treat its employees uniformly and fairly. “Uniformly” does not mean that every employee must 16 Journal of the Massachusetts Dental Society earn the same wage or work the same hours. Indeed, if one hygienist has been working for your office for 10 years, she or he may well be earning more than someone hired less than one year ago. Similarly, in order to attract a new stellar performer, you may decide to compensate that person at a higher rate. The key is to have a legitimate business reason for your actions, rather than have the terms and conditions of employment relate in any way to discrimination based upon a protected class under the law.

Maintaining policies that are uniformly enforced is another way to ensure that your workforce is treated equitably and in a legally compliant manner. Your policies should also set forth your expectations and requirements with respect to conduct, attitude, dress code, and personal presentation. Your policies provide an ideal vehicle for detailing the benefits that you provide, including time off and insurance. The policies present the opportunity to let the employee know what he or she must do when receiving a notice to serve jury duty and also when seeking parental leave. All practices must maintain an anti-sexual harassment policy and such policy is to be distributed annually, per Massachusetts law. An effective way to ensure that the annual distribution is meaningful and operative is through the presentation of formal anti-harassment training. This provides your employees with an opportunity to re- view the policies and to ask questions. At the same time, your anti-discrimination policies should be presented. All employees must be educated as to what is and is not accept- able conduct in the workplace and whether certain types of comments or actions are discriminatory in nature. Your managers have additional responsibilities. They must be trained to understand the best ways to effectively supervise and issue discipline within legal parameters.

With proper hiring, effective documents, comprehensive policies, and interactive training, your employee relations’ function should run smoothly, allowing you to focus on providing high-quality care to your patients. JMDS