Paying your employees correctly to attend CE courses at the FNDC next month

       With the FNDC (Florida National Dental Congress) right around the corner, and many dentists offering to pay the course fees for their staff to attend CE offered in Orlando at this event, I wanted to take a moment to provide you all with the knowledge of how they should get paid. And yes, the vast majority of employees working in a dental practice should get paid an hourly wage to attend CE courses, according to the Dept. of Labor. This is the number one reason that dentists (and employers in general) get audited by the Dept. of Labor and sued by their employees (current of former). All it takes is one anonymous phone call made by an employee (who thinks they should have gotten paid to attend the CE courses) to the Dept. of Labor, and an audit is likely to ensue. This is an important topic with very little “wiggle room” that almost all dentists misunderstand, which is why it is the #1 reason they get sued. Learning and abiding by this information now will protect dentists for years to come, and I’m ALL about protecting dentists!

 

       Do I have your attention yet? Excellent! As always, I will provide you with the exact link to the exact wording from the Department of Labor’s Wage and Hour Division. This legal criterion is found within the Fair Labor Standards Act, and is located at this link under the heading of “Training and Seminars”: www.dol.gov/whd/regs/compliance/whdfs53.htm.  FYI-Keep this link handy because it is a great resource for dentist employers on compensating employees correctly!

       Here’s what I want all dentists to know and understand about the Dept. of Labor. They are there to protect employees; not employers. They will take the word of employees over the word of an employer, every time. In fact, here is the Wage and Hour Division’s Mission Statement from their website:  US Department of Labor: The Wage and Hour mission is to promote and achieve compliance with labor standards to protect and enhance the welfare of the Nation's workforce (www.wagehour.dol.gov). This is their main purpose; protecting and enhancing our nation’s workforce. Now that you know this in advance, we can move on to why and how the vast majority of dental practice employees should get paid a wage to attend CE courses. 

      The biggest issues that dentists have over this subject is whether or not the CE their staff is taking is considered Mandatory or Voluntary, and herein lies the problem. Dentists believe that if their staff attends VOLUNTARY CE that they should not get paid their hourly wages to attend the CE course(s) because it is not considered “working time” in the eyes of the dentist employers. Therefore, dentists usually indicate to their employees that they are “not requiring” this CE be attended by their employees, because it is not mandatory, and therefore, is not considered time worked. This is usually followed by the dentist stating that if their employees “WANT to attend, it is up to them” (employees), and some dentists’ then offer to pay for the price of the course registration and perhaps employees’ lunch, but no hourly wages. 

       This is the crux of the misinterpretation, in the eyes of dentists as employers.  Dentists believe that their version of voluntary CE, as stated in the prior paragraph, is any CE that dentists deem as “not required or mandated by dentists”, therefore, not considered “working time”. However, the Dept. of Labor’s interpretation of voluntary CE is very different, and basically, their wording and criteria is the legal standard for all employers to abide by regarding what THEY (the Dept. of Labor) say is “working time” that employees get paid their hourly wage for (plus overtime if the CE attended puts their weekly hours worked over 40 for that week). 

       Unfortunately, the criterion for true VOLUNTARY CE is very strict and very easy to misunderstand. Most dentists have a great heart when they offer to pay for the course and lunch, but don’t believe they are legally required to pay hourly wages for their employees.  The one thing I want all dentists to remember here is that voluntary CE must pass the Dept. of Labor’s legal criteria and it is strict. In fact, the vast majority of “voluntary CE” is incorrectly labeled, and employees know that they should get paid to attend CE, which is why they call the Dept. of Labor to ask them that very question. Hence, the audits and fines, penalties, and back pay, which can go back 2 years as the statute of limitations period permits. 

       Here is the EXACT WORDING from the Department of Labor regarding whether or not attending CE is considered “working time” for which employees get paid their hourly wage, and possibly overtime. Employees of a dental practice (hourly non-exempt) who attend CE (which includes training, seminars, lectures, meetings, & similar activities) must pass ALL of the below listed criteria to be considered voluntary, non-working time:

“Training and Seminars

Attendance at lectures, meetings, training programs and similar activities are viewed as working time unless all of the following criteria are met:

• Attendance is outside of the employee’s regular working hours;
• Attendance is in fact voluntary;
• The course, lecture, or meeting is not directly related to the employee’s job; and
• The employee does not perform any productive work during such attendance.”

       As you can see from the wording above, the big “stickler” here is listed in the third bullet point. Most FNDC courses are directly related to a dental practice employee’s job. Therefore, it is not considered voluntary, and the employee should get paid an hourly wage. Going one step further, if the employee has already worked 36 hours that week and then heads off to the FNDC, and attends a full 8 hour day of seminars, they are now entitled to overtime at a rate of 1.5 times their regular rate of pay for hours worked over 40 in that week. Those hours worked, plus travel time back and forth to Orlando and course attendance time, all count towards compensated “working time” during that week. So sayeth the Department of Labor, and that is how dentists and employers are getting sued for this issue more than any other issue. Since most dentists are unaware of this strict criterion, I thought this would be a great time to ensure that all dentists have a FIRM understanding of this topic BEFORE the FNDC is here. 

       So, let’s take a look at some examples to further clarify this frequently misunderstood ruling. 

Example #1: Kathy is an RDH who is attending a course at the FNDC on Saturday on New Periodontal Techniques for Hygienists. Her dentist employer stated clearly that it is up to Kathy whether she wants to take the course or not, and that it is not required, or mandatory, according to the dentist employer. Kathy’s dental practice is closed on Saturdays normally. Her dentist employer paid for Kathy’s course registration, and told her she would get reimbursed for gas, tolls, and amount paid for lunch, but not her hourly wage, as long as she brought the receipts to her dentist employer on Monday. Is Kathy entitled to get paid her hourly wage for taking this CE course? 

Answer #1: Yes, she is entitled to receive her hourly wage for the travel time to and from the Orlando FNDC conference, the time of attendance at each course, and any other work and job-related activities such as attending a round-table discussion after the course on oral-systemic disease correlations. The course and the round table discussion are directly related to her job therefore, it is considered “working time” by the Dept. of Labor’s legal criteria. However, if Kathy wanted to attend the end of day yoga course that is offered at the FNDC, which is not directly related to her job, then she would not be entitled to be paid her hourly wage (or overtime) for attending the yoga course. 

       Should any dentists have any further questions about this topic, please feel free to email me at DrAnneliseDriscoll@gmail.com,  and I would be happy to answer questions. Knowledge is power, but more importantly, it is also protection. 

       Thanks for stopping by, and just remember; you only have to brush and floss the teeth that you ABSOLUTELY, POSITIVELY want to keep. That's all; nothing more. 

Dr. Driscoll