I have been advised that this is a gray area. All the hygienists are paid on a day rate. Going to an hourly rate is a big change, as they cannot see as many patients, nor see a patient who arrives late. If their day rate is $427, their hourly is in the $50 plus range, and over-time is time and 1/2.
Is this true, what I'm asking. Is it a gray area that isn't being enforced?
Thank you.
Registered Dental Hygenists in California should be considered "exempt" employees who do not have to clock in and out, and do not get paid overtime.
As with many wage & hour laws, there indeed is no bright line rule that defines which employees are "exempt" from overtime, and which workers are entitled to overtime compensation.
For the purposes of determining professional exemption, the term "professional" means any employee who: (1) is compensated on a salary or fee basis at a rate of no less than $455 per week; (2) whose primary duty is the performance of work (a) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or (b) requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. (29 C.F.R. 541.300(a).)
The phrase "work requiring advanced knowledge" includes work requiring consistent (although not necessarily constant) exercise of discretion and judgment, as distinguished from routine mental, manual, mechanical or physical work. An employee who performs work requiring the advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from a set of facts. The advanced knowledge required to be exempt as a professional usually cannot be attained at a high school level.
The above principle is applied to different professions in a way which draws a distinction between workers who must have an advanced degree to qualify for the position held and necessarily use their advanced education in the scope of their work, and those who don't.
Thus, "Registered Dental Hygienists" are generally exempt because those positions require an advanced four-year degree. Moreover, Registered Dental Hygienists are licensed in California by the Dental Hygiene Committee of California, Dental Board of California.
(In comparison, a "Dental Assistant" would not be considered exempt, and would have to clock in and out, and be entitled to be paid overtime.)
Registered Dental Hygenists in California should be considered "exempt" employees who do not have to clock in and out, and do not get paid overtime.
As with many wage & hour laws, there indeed is no bright line rule that defines which employees are "exempt" from overtime, and which workers are entitled to overtime compensation.
For the purposes of determining professional exemption, the term "professional" means any employee who: (1) is compensated on a salary or fee basis at a rate of no less than $455 per week; (2) whose primary duty is the performance of work (a) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or (b) requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor. (29 C.F.R. 541.300(a).)
The phrase "work requiring advanced knowledge" includes work requiring consistent (although not necessarily constant) exercise of discretion and judgment, as distinguished from routine mental, manual, mechanical or physical work. An employee who performs work requiring the advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from a set of facts. The advanced knowledge required to be exempt as a professional usually cannot be attained at a high school level.
The above principle is applied to different professions in a way which draws a distinction between workers who must have an advanced degree to qualify for the position held and necessarily use their advanced education in the scope of their work, and those who don't.
Thus, "Registered Dental Hygienists" are generally exempt because those positions require an advanced four-year degree. Moreover, Registered Dental Hygienists are licensed in California by the Dental Hygiene Committee of California, Dental Board of California.
(In comparison, a "Dental Assistant" would not be considered exempt, and would have to clock in and out, and be entitled to be paid overtime.)
In California, there are three basic fields of exemption for wage and hour laws: executive, administrative, and professional. Dental Hygienists would conceivably qualify under the Department of Labor Standards Enforcement ("DLSE") professional exemption, which is outlined below. In order to assess the situation more specifically, however, your attorney would need to meet with you to discuss your individual circumstances.
A person employed in a professional capacity means any employee who meets all of the following requirements:
1. Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or
2. Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. "Learned or artistic profession" means an employee who is primarily engaged in the performance of:
3.
a. Work requiring knowledge of an advance type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or
b. Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and
c. Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
4. Who customarily and regularly exercised discretion an independent judgment in the performance of duties set forth above.
5. Who earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c).
In the event you believe you do not meet this exemption, you should contact an experienced employment attorney who can advise you with respect to your options. You can also contact your local Labor Commissioner for help.
