Caution: Think before you make your employees clock out

HR experts Rebecca Boartfield and Tim Twigg warn dentists against making employees clock out if there's downtime during the day. It's often not legal and could get the practice into legal trouble.

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It's not unusual for employers to want to cut costs and save money. This makes perfect sense when you own and run your own business. Unfortunately, we find dentists taking this desire, combining it with an industry misconception, and then creating financial liability and employee resentment.

Dentists become frustrated when hygienists have no-shows or cancellations in the hygiene schedule, and they're still compensating the hygienist "while they do nothing." To manage this situation, dentists often have a policy, whether written or verbal, that states hygienists must clock out when they have no patient and no other work to be performed.

While this most commonly affects hygienists, this could be a policy for any employee. But is it OK? One could argue that the individual isn't working, so why not? Like so many things, the laws are not always logical and, in many cases, don't work in favor of an employer. It comes down to this: Would the time between patients in which no work is being done count as "waiting time?"

The government is clear that under certain circumstances some waiting time must be paid. Therefore, a policy requiring employees to clock out could be noncompliant. Like so many things, the ability to force someone to clock out is driven on a case-by-case basis; there is no one-size-fits-all approach to this.

So, when is waiting time paid? Here is what the Department of Labor (DOL) states: "Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time)."1

Engaged to Wait

When your employee is waiting for work to do, for repairs to be made, etc., while on duty, he or she is engaged to wait and the time is hours worked. Here are a few examples:

• A receptionist who reads a book while waiting for customers or telephone calls

• A messenger who works a crossword puzzle while awaiting assignments

• A fireman who plays checkers while waiting for alarms

In each of these situations, the employee is engaged to

wait and the time is hours worked. Waiting is an essential part of the job.

The time is hours worked even though your employee is allowed to leave the premises or the job site during such periods of inactivity. The period during which the inactivity occurs is unpredictable and usually of short duration. In either event, your employee is unable to use the time effectively for his or her own purposes. Your employee's time belongs to and is controlled by you, the employer.

Waiting to be Engaged

Off-duty waiting time or layover time is a period during which the employee is waiting to be engaged, and it is not hours worked.

Off-duty waiting time or layover time is not hours worked if

• Your employee is completely relieved from duty;

• The periods of time are long enough to enable your employee to use the time effectively for his or her own purposes;

• Your employee is definitely told in advance that he or she may leave the job; and

• Your employee is advised of the time that he or she is required to return to work.

All of the above requirements must be met or the employee is working while waiting. Whether the time is long enough to enable your employee to use the time effectively for his or her own purpose depends on all of the facts and circumstances of the case.

Conclusion

Whether an employee can be forced to clock out and not be paid for his or her time comes down to whether or not each employee in each situation meets the above criteria for "waiting to be engaged." This is not an easy determination. The best practice is to (1) avoid such policies, (2) find actual work for all employees to do when patients aren't present, and (3) focus on improving your systems and verbal skills to reduce the likelihood of no-shows and cancellations.


Tim Twigg is the president of Bent Ericksen & Associates and Rebecca Boartfield is an HR compliance consultant. For more than 30 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with ever-changing and complex labor laws. To receive a complimentary copy of the company's quarterly newsletter or to learn more, call (800) 679-2760 or visit bentericksen.com.

Reference

1. eLaws-FLSA Hours Worked Advisor. Department of Labor website. https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenER77.asp. Accessed February 13, 2017.

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