Ginny Hegarty, SPHR

	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.

Another HR Hot Topic: What to do about a dental team member's tattoos and piercings

	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.

More from Ginny Hegarty:	Ignoring your patients? It's not a good thing for your practice. Here's why.

	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.

HOT READ: The biggest issue facing dental spouses today is...

	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 

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 

More from Ginny Hegarty:Ignoring your patients? It's not a good thing for your practice. Here's why.

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.

Articles

HR Hot Topics: Can you send your dental employees home without pay?

	After an exciting weekend, my two teams are set. Villanova won the Big East and Notre Dame took the ACC Championship. The bracket has been announced and Nova is a #1 seed in the East. The Irish are a #3 seed in the Midwest. It’s March. It’s time for some Madness. Here we go!

Even folks who don’t follow basketball any other time of the year will have a bracket or two. The American Gaming Association estimates that nearly 40 million people will complete over 70 million brackets and you can bet that many of those brackets will be part of a tournament office pool.

Hot read: The 7 most annoying things about your practice's waiting room

Many people, especially employers, wonder if it’s legal to let employees run an office pool that provides a cash reward. Are millions of otherwise law-abiding citizens breaking the law every March in the form of a $5 office pool bracket? “Technically speaking, yes,” says 

, an attorney in the health law practice of Fox Rothschild LLP. “Office pools for compensation are most likely illegal, and there have been cases where authorities have successfully charged pool organizers and participants with running an illegal gambling operation.

“However,” Meehan added with a smile, “I’d venture to say that in the vast majority of cases, the laws at issue are not very strictly enforced during the month of March.”

This seems to be a common sentiment. In his article in the Washington Post this past weekend, sports reporter Will Hobson writes, “while the tournament office pool is outlawed in much of the country, it is a crime roughly equivalent to driving 60 mph in a 55-mph zone.” Anne Fisher of Forbes quoted Challenger, Gray & Christmas CEO John Challenger’s opinion, “Trying to stop March Madness would be like trying to stop a freight train; if anything, employers should embrace it, and look for ways to use it as a tool to boost employee engagement.” 

More from Ginny Hegarty:	HR Hot Topic: Tattoos and piercings in the dental practice

Many studies show that about 50% of the time, the tournament fun has a positive impact on office morale. However, that doesn’t mean you must have an office pool to benefit from all the fun.

Chances are your office will be alive with tournament energy, regardless of whether your practice has an office pool or not. Your employees are likely fired up about the brackets they have going with family and friends. Many of your patients have probably jumped on the “Madness train” as well.

You can choose not to have an office pool, but to tap into the energy by having the team and patients talk it up and share their excitement. You can even throw a tournament office party or open house to celebrate with patients and/or referring doctors and their employees.

If you decide to sanction an office pool, it’s a good idea to set some boundaries. Be sure your employees know that no one should be taking a cut for running an office pool, as this can be seen as promoting illegal gambling.

Remind everyone of the guidelines that should be in place in your policy and procedures manual regarding BYOD issues (Bring Your Own Device) and personal use of the practice computers and Internet access.

For instance, if you have a policy that states cell phones should be kept on silent and away from your work area at all times, be sure everyone in your office understands that the office NCAA pool is not a license to keep your cell phone out, stream the games or check the scores. It’s also not a green light for surfing the Internet between patients to watch the tournament live.

Set guidelines for how and when the team can keep up with the games that are played during work hours. For example:

You might set a plan for lunch and mid-afternoon breaks for a team member to update everyone on a white board in the team lounge.

Some practices celebrate the hometown teams and keep the scores on a white board in the reception area and asks patients to help keep them up-to-date.

Other practices choose to have the games playing on the practice televisions.

More from Ginny Hegarty:	Ignore your patients' complaints at your own risk

The corporate world may be bracing for a billion dollar hit in lost productivity, however, due to the interpersonal way dentistry operates, the tournament can be a big boost for your dental practice.

When your practice employees are authentic, enjoying themselves and having fun, it shows! People like to do business with people they like and trust, so give your patients a chance to get to know all of you better on a personal level. Go ahead, tap into the fun, root for your favorite teams, post your team spirit photos to your Facebook page and get caught up in the excitement of this wonderful American tradition.

which provides practice and team development services to dentistry since 1997

 and proudly serves as the Immediate Past-President of The Academy of Dental Management Consultants. If your practice would benefit from HR support or an up-to-date policy and procedures manual, contact Ginny at (610) 873-8404 or through 

Note: Basketball photo © Justin Smith / Wikimedia Commons, CC-By-SA-3.0

 After an exciting weekend, my two teams are set. Villanova won the Big East and Notre Dame took the ACC Championship. The bracket has been announced and Nova is a #1 seed in the East. The Irish are a #3 seed in the Midwest. It’s March. It’s time for some Madness. Here we go!

What to know about your dental practice and the NCAA basketball tournament bracket

It’s 10:15 on a warm spring morning, yet in Jayne’s dental practice the heat is on! Jayne is the administrative assistant in a popular dental practice in town. While it may be lovely outside, Jayne can feel the heat of the two patients’ eyes glaring at her, searing laser-like heat focused right on her! These patients had 10:00 appointments and they have been waiting for 15 minutes. They are annoyed and on the verge of full-on anger.

This I know for sure: Patients don’t mind waiting near as much as they mind being ignored. Two of the best internal marketing strategies you and your team can initiate are a commitment to:

2. Top-notch communication between the team and the patient when something stands in the way of meeting #1 goal.

HR Hot Topic: Tattoos and piercings in the dental practice

 I teach teams is the 5-Minute Rule. The administrative assistant is responsible to monitor the reception room and stay fully aware of who is waiting, when they were scheduled and when five minutes has passed since their scheduled appointment time. At the 5-minute mark, the administrative assistant [AA] physically walks to the clinical area and makes eye contact with her patient’s provider or provider’s assistant. She then holds us one open hand showing all five fingers to signal she is using on the 5-minute rule. The clinical assistant responds according to this guide:

1 finger = we’re be done in a minute or two

2 fingers = we will need about 3-6 minutes

5 fingers = we’re going to be a while, initiate Plan B

The AA can then return to the patient in the reception area, acknowledge and apologize to the patient for the delay, and give the patient an idea of how much longer the wait will be. Most patients are very grateful for the update and will understand up to about a 15 or 20 minutes delay. Plan B offers the patient the option of making a call to adjust their schedule or rescheduling their appointment if necessary.

Romance in the dental practice: What is and isn't allowed

The teams with the best on-time performance realize that it takes the entire team to make this happen:

Everyone commits to arriving on time and being prepared to start the day on time.

At the morning huddle, the hygiene and assisting teams identify the hygiene check windows of opportunity and create a plan to keep the all providers running on time.

The administrative team manages the reception area and the clock.

The team reviews any missteps and discusses plans to avoid the same issues in the future.

On-time performance is a core value, a point of pride. The team tracks, reviews and analysis the results on a regular basis.

The best marketing and practice growth strategies create a reason for patients to think of you, talk about you, and refer their family, friends and coworkers. Everyone is busy these days and has very little patience for poor customer service. Your strategy is to get patients talking about how their dentist respects their time and doesn’t keep them waiting. When the unexpected or emergency situation happens, give patients further evidence of your appreciation and respect for their time through your service recovery initiatives. Happy patients are loyal patients that refer others.

Sticky situation: How to handle a negative online review

As the patient impacted by the delay is leaving, I also recommend that you have a service recovery strategy in place to reward the patient for their patience and understanding. Give your patient a small gift card to the local coffee shop or ice cream parlor so your patient leaves remembering your kindness and respect for their time, rather than the delay.

It’s often said that an unhappy client tells five others, while a happy client tells one. Aim for making patients happy 

. When you hit the inevitable speed bump that slows you down, handle it well and patients will still talk about your great care and serviceâ¦ while they enjoy their next Caramel Macchiato with whipped cream!

Make the 5-minute rule one the HR Top Topics at your next team meeting and reap the rewards.

HR Hot Topic: Communication in the dental practice ... Ignore patients at your own risk

Can you name the 12 different types of popular ear piercings?

Yes, you read that correctly, there are indeed 12 different ways to pierce an ear. Here’s the bigger question: How many are acceptable under your appearance policy?

As 42% of the adult workforce now has tattoos and 61% of American adults has a piercing other than on the earlobe

, body ink and piercings continue to be an HR Hot Topic in the workplace. Dentistry is no exception. 

Most dentists understand that they have the right to establish appearance guidelines; however, they can get into trouble in the application of those policies. The majority of my dental clients prefer an appearance policy that calls for “

professional dress and moderate personal grooming and adornments

.” Most of my clients also take a position against visible tattoos and have a policy limiting piercings to the earlobe.

Related reading: Top 10 tips for tats and piercings in the dental practice

Here are two scenarios that several clients have dealt with, along with my recommendation for how to handle these situations safely and legally.

#1 “My administrative assistant came in today with a small nose stud piercing. I’m actually ok with it, but another employee is upset because our policy does not allow her to wear her eight earrings. If I allow the nose ring, do I open myself up to all kinds of exceptions to the policy?”

#2  “My hygienist has a tattoo I didn’t know about. It was brought to my attention by a coworker who was told to cover up a large tattoo she has on her forearm. The hygienist’s tattoo is a very small flower on her ankle that is only visible when her slacks ride up while she’s sitting down working on a patient. I’m ok with the hygienist’s tattoo. Must I require all tattoos to be covered up or take the risk of being sued for discrimination?

Here’s the bottom line question: “Do I have some discretion in applying my appearance policy?”  The answer is YES! Yes, but keep reading so you fully understand how to do that legally and safely.

In the case of the nose stud in scenario #1, a small, single diamond stud in the nose could reasonably be considered ‘moderate’ while eight studs along the entire outer ear could reasonably be considered ‘immoderate.’

Therefore, the employer could allow the nose stud and not the eight earrings. The key is to be sure that your decisions do not impact employees in a way that would rise to the level of discrimination. For instance, don’t allow tattoos and piercings for women, but not for men. Don’t give more latitude to younger employees than your older employees, since body ink and tattoos are more common in adults under 30. Apply your policy consistently across all ages.

In example #2, it can also be seen as reasonable to allow a small, inconspicuous ankle tattoo and require that a larger forearm tattoo be covered up. In that same spirit, you might also reasonably consider a small wrist or ring tattoo to be acceptable under the policy, while still requiring the forearm tattoo to be covered.

, an attorney in the health law group of Fox Rothschild LLP. Michael encourages his clients to develop policies that can be applied flexibly, but also consistently. He noted, “It is certainly a best practice to apply a policy consistently, but this does not mean an employer cannot use his or her discretion. That said, before exercising that discretion, the employer should take some time to think about how it may be interpreted. You never want your discretion in applying that policy to be construed as discrimination based on a protected class.”

Related reading: 6 rules every dentist should follow to avoid frivolous lawsuits

Use your discretion. If you feel that the nose stud or the ankle tattoo do not meet your moderate standard, you can require that both be covered or removed (in the case of the nose stud) while at work. But if you prefer to allow one and not the other, use “consistent discretion” in applying your policies and you will be able to minimize your risks in this area.

This topic continues to trend as companies are beginning to relax their stance toward piercings and tattoos. We’ll take another look at how and why big business is responding in a future post.