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Daily rate pay laws California

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  • Daily rate pay laws California

    Hello,

    My mom works as a dental hygienist in California. For the past six years she has been paid a daily wage for her work, which seems to be the standard for her profession. After reading other posts on this site, it seems as though daily rate for an 8-hour day is the same as hourly rate X 8 in terms of calculating pay and overtime. Is this correct? Here are my specific questions:

    1. If she leaves early for the day because she has no more patients, can her pay be docked? In other words, if she is there for 7 hours instead of 8, can she be paid 0.875 days?

    2. Her regular scheduled shift is 8:30 to 5:10, with a 40-minute lunch. She is now required to attend a staff huddle at 8:15, but she arrives to work at 8:00 to ready her station for her first 8:30 appointment. Many days, due to late arriving clients, her lunch is shortened to 30 minutes. She also does not take any 10-minute breaks as they are not enforced and there is no scheduled break time. Should overtime should be calculated for the early arrival and short lunch days? How about the break times? She has shown up to work 15 minutes early for the past six years, and 30 minutes early for the past 2 months.

    3. If she is required to learn new material beyond the scope of her licensure, to offer new services specific to this dental practice, should she be paid for training time? She attended a training that landed on her regular scheduled day, and the class was paid for, but her time was not compensated.

    Her employer does not keep any time sheets or record of start and stop times so it would be difficult to prove, although her coworkers could verify her hours. However, they may not because everyone there seems to be afraid of losing their jobs. Another employee, a dental assistant, is paid as an exempt employee and is there more than 8 hours every working day. What should be done about this? I am trying to convince my mom to talk to the labor board, but she doesn't want to lose her job. Any advice?

    Thanks!
    -Aaron
    Last edited by aaron_808; 09-01-2012, 08:59 PM.

  • #2
    Easy stuff first. The employee needs to start recording accurate hours worked at home. Use pencil and paper. Do not tell anyone at work what they are doing. Do not tell any friends who know people at work what they are doing. The government does not necessarily take the employer's (or the employee's) word for anything, but having records is very useful (for both parties). There is no excuse to not do this.

    The default is non-exempt. All that means is that hours worked must be tracked, minimum wage must be paid and overtime must be paid. The employee is probably non-exempt. Job titles do not legally mean anything. My understanding is that a dental hygienist would fail the Professional exception, although I do not know this in fact. Example, RNs are generally Exempt while LVNs are generally non-exempt. I am assuming that a dental hygienist requires a few years of technical training but not the equivelant of say 6 years of college. But that is the sort of thing the employee could call up CA-DLSE and confirm. Not my area of expertise.

    Once you know for sure the employee is non-exempt, then basically maintain a spreadsheet. CA minimum wage is $8/hr, and the employee should be subject to CA daily overtime. You should be able to figure out what the legal minimum is required and whether or not the payment being made is sufficent.

    Now should the employee risk their job filing a claim is a question that I am not prepared to give advise. But first figure out if there is actually a claim in the first place, and how much. Then and only then does the last question become interesting.
    Last edited by DAW; 09-02-2012, 06:47 AM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      Wow, thank you for the quick response! I did not know about the professional exemptions...

      The general online legal consensus is that dental hygienists do qualify for professional exemption. She graduated from a UC with a BS in dental hygiene (both the junior college and UC are accredited), and makes much more than $455 per week. Found this:

      ยง 541.301
      Learned professionals.
      (e) (1) Registered or certified medical technologists. Registered or certified medical technologists who have successfully completed three academic years of pre-professional study in an accredited college or university plus a fourth year of professional course work in a school of medical technology approved by the Council of Medical Education of the American Medical Association generally meet the duties requirements for the learned professional exemption.
      (3) Dental hygienists. Dental hygienists who have successfully completed four academic years of pre-professional and professional study in an accredited college or university approved by the Commission on Accreditation of Dental and Dental Auxiliary Educational Programs of the American Dental Association generally meet the duties requirements for the learned professional exemption.

      So, that makes OT out of the question? Can they still dock daily pay for being sent home early? This dentist seems to do whatever saves him a buck.

      Thanks again for your help!
      -Aaron

      Comment


      • #4
        Your cite is federal law (FLSA), not CA law. CA sometimes has tighter rules, but it is certainly possible that CA also considers a dental hygienists to be Exempt. I just checked the CA-DLSE manual and that does not explictly say anything about dental hygienists. So I am again going to suggest that someone needs to talk to CA-DLSE about this since theirs is the only opinion that matters. And at the same time, if the employee is Exempt, find out if the Salaried Basis requirement is in affect. Not all Professional exceptions require this, and since CA-DLSE is not specifically discussing dental hygienists that I can find, I cannot tell if the Salaried Basis requirement is in affect or not. Basically if the employee is Exempt and the Salaried Basis requirement is in affect, then they cannot be docked for partial days not worked. However if they are Exempt and the Salaried Basis requirement is not in effect, then they only need to be paid for all hours worked (including hours worked past 40 in the workweek or past 8 in the workday). Functionally some Professionals can be paid as Exempt Hourly. This would include medical doctors.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

        Comment


        • #5
          It sounds like this dentist is doing something wrong one way or the other. Here are the scenarios:

          1. The employee is professionally exempt, and the salaried basis requirement is in effect - there should be no docking.
          2. The employee is professionally exempt, and the salaried basis requirement is not in effect - there should be regular time paid for work in excess of 8 hours per day / 40 hours per week.
          3. The employee is not exempt - there should be overtime pay for work in excess of 8 hours per day / 40 hours per week.

          Is this correct? And is exempt hourly the same as scenario 2?

          Next stop is the California Labor Board office for clarification. Thank you so much for your time!

          Comment


          • #6
            Agreed. Any time someone is non-exempt, the normal MW/OT rules apply. Any time someone is Exempt, then they are Exempt under a specific exception, and the rules specific to that exception need to be followed. Professional is one of the odder exceptions because there are so many exceptions to the exception (so to speak). But if the employee is indeed Exempt, then they are either Exempt Salaried or Exempt Hourly, but which path is (hopefully legally) followed, all rules associated with that particular path must be followed. And while most states follow the federal rules as is, CA does not. Particularly in this situation.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

            Comment

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