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JB Umphrey
JB Umphrey, Lawyer
Category: Employment Law
Satisfied Customers: 20232
Experience:  Assisting employees and employers for over 14 years.
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I am a dental hygienist; I work in Oklahoma 99% of dental

Resolved Question:

I am a dental hygienist; I work in Oklahoma
99% of dental hygienists are women
Dental hygienists are not independent contractors
Typically, dental hygienists are part-time; we 24-32 hours/week
I am paid on "salary" when my day is over 8 hours; I am paid "hourly" when my day is shorter than 8 hours
Seems to work out to employer's advantage

This is a common practice. It's neither right nor fair; but is it illegal?
Submitted: 1 year ago.
Category: Employment Law
Expert:  JB Umphrey replied 1 year ago.
Welcome and thank you for your question!

I am sorry to learn of the facts that you've described. It would be helpful to know: do you ever work more than 40 hours in a week?
Customer: replied 1 year ago.

Not for this dentist. As a rule, dentists' offices are not open 40 hours/week.

Expert:  JB Umphrey replied 1 year ago.
Thank you. To clarify: are you asking if you should be paid overtime for when you work more than 8 hours in a day?
Customer: replied 1 year ago.

No.


 


My daily salary is $300, regardless of how long the day is (usually 8.5 - 9.0 hours). I'm okay with that. I am not okay when the rules change when I work less than 8.0 hours and suddenly I'm an "hourly" employee because it's in the dentist's best interest.


 


 


 


 

Expert:  JB Umphrey replied 1 year ago.
Thank you. Do you have a written contract that you can hold the dentist to?
Customer: replied 1 year ago.

No. Contracts are not typical in our profession.

Expert:  JB Umphrey replied 1 year ago.
Thank you. I just want to make sure that I understand things correctly then:

1. You do not have a written employment contract.

2. You do earn more than the minimum wage for the actual hours that you do work.

3. You do not work more than 40 hours in a week, and, thus, are not eligible for overtime pay.

Do I have it correctly? And, if so, what specific information do you seek from JustAnswer?
Customer: replied 1 year ago.

All correct.


 


Do I have a legitimate, actionable complaint in that I am paid as a "salaried" employee on days when I work more than 8 hours on a given day...but then paid as an "hourly" employee when I work less than 8 hours on a given day.


 


Seems my status should be one or the other, not both.

Expert:  JB Umphrey replied 1 year ago.
The employer's actions are inconsistent but they don't violate any existing laws.

You see, the law only cares that you be paid at least the minimum wage and, maybe, that you be paid 1.5 times if you work over 40 hours in a week.

In your situation, you earn more than the minimum wage and you don't work more than 40 hours in a week.

So, the law is off the table here. The employer is fine on those fronts. I hope I explained that clearly.

So, then the question becomes: well, do you have a written contract that the employer is breaching?

As you've indicated, no such contract exists.

So, technically, can the employer do this? Yes. It does not violate any current laws and it's not in breach of any written contract.

I know this answer may come as a great surprise to you. I understand. There are limits to the law's reach, however, and you have two of them here. And, you have no written contract to sue over.

You can try to negotiate a written contract with your employer. Or, you can simply act with your feet. Unfortunately, those are your two options.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. Thank you for your business!

~~ J.B.
JB Umphrey, Lawyer
Category: Employment Law
Satisfied Customers: 20232
Experience: Assisting employees and employers for over 14 years.
JB Umphrey and 12 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

It's as we expected. Many thanks.

Expert:  JB Umphrey replied 1 year ago.
I know it's disappointing but I trust you wanted a forthright answer (it's like reminding me to floss ....... grrrrrrrr ......hate the message but what can I do.....it's the truth!).

Please do not forget to click on excellent service feedback so that we are credited for assisting you.

~~ J.B.

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