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How Do Dental Hygienists Spend Their Working Time?

June 17, 2019 6112

Classification of exempt employees under California’s “primarily engaged in” standard.

Under the Fair Labor Standards Act (“FLSA”) dental hygienists may be classified as exempt employees as “learned professionals” provided the employee meets certain requirements under a “primary duty” test. California law imposes a more restrictive standard, generally making it even harder for California employers to establish an employee’s exempt status. Whether licensed professionals, such as certain dental hygienists, qualify as exempt under the stricter California standard depends on, among other things, whether the individual is “primarily engaged in” the practice of a “learned profession.” This tends to require a case-by-case assessment of an individual employee’s actual work duties as opposed to a more general classification of a work unit based on a job description.

Federal Law– “Primary Duty” Test

In 2004, the Department of Labor issued revised regulations defining and delimiting the exemptions from the FLSA minimum wage and overtime requirements for executive, administrative, professional, outside sales and computer employees. The revisions defined the exemption for “learned professionals.” To qualify under this exemption an employee’s “primary duty” must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. (29 CFR 541.301(a).)

Federal regulations define “primary duty” as the principal, main, major or most important duty that the employee performs, “with the major emphasis on the character of the employee’s job as a whole.” (See 29 CFR § 541.700(a).) Relevant factors in determining an employee’s “primary duty” include, but are not limited to: the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. (Id.) Employees who spend less than 50 percent of their time performing exempt duties may still meet the primary duty requirement if other pertinent factors support such a conclusion.

The revised regulations provide that 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 under the FSLA. (29 CFR 541.301(e)(3).)

California Law – “Primarily Engaged In”

Similarly, persons employed in an administrative, executive, or professional capacity may be exempt from minimum wage and overtime provisions under California law. In California, exempt employees are generally those who, among other things, are “primarily engaged in” the duties that meet the test of the applicable exemption. (Cal. Labor Code §515.) Under this standard California law places greater significance on the amount of time an employee actually spends performing exempt duties. An employee is “primarily engaged in” exempt duties only if the employee spends more than one-half of his or her work time on such duties. (Cal. Labor Code §515(e).) The California Supreme Court held that by creating a quantitative test California intended to depart from federal law and create greater protections for employees. (See Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal.4th 785, 797; DLSE O.L. 1994-07-14.)

That said, employees that spend 50 percent or more of their work time in certain “learned professions” may still be properly classified as exempt under California law. Work in a “learned profession” is generally one that requires knowledge of an advanced type (beyond high school study) in a field of 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. (29 CFR § 541.301(a)-(d).) Consequently, the exemption is restricted to professions where specialized academic training is a standard prerequisite for entrance into the profession. (Id.) The DLSE suggests that an advanced degree in a specialized field, i.e., B.S. in Chemistry, meets this requirement. (See DLSE Enforcement Policies & Interpretations Manual, Dec. 2006, § 54.8.5) Licensure or certification by a state agency also offers evidence supporting the exemption. In addition to being primarily engaged in a “learned profession,” the employee must also regularly exercise discretion and independent judgment in performing duties in the profession and earn a monthly salary equivalent to at least twice the state minimum wage for full-time employment. (8 Cal.C.Regs. § 11010 et seq.)

It is important to note that licensure or an advanced degree is not the determinative factor. One must still consider the quantitative component, that is, whether a particular employee actually spends more than 50 percent of his or her work time performing exempt duties, as well as the qualitative component, namely whether the employee exercises discretion and independent judgment in performing those duties. This generally leads to a case-by-case determination. It may be that one hygienist in the same office is “exempt” while another hygienist is “non-exempt.” Taking precautions and completing a self- audit can prevent misclassification of an employee and avoid costly penalties.

For more information and advice on this and other employment matters, contact CDA Practice Support or your legal counsel.

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