A statement I’ve heard from multiple hygienists across the country is that dental hygienists need a union. Unfortunately, that is unlikely to happen for multiple reasons, the biggest being that dentists regulate the dental hygiene profession. It is to their benefit not to allow us to create a union.
The idea of a dental hygiene union is a pipe dream. That may sound disheartening, but I’m here to tell you that we don’t need a union. We simply need to be brave enough to confront employers who do not follow the labor laws meant to protect employees. There is a federal act that you need to familiarize yourself with to improve your working conditions.
The National Labor Relations Act (NLRA) was passed in 1935 to “encourage collective bargaining by protecting workers’ full freedom of association.”1 It also states that the purpose is to protect “workplace democracy by providing employees at private-sector workplaces the fundamental right to seek better working conditions and designation of representation without fear of retaliation.”1
Additionally, other labor acts can provide additional protection from employers who may not be providing employees with the proper time off, pay, and breaks. Some employers try to apply restrictions that are unlawful because they simply do not know it is unlawful. Other employers, though, don’t care. If you know your rights, there is less of a chance that you will be taken advantage of by an ill-informed or outright unethical employer.
Can I temp for another dentist?
I have seen instances where a hygienist was working part-time or had time off from their primary employer and wished to temp for another dentist. However, their primary employer requested that they not temp for another dentist. This can be a gentle request or a downright demand; either way, it is unlawful according to Sec. 8. [§ 158.] (a) [Unfair labor practices by employer] of the NLRA.
Section 8 subsection 4(b) states that an employer cannot require or force an employee to “cease doing business with any other person.” This means your primary employer has no say over what you do on your own time. They can make a request; however, you do not have to honor that request, and furthermore, you cannot be penalized for not honoring the said request. If you want to temp for another dentist or a temp agency, you can do that with or without your primary employer’s blessing.
I will add one caveat, if your employer has an exclusivity or noncompete clause in your employment contract, this could negate this law. Be sure to read any office handbook or employment contract thoroughly before signing it to ensure you understand the expectations, agree with them, and deem them fair.
Can I discuss wages?
I have worked at a few offices that have tried to implement a policy that states employees cannot discuss wages. I found this in the employee handbook/office policy, so make sure you read your office’s policy/handbook thoroughly before you sign it. Nonetheless, this is illegal. Employers cannot make a policy that states employees cannot discuss wages.
There is a small clause here that I need to disclose. Jurisdiction standards for the NLRA regarding health care state “Hospitals, medical and dental offices, social services organizations, childcare centers, and residential care centers with a gross annual volume of at least $250,000 are under NLRB jurisdiction; for nursing homes and visiting nurses associations, the minimum is $100,000.”2 This means if you work in a practice that does not gross $250,000, you may not be covered by the NLRA.
Conversations that are protected include, but are not limited to, discussing pay differences among colleagues, discussing, and presenting joint requests for pay raises, or any other requests concerning pay. You can have these conversations while at work, on a break, or if you are permitted to have other non-work-related conversations on the clock, and, of course, you may discuss wages when not at work as well. The NLRA allows you these rights; no union is necessary.
The next time you are looking for a new position, and your potential employer tries to add a clause to their handbook/office policy that forbids discussing wages, politely advise them that the NRLA states that it is unlawful to have a work rule, policy, or hiring agreement that prohibits employees from discussing wages.3 Having such policies opens the employer to a potential charge filed against them with the National Labor Relations Board (NLRB). The potential employer should thank you for this advice. Unfortunately, often, this is not the case.
Can I be terminated or reprimanded for comments and posts made on social media?
Social media plays a huge role in most lives today. There are endless dental/dental hygiene groups where employees may express grievances and look for advice. Though I will say most of these grievances can be solved by reading one’s state dental practice act, sometimes having moral support is helpful. There have been instances where an employee stated a grievance and was looking for advice, and another employee reported this to the employer. I’m almost certain there were a few instances where the employee was reprimanded or terminated due to the comments/posts.
If a post/comment on social media is a concerted activity, it is protected by the NLRA, and the employee should not fret about being reprimanded or terminated. Concerted activity includes such things as discussing wages, benefits, and working conditions, participating in a concerted refusal to work in unsafe conditions, and talking to the media about problems in your workplace. These concerted activities cannot be egregiously offensive or knowingly and maliciously false.11 However, if the employee is reprimanded or terminated due to the employer’s lack of understanding of the NLRA, then the employee can file a charge against the employer through the NLRB.4
Can I be terminated or reprimanded for taking time off to care for a sick family member?
There is a weird dynamic in the U.S. regarding company loyalty; it often borders on being classified as Stockholm syndrome. Dental hygienists, many of whom are parents, struggle with feeling guilty for needing time off to care for their sick children.
In some instances, you have a right to have this time off under the Family Medical Leave Act (FMLA). The FMLA does provide 12 work weeks of leave in a 12-month period for the birth of a child, adoption, or foster care for a newly placed child, to care for a spouse, child, or parent with a serious health condition.5
Again, there is a clause that states, “private sector employer is covered by the FMLA if they employ 50 or more employees in 20 or more workweeks in the current or previous calendar year.”6 Therefore, if you work for a small private practice, the employer may not be covered by the FMLA. With so many dental support organizations (DSOs) on the scene, the FMLA is becoming more applicable to the dental industry.
Can my employer make me clock out when I have a patient cancel or not show up?
Succinctly, no. As an employee with potential “downtime,” your employer must understand that you are still on the job. This falls under what is classified as on duty waiting time. This is defined by the U.S. Department of Labor as 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.”7
Examples given include receptionists reading a book while waiting for the phone to ring, factory workers talking while waiting for machine repairs, and a fireman playing a board game while waiting for the alarm. Certainly, a dental hygienist writing notes, having a snack, or taking a bathroom break while waiting for their next patient is easily applicable here. This law even allows employees to leave the premises during such times of inactivity, which still counts as hours worked.
Additionally, I’ve seen an uptick in hygienists complaining about arriving to work early to get sterilization set up or staying late to complete notes and not being compensated. This is illegal. If you are on the job, and especially if you are conducting business associated with your position, those are hours worked, and you are entitled to compensation.
What if I need a mental health day or a family member needs mental health care?
Dentistry is very mentally taxing, and many hygienists suffer from anxiety and depression for which they seek treatment. If you work for an employer that is covered under the FMLA, then you are entitled to take leave for chronic conditions, including mental as well as physical conditions. These conditions can range from rheumatoid arthritis to anxiety.
Additionally, this extends to family members such as children and spouses who may be released from a mental health facility or are in an inpatient treatment program for substance abuse that may need care and assistance with daily activities. Doctor’s appointments for children being treated for ADHD are also covered under the FMLA. Therefore, if you need to take your child to the physician for care, your employer cannot punish you for taking that time off, assuming they are a covered employer. With all FMLA-covered leave, up to 12 weeks can be taken.8
What are the rights of nursing mothers who pump at work?
So, you had a baby, congratulations! Now it is time to return to work, but you still want to provide your baby with breast milk. What are your rights in this situation? A new act was signed into law, the PUMP for Nursing Mothers Act, which states employees who are nursing mothers have the right to receive break time and a private place to pump.9
All employers covered by Fair Labor Standards Act (FLSA) are required to comply with the PUMP for Nursing Mothers Act, which not only allows for breaks to express breast milk but also requires space to express breastmilk as frequently needed by the nursing mother up to one year following the birth of the child. The space provided cannot be a bathroom; this space can be a temporary space for the nursing mother, which can be used for other purposes after the nursing mother no longer requires the space. This space could be an extra office area or a financial consult area; there are multiple options in most practices that could serve as a temporary space for pumping mothers and be utilized again to serve the practice after a year.
The breaks are not required to be compensated; however, the employee taking the break must be relieved of all duties, or the break must be compensated. For instance, writing up charts while pumping would require compensation.10
Conclusion
There are so many laws and ethical concerns within health care that it’s difficult to be aware of all the labor laws and acts that have been put in place to protect the employee. It’s also an ever-changing landscape. For example, the PUMP for Nursing Mothers Act was signed into law on December 29, 2022. I hope this article will serve as a resource and be helpful for those of you that feel taken advantage of or those looking for new employment, or even hygienists that are making a transition to office manager.
As with all laws, it is impossible to address every aspect of the different acts in a single article. I’ve only highlighted topics that I have heard hygienists voice concerns about. I encourage you to read these acts and understand the laws. If you feel like your rights have been violated, consulting an employment attorney for guidance may be necessary in the event you can not navigate the laws on your own. Most employers are doing their best to follow labor laws and such, but a few will take advantage of anyone who doesn’t know or understand the laws that protect them as an employee. No one is going to look out for your best interest better than you.
Know your rights!
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References
- The Law: National Labor Relations Act. (n.d.). National Labor Relations Board. https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law
- Jurisdiction Standards. (n.d.). National Labor Relations Board. https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/jurisdictional-standards
- Your Right to Discuss Wages. (n.d.). National Labor Relations Board. https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/your-rights-to-discuss-wages
- The NLRB and Social Media. (n.d.). National Labor Relations Board. https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/the-nlrb-and-social-media
- Family and Medical Leave Act. (n.d.). United States Department of Labor: Wage and Hour Division. https://www.dol.gov/agencies/whd/fmla
- The Employer’s Guide to The Family and Medical Leave Act. (n.d.). United States Department of Labor: Wage and Hour Division. https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employerguide.pdf
- FLSA Hours Worked Advisor. (n.d.). United States Department of Labor. https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenER78.asp
- Mental Health and the FMLA. (n.d.). United States Department of Labor: Wage and Hour Division. https://www.dol.gov/agencies/whd/fmla/mental-health
- FLSA Protections to Pump at Work. (n.d). United States Department of Labor: Wage and Hour Division. https://www.dol.gov/agencies/whd/nursing-mothers
- Frequently Asked Questions – Break Time for Nursing Mothers. (n.d). United States Department of Labor: Wage and Hour Division. https://www.dol.gov/agencies/whd/nursing-mothers/faq
- Concerted Activity. (n.d.). National Labor Relations Board. https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/concerted-activity
