Staff Management

Are You Violating Compensation Law?

By Pamela Miller, OD, FAAO, JD, FNAP

August 21, 2019

Your employees are the most essential part of your office, serving on the front lines with patients. They are often the first and last people in the office that patients have contact with.

Could the way in which you are compensating them be placing your practice in legal peril?

Check State Employment Laws
Your local and state Chamber of Commerce, your state optometric board and your personal attorney can all be helpful in determining your legal requirements to employees. The laws governing employment differ by state, so it’s important to review the specific laws of the state in which you practice.

For example, in the state where I live and practice, California, employees of any business, private or public, are entitled to at least three paid sick days annually. California also has passed the Worker’s Compensation Act, which places requirements on businesses that have employees who are injured on the job.

Like many other states, California is an “at-will employment” state, meaning employees can be fired at any time for nearly any reason, except for a few specific reasons, such as racial and religious discrimination.

Create a Contract for Each Employee
You should have a formal contract between you, as the employer, and each employee. That contract should be reviewed by your attorney before being put into use. Both the practice owner and employee should read it, agree to the terms and sign it.

In addition to listing office policies, such as what qualifies as harassing behaviors, and other potentially job-ending offenses, the contract should list the days and times the employee is expected to work, and how the compensation structure has been set up. The annual salary, or hourly wage, should be stipulated.

If the contract is for an associate OD, the contract can also include when, if ever, the associate will have the option to buy into the practice, and whether they are required to carry their own malpractice insurance coverage.

In addition, the contract should state when, if ever, benefits, like health insurance, vacation time and 401k become available. The employee needs to agree in the contract, for instance, if they won’t start receiving health insurance from you until they have been on the job for at least a few months.

Be sure to also state in the contract the guaranteed time the employee will be provided off the job each day for lunch, and how many breaks they are permitted, and how long each break is allowed to be. These are points that state law may cover.

There are employment contract templates available online. Be sure to find an employment contract specific to the state in which you practice.

Your Employees Don’t Have to Say “Yes” to Overtime
The employee is under no obligation to work overtime, or work when not scheduled in advance to. Religion may play a factor in an employee’s refusal to work at a time outside their agreed-to hours, such as a Jewish employee, who is not able to come into the office on a Saturday because they observe the Sabbath that day.

If you know that your office sometimes requires employees to work at night, or on the weekends, you should ensure, before making a job offer to an employee, that they are able to work at all times you may need them, provided you give them an agreed-to amount of advance notice. Then, include in their employment contract the agreement they made with you to work overtime on nights and on the weekends when necessary. A statement in the contract that work days and hours may vary can give you wiggle room in your overtime requests to employees.

Overtime Pay Regulated By State
State laws govern hours and compensation structure for overtime and holidays. Your state might require that you pay time-and-a-half for employees who are asked to work on a public holiday. You also may have to pay more per hour after an eight-hour workday has been exceeded, although there may be exceptions, like a 4/10 work week.

Most States Require Interns to Be Paid in Wages or School Credit
There are two different types of student employees in OD offices, one is an intern who comes in to help with administrative tasks like billing, and those who come into the office as optometric externs, an arrangement typically set up by the extern’s optometry school. Externs are usually not paid because they are getting experience and school credit. This is different from the part-time intern who is working in the office to get experience with medical billing, and whom you would need to pay.

As a general rule, interns need to be compensated with money or school credit.

“Reasonable Accommodation” & Family and Medical Leave
If an employee gets sick, or has an injury, like a broken hip, all states require employers to make “reasonable accommodation” for that employee. For example, you may need to get an employee a different kind of chair, allow them to do some of their job sitting, rather than standing, or you may even need to hire a temporary part-time employee to help out with tasks the ailing employee is not able to manage.

It would be appropriate to limit the time an employee can be off due to injury or illness (or that of a family member), but you would need to be certain to comply with state law. If you hire military personnel, be sure to check the rules to make certain you are in compliance. Remember that, as a general rule, you cannot fire someone who is serving our country.

If an employee has a personal, or family, health issue that keeps them from the office, they are legally entitled, under the federal Family and Medical Leave Act to have you hold their job for at least three months. However, you do not have to pay them during that time, although this may be different in your state, so be sure to double-check your state laws.

Employee compensation tends to change from state to state, from year to year, and may be governed by federal law. An employment attorney may be your best resource to be certain that you are covering all your bases and minimizing your legal risks.

 

Pamela Miller, OD, FAAO, JD, FNAP, has a solo optometric practice in Highland, Calif. She has a law degree, holds a therapeutic license, is California State Board-certified and glaucoma-certified to prescribe eye medications, and offers comprehensive vision care, contact lenses, visual therapy and low vision services. To contact her: drpam@omnivision.com.

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