Human Resources Questions for Dentists: Pregnant employees’ rights; paying overtime in a 4-office practice

The human resources landscape is constantly changing. Dentists have ongoing questions about how to handle staff issues. Take this month's questions, for instance. Can this dentist fire a new employee for revealing she's pregnant? Does this dentist need to pay overtime to an employee who works for the dentist's "umbrella corporation"?

QUESTION: I recently hired a new employee. She’s been here only a few weeks. She just informed me that she is 12 weeks pregnant, and this news has me upset. I live in a state that requires leave and job protection for pregnancy—the whole nine yards! I wouldn’t be so upset if she had been upfront about her situation during the hiring process. I’m not even sure I want to keep her employed here, but she’s too new to tell. Plus, since she hid this from me, I’m worried she can’t be trusted. What can I do? Do I have to keep her on staff?

ANSWER: Sadly, you’re showing the classic signs of discrimination—the immediate response of firing a woman when a pregnancy is shared with the employer. I realize that you say things would be different if she had reported the pregnancy initially, but we don’t really know that. Thus, this perfectly illustrates why women are not required to divulge such information at any point during the hiring process.

This employee has done nothing wrong. While there will eventually be some legal obligations (as you pointed out), the pregnancy does not change this person’s qualifications for the job. If she was good enough to hire before her announcement, then she should still be good enough to remain employed with you so that you can see if it will work out in the long run.

A pregnancy does make a potential termination a higher risk. It’s not impossible to fire a pregnant employee, but it requires work on the part of the employer. In other words, employers must do their due diligence to properly manage the employee through counseling and documenting prior to taking that action just in case the pregnant employee claims that something illegal occurred.

In the meantime, this employee should be treated normally. For all we know, she will be an excellent employee, and everyone will love her, and this pregnancy will be only a minor blip in an otherwise mutually beneficial relationship. This doesn’t have to be negative. If it turns out to be a hiring mistake, there are ways to address it, as is always the case with any new employee. You need only to receive proper guidance in managing it before doing something you will later regret.

QUESTION: We have four practices within a few miles of each other. We have one umbrella corporation for all practice locations, but each practice has an independent owner. Each practice, including the main corporation, has its own tax ID numbers. The corporation handles things such as payroll for all practices, but each owner “pays back” the corporation for the hours their employees work. Employees move from one practice to another during the week, as scheduling requires.

We now have an employee who is stating that he is working overtime during the week and should be paid for that time. I disagree. The hours he puts in at another employer should not affect me. How can I tell my employee this and not create more problems?

ANSWER: The truth is that your employee is correct. If his hours spent working at the various locations are totaling more than 40 hours in a week (or in a daily requirement, if applicable), then overtime pay is required. This is because the situation you describe with the corporation and each practice is considered “joint employment.”

Here is a summary of what joint employment means: A determination of whether the employment by the employers is to be considered joint employment or separate and distinct employment for purposes of the Fair Labor Standards Act (FLSA) depends upon all of the facts in the particular case. If all of the relevant facts establish that two or more employers are acting entirely independently of each other and are completely disassociated with respect to the employment of a particular employee, who during the same workweek performs work for more than one employer, each employer may disregard all work performed by the employee for the other employer (or employers) in determining his own responsibilities under the FLSA. On the other hand, if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s), all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the FLSA. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the FLSA, including the overtime provisions, with respect to the entire employment for the particular workweek.

Since your description clearly indicates that all practices are not “completely disassociated” from each other, you must ensure overtime is paid when it is worked between all practices during the week.

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