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Question
I am a dental hygienist in Texas that gets paid a set amount per day except for the half day on Friday. On Friday the pay is reduced from all of the other days. This is the agreement that I have been working under for my entire time with this employer of ten years. I am required to sign a new employment agreement every year.
 
  Today 1/31/13 I received a letter from my employer stating that beginning the next Monday 2/4/13 my pay will be based on commission only. That would normally not be a problem but if patients cancel then I get no pay for the time I am there preparing for my scheduled patients. Essentially I will not be getting paid even though I am expected to make reminder calls, schedule more patients and prepare charts, sterilize instruments, restock supplies, etc.. Now that I've laid it out my questions are:

1. Shouldn't I get paid for any work function I do at the office? Is this a violation of the FLSA of the Texas labor code?

2. I thought the law states that the employer needs to give sufficient notification time to  the employee so that a decision can be made as to future employment.

3. Is one business day enough time to make that kind of decision or ample time to seek other employment? The doctor wants me to sign this new contract on Monday 2/4/13.

 This really puts me in a bind where I go from a steady income to one that is seems extremely unfair whereby I am at the mercy of whether or not the patient shows up. Another factor is that some patients by the structure of their insurance create little or no commission, yet they are just as labor intensive as every other patient. The doctor gets a big monthly check for being on this program but as a hygienist I will only get commission on the co-pay amount.

I have been practicing hygiene for 31 years. I have recently returned from a short term disability for which I was not compensated for. I am at full production level and have never had any discipline or attendance problems. Your thoughts would be greatly appreciated.

Thank you in advance,
Robi

Answer
Robi:

Employers have a great deal of flexibility in determining how to compensate their employees do long as they pay at least the minimum wage.  In the case of an employee who is compensated solely on a commission basis, your total commissions must at least equal the minimum wage ($7.25 per hour in Texas) for all hours actually worked during a calendar week.  If you are required to do any particular task for the benefit of the employer, or even if you are not doing anything productive but are required to remain on the employer's premises, that time constitutes "work time" under Federal law and you must be paid for it.

Since you haven't worked on this commission plan before, obviously you don't yet know how the numbers will work out, but you should keep careful records of your time worked and your weekly pay so you can determine whether your total equals or exceeds an average rate for the calendar week of $7.25 per hour.  

In addition, in the event you are ever required to work more than 40 hours in a calendar week, you would be entitled to overtime compensation for all hours over 40, at a rate of at least one and one half times the minimum wage per hour.  (There is an exception to the overtime rule for commissioned employees of certain "retail and service establishments", but a dental office does not qualify for this exception.)

As for your other questions, there is no legal requirement in Texas that you be given any certain minimum notice before an employer can change your method of compensation.  It certainly is not reasonable or fair, in my view, to give you only a weekend to decide without any offer of severance pay should you decline to stay under the new rules, but the employer is within his legal rights to do so.

Both the Texas Workforce Commission and the U.S. Department of Labor are able to investigate claims of failure to pay the minimum wage, should that unpleasant situation occur in your case.

I hope this is helpful to you.  

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Frank C. Magill

Expertise

I can answer questions about any U.S. labor or employment law question. I cannot answer questions about non-US law. I am not a specialist in employee benefit law (ERISA and HIPAA) or Workers' Compensation law, but will do my best to point questioners toward good resources availabe online. Expertise includes, without limitation, EEO/Affirmative Action/Employment discrimination (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, GINA, Fair Credit Reporting Act as applied to employment); Fair Labor Standards Act; Texas labor code; Family Medical Leave Act; employee compensation; discipline and dismissal; force reductions, severance pay programs and administration; collective bargaining, union representation, grievances and arbitration, National Labor Relations Act and National Labor Relations Board; employee handbooks; staffing; dispute resolution outside of traditional labor agreements; employee communications; employment policies and compliance programs; codes of ethics; employment or labor litigation.

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30+ years experience as corporate counsel for a Fortune 100 telecom company, specializing in labor and employment law issues. In addition to providing day-to-day advice to my company's internal HR leadership and staff, I've represented the company in numerous labor arbitration cases and at the bargaining table.

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Texas, Illinois and Missouri state bars

Education/Credentials
J.D. 1979, Harvard Law School. B.A., Summa Cum Laude, 1976, Illinois Wesleyan University.

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