More Dental Workers Likely to Be Considered Employees Not Independent Contractors Under Final Department of Labor Rule
May 21, 2024
Like owners of other businesses, dental practice owners often hire staff members as independent contractors rather than as employees. They do so to keep expenses down, minimize tax obligations, and reduce time spent worrying about personnel and payroll matters such as overtime pay, sick leave, insurance, and other employment law issues. Ultimately, however, whether an associate dentist, hygienist, or other team member is appropriately classified as an employee or contractor isn’t up to the practice owner. It is up to the law and the rules promulgated by the U.S. Department of Labor (DOL). And under a DOL Final Rule that became effective on March 11, 2024, more dental workers are now likely to be considered employees instead of contractors, no matter what label a practice owner uses for them.
The Final Rule, which was initially published in January 2024, revises the DOL’s analysis for determining employee or independent contractor classification under the Fair Labor Standards Act (FLSA). Specifically, the new Final Rule rescinds a rule promulgated under the previous administration which identified five “economic reality factors” to be used in determining whether a worker was an employee or independent contractor. Under the prior rule, two of the five factors— “the nature and degree of control over the work and the worker's opportunity for profit or loss” were designated as “core factors” that were to carry more weight in the analysis.
Six-Factor “Economic Reality Test” To Determine Proper Classification
That rule was generally seen as more employer-friendly in that it made it easier to classify a worker as a contractor. Under the new Final Rule, the “core factors” mentioned above are no longer part of the analysis. Instead, the new rule uses a “totality-of-the-circumstances” approach and an “economic reality test” that looks at the economic reality of the worker’s activities and the nature of the working relationship with the employer.
The new rule sets forth six factors to be used in determining whether the “economic realities of the working relationship” reveal a worker to be economically dependent on the employer – in which case they would be likely considered an employee – or whether the worker is in business for themselves such that they are an independent contractor. These factors, described in the economic reality test of the final rule, are:
- opportunity for profit or loss depending on managerial skill;
- investments by the worker and the potential employer;
- degree of permanence of the work relationship;
- nature and degree of control;
- extent to which the work performed is an integral part of the potential employer’s business; and
- skill and initiative.
No one factor or subset of factors determines if a worker is an employee or independent contractor. Rather, all the circumstances of the relationship should be examined. The weight given to each factor may depend on the facts and circumstances of the particular relationship. Also, additional factors may be relevant if they in some way indicate if the worker is in business for themself as opposed to being economically dependent on the employer for work.
In the case of associate dentists, these factors in the abstract would likely make most such practitioners employees rather than contractors. As noted, however, the ultimate determination as to the proper classification comes down to the specific circumstances of each employment relationship.
In conjunction with the publication of the Final Rule, the DOL has issued guidance for employers through Frequently Asked Questions and a Small Entity Compliance Guide. These resources provide important insights for dental practice owners as they evaluate the status of their current employment relationships and make any needed adjustments to comport with the new rule’s classification standards. However, given the fact-specific nature of the classification analysis established by the rule, practice owners are strongly advised to consult with experienced counsel to ensure compliance. The financial cost of non-compliance to the practice can be substantial, but it can also cost owners personally, as they can be held liable individually for any intentional misclassification.
To avoid such consequences, dental practice owners should discuss any questions or concerns with an experienced employment and dental practice attorney.
At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you.
Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation.
Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
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Recent amendments to the Illinois Dental Practice Act (the “Act”), which Gov. JB Pritzker is expected to soon sign into law, will make it easier for newly minted dental professionals to begin practicing while their license applications are pending. The amendments, which would take effect on January 1, 2026, establish the following criteria under which license-pending dentists and dental hygienists can practice under the delegation of a licensed general dentist: The Applicant has completed and passed the IDFPR-approved licensure exam and presented their employer with an official written notification indicating such; The Applicant has completed and submitted the application for licensure; and The Applicant has submitted the required licensure fee. Once obtained, authorization for dentists and dental hygienists to practice under these provisions can be terminated upon the occurrence of any of the following: The Applicant receives their full-practice license; IDFPR provides notification that the Applicant’s application has been denied; IDFPR requests that the Applicant stop practicing as a license-pending dentist/dental hygienist until the Department makes an official decision to grant or deny a license to practice; or Six months have passed since the official date of the Applicant’s passage of the licensure exam (i.e., the date on the formal written notification of such from the Department). IDFPR has yet to post anything on its website regarding these amendments, but we will provide an update if and when it does. If you have any questions about these new provisions regarding the employment of license-pending dentists and hygienists, please contact Grogan Hesse & Uditsky today at (630) 833-5533 or contact us online to arrange for your free initial consultation. We focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
As all dental practice owners know, insurance companies frequently make adjustments to their reimbursement amounts, leading to the common circumstance that a patient who paid a certain amount at the time of treatment may be entitled to a credit from the practice. That credit, usually kept on the practice’s books so that the patient can apply it to future services, has two distinct qualities that have significant legal and financial implications when a practice is about to be purchased or sold. Failure to account for and address such outstanding patient credits early in a transaction can lead to unwanted surprises as well as potentially costly penalties. That is because a patient credit is not only a liability on the books of the practice, it is also the as-yet unclaimed personal property of the patient. That latter characteristic comes with legal obligations under state unclaimed property laws. If you are buying or selling a dental practice, here is what you need to know about handling patient credits during and after the transaction. Accounting For Credits in the Purchase Price More often than not, unused patient credits remain just that – unused. If a practice purchaser knew for an absolute certainty that the patient would never return and ask for the credit to be applied to new services, it would not impact the underlying practice valuation or sale price. Of course, nothing is certain, and if a practice has thousands, tens of thousands, or hundreds of thousands of credits on the books, even a fraction of those credits, if redeemed, could have a significant impact on the practice’s profitability. That is why any patient credits should be disclosed, identified, and addressed as early in the transaction as possible so that neither the buyer nor seller find themselves in the uncomfortable position of renegotiating the purchase price or providing the buyer with a credit. Reporting and Accounting Obligations Under Unclaimed Property Laws Any business holding goods or funds that belong to a customer, client, or other company or individual cannot simply pocket that property or money because its owner may have forgotten about it or is unaware of its existence. If a business holding such property, which includes patient credits, loses contact with the owner for a certain period set by law (called the “dormancy period”), the company effectively becomes the trustee of that property, holding it for the benefit of the owner until they make a claim for its return. In Illinois, that claim may come after the owner searches the Illinois State Treasurer’s unclaimed property database . The information in that database comes from businesses that must provide the Treasurer’s Office with detailed and frequent reports about any unclaimed property they hold pursuant to the requirements of Illinois’ Revised Uniform Unclaimed Property Act (the “Act”). Most U.S. states have adopted this model act, so the following discussion of Illinois’ version is representative of unclaimed property laws generally. When Does Property Become “Unclaimed”? As noted, property is considered unclaimed and abandoned if it has not had any activity within a designated “dormancy period” and the holder is unable to locate the property owner. Under Sec. 15-201 of the Act, the dormancy period is three years for most types of property, though others have longer or shorter periods. For example, there is a 15-year period for traveler's checks, a five-year period for money orders, and a one-year period for payroll checks. Patient credits would fall under the three-year period. Reporting and Notice Obligations For Holders of Unclaimed Property Any for-profit and not-for-profit business entities that conduct business in Illinois are required to electronically report unclaimed property to the Treasurer’s Office on an annual basis. Even businesses not holding any unclaimed property must file a negative report advising as such if they meet any of the following criteria: Annual sales of more than $1,000,000; Securities that are publicly traded; A net worth of more than $10,000,000; or More than 100 employees. The deadline for Illinois dental practices to file unclaimed property reports for unused patient credits is May 1 of each year. The report should reflect one year of account activity three years prior to the last calendar year. Example: If your report is due May 1, 2018, your report will cover activity from January 1, 2014, through December 31, 2014. The detailed requirements as to what must be included in the report are set forth in Section 760.410 of the Illinois Administrative Code . At the same time the report is filed, unclaimed property must be remitted to the Treasurer’s Office. Holders of unclaimed property also must make efforts to reach out to the owner before filing their report and remitting the property. Specifically, the holder of property presumed abandoned shall send a due diligence notice to the apparent owner by first-class U.S. Mail between 60 days and one year before reporting the property. The required contents of the due diligence notice are set forth in Section 760.460 of the Illinois Administrative Code . Consequences of Non-Compliance Holders of unclaimed property face significant penalties for failing to comply with the reporting, notice, and remittance requirements of the Act. Interest and penalties may be imposed on the failure to file, pay, or deliver property by the required due date. Specifically, the state can charge interest at 1% per month on the value of the unreported/unpaid property and impose a penalty of $200 per day up to a maximum of $5,000 until the date a report is filed or the unclaimed property is paid or delivered. For businesses that may have neglected their obligations under the Act, Illinois (and most other states that have adopted the uniform act) offers a Voluntary Disclosure Agreement (VDA) program for unclaimed property holders. In exchange for voluntary compliance through an executed VDA, the Treasurer's Office will agree to forgo the right to assess penalties and interest outlined in the Act. How To Address Unclaimed Property Obligations in a Practice Sale As part of transactional due diligence, a practice purchaser should ensure that the seller has satisfied all of its reporting obligations under applicable law. If it has not, the purchaser should require the seller to complete a Voluntary Disclosure Agreement prior to closing and also include a robust indemnification clause in the purchase agreement should the practice later face penalties for noncompliance. Because of the financial complexities and legal risks involved relating to unclaimed patient credits, practice buyers and sellers alike should consult with experienced counsel to help them navigate this significant and oft-neglected aspect of the practice’s finances and operations. If you are a dental professional considering a sale, acquisition, or merger, please contact us at ddslawyers.com at (630) 833-5533 or contact us online to arrange for your complimentary initial consultation. We focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
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Recent amendments to the Illinois Dental Practice Act (the “Act”), which Gov. JB Pritzker is expected to soon sign into law, will make it easier for newly minted dental professionals to begin practicing while their license applications are pending. The amendments, which would take effect on January 1, 2026, establish the following criteria under which license-pending dentists and dental hygienists can practice under the delegation of a licensed general dentist: The Applicant has completed and passed the IDFPR-approved licensure exam and presented their employer with an official written notification indicating such; The Applicant has completed and submitted the application for licensure; and The Applicant has submitted the required licensure fee. Once obtained, authorization for dentists and dental hygienists to practice under these provisions can be terminated upon the occurrence of any of the following: The Applicant receives their full-practice license; IDFPR provides notification that the Applicant’s application has been denied; IDFPR requests that the Applicant stop practicing as a license-pending dentist/dental hygienist until the Department makes an official decision to grant or deny a license to practice; or Six months have passed since the official date of the Applicant’s passage of the licensure exam (i.e., the date on the formal written notification of such from the Department). IDFPR has yet to post anything on its website regarding these amendments, but we will provide an update if and when it does. If you have any questions about these new provisions regarding the employment of license-pending dentists and hygienists, please contact Grogan Hesse & Uditsky today at (630) 833-5533 or contact us online to arrange for your free initial consultation. We focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
As all dental practice owners know, insurance companies frequently make adjustments to their reimbursement amounts, leading to the common circumstance that a patient who paid a certain amount at the time of treatment may be entitled to a credit from the practice. That credit, usually kept on the practice’s books so that the patient can apply it to future services, has two distinct qualities that have significant legal and financial implications when a practice is about to be purchased or sold. Failure to account for and address such outstanding patient credits early in a transaction can lead to unwanted surprises as well as potentially costly penalties. That is because a patient credit is not only a liability on the books of the practice, it is also the as-yet unclaimed personal property of the patient. That latter characteristic comes with legal obligations under state unclaimed property laws. If you are buying or selling a dental practice, here is what you need to know about handling patient credits during and after the transaction. Accounting For Credits in the Purchase Price More often than not, unused patient credits remain just that – unused. If a practice purchaser knew for an absolute certainty that the patient would never return and ask for the credit to be applied to new services, it would not impact the underlying practice valuation or sale price. Of course, nothing is certain, and if a practice has thousands, tens of thousands, or hundreds of thousands of credits on the books, even a fraction of those credits, if redeemed, could have a significant impact on the practice’s profitability. That is why any patient credits should be disclosed, identified, and addressed as early in the transaction as possible so that neither the buyer nor seller find themselves in the uncomfortable position of renegotiating the purchase price or providing the buyer with a credit. Reporting and Accounting Obligations Under Unclaimed Property Laws Any business holding goods or funds that belong to a customer, client, or other company or individual cannot simply pocket that property or money because its owner may have forgotten about it or is unaware of its existence. If a business holding such property, which includes patient credits, loses contact with the owner for a certain period set by law (called the “dormancy period”), the company effectively becomes the trustee of that property, holding it for the benefit of the owner until they make a claim for its return. In Illinois, that claim may come after the owner searches the Illinois State Treasurer’s unclaimed property database . The information in that database comes from businesses that must provide the Treasurer’s Office with detailed and frequent reports about any unclaimed property they hold pursuant to the requirements of Illinois’ Revised Uniform Unclaimed Property Act (the “Act”). Most U.S. states have adopted this model act, so the following discussion of Illinois’ version is representative of unclaimed property laws generally. When Does Property Become “Unclaimed”? As noted, property is considered unclaimed and abandoned if it has not had any activity within a designated “dormancy period” and the holder is unable to locate the property owner. Under Sec. 15-201 of the Act, the dormancy period is three years for most types of property, though others have longer or shorter periods. For example, there is a 15-year period for traveler's checks, a five-year period for money orders, and a one-year period for payroll checks. Patient credits would fall under the three-year period. Reporting and Notice Obligations For Holders of Unclaimed Property Any for-profit and not-for-profit business entities that conduct business in Illinois are required to electronically report unclaimed property to the Treasurer’s Office on an annual basis. Even businesses not holding any unclaimed property must file a negative report advising as such if they meet any of the following criteria: Annual sales of more than $1,000,000; Securities that are publicly traded; A net worth of more than $10,000,000; or More than 100 employees. The deadline for Illinois dental practices to file unclaimed property reports for unused patient credits is May 1 of each year. The report should reflect one year of account activity three years prior to the last calendar year. Example: If your report is due May 1, 2018, your report will cover activity from January 1, 2014, through December 31, 2014. The detailed requirements as to what must be included in the report are set forth in Section 760.410 of the Illinois Administrative Code . At the same time the report is filed, unclaimed property must be remitted to the Treasurer’s Office. Holders of unclaimed property also must make efforts to reach out to the owner before filing their report and remitting the property. Specifically, the holder of property presumed abandoned shall send a due diligence notice to the apparent owner by first-class U.S. Mail between 60 days and one year before reporting the property. The required contents of the due diligence notice are set forth in Section 760.460 of the Illinois Administrative Code . Consequences of Non-Compliance Holders of unclaimed property face significant penalties for failing to comply with the reporting, notice, and remittance requirements of the Act. Interest and penalties may be imposed on the failure to file, pay, or deliver property by the required due date. Specifically, the state can charge interest at 1% per month on the value of the unreported/unpaid property and impose a penalty of $200 per day up to a maximum of $5,000 until the date a report is filed or the unclaimed property is paid or delivered. For businesses that may have neglected their obligations under the Act, Illinois (and most other states that have adopted the uniform act) offers a Voluntary Disclosure Agreement (VDA) program for unclaimed property holders. In exchange for voluntary compliance through an executed VDA, the Treasurer's Office will agree to forgo the right to assess penalties and interest outlined in the Act. How To Address Unclaimed Property Obligations in a Practice Sale As part of transactional due diligence, a practice purchaser should ensure that the seller has satisfied all of its reporting obligations under applicable law. If it has not, the purchaser should require the seller to complete a Voluntary Disclosure Agreement prior to closing and also include a robust indemnification clause in the purchase agreement should the practice later face penalties for noncompliance. Because of the financial complexities and legal risks involved relating to unclaimed patient credits, practice buyers and sellers alike should consult with experienced counsel to help them navigate this significant and oft-neglected aspect of the practice’s finances and operations. If you are a dental professional considering a sale, acquisition, or merger, please contact us at ddslawyers.com at (630) 833-5533 or contact us online to arrange for your complimentary initial consultation. We focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
Once again, mandatory Beneficial Ownership Information (BOI) reporting deadlines under the Corporate Transparency Act (CTA) have been put on hold. Not only have all deadlines been scrapped but domestic reporting companies may soon be permanently relieved of any CTA obligations whatsoever. Just days after stating it would enforce new March 21, 2025 deadlines, FinCEN issued a February 27, 2025, alert announcing that “ it will not issue any fines or penalties or take any other enforcement actions against any companies based on any failure to file or update” BOI reports by the current deadlines “until a forthcoming interim final rule becomes effective and new relevant due dates in the interim final rule have passed. FinCEN said that no later than March 21, 2025, it “intends to issue an interim final rule that extends BOI reporting deadlines, recognizing the need to provide new guidance and clarity as quickly as possible, while ensuring that BOI that is highly useful to important national security, intelligence, and law enforcement activities is reported.” Just two days after FinCEN’s announcement suspending existing deadlines, the Department of the Treasury went even further. In a March 2, 2025 release , the department said that “not only will it not enforce any penalties or fines associated with the beneficial ownership information reporting rule under the existing regulatory deadlines, but it will further not enforce any penalties or fines against U.S. citizens or domestic reporting companies or their beneficial owners after the forthcoming rule changes take effect either.” That is because “the Treasury Department will further be issuing a proposed rulemaking that will narrow the scope of the rule to foreign reporting companies only.” The bottom line is that it appears the new administration has decided to kill the CTA altogether as to domestic reporting companies. We will, of course, provide updates as warranted. If you have questions about this latest development or the CTA generally, please contact Jordan Uditsky at Grogan Hesse & Uditsky, P.C.
