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"I'm a dental hygienist. Can I be an independent contractor?"

Can dental offices classify dental hygienists as independent contractors, instead of as employees? There’s no shortage of people willing to offer opinions on the matter—practice owners, hygienists, teachers, consultants. Often, they all fall into one of two camps.

Some will tell you that a dental office is completely within its rights to treat you as an independent contractor, if that’s what you agreed to. Others will tell you that it’s straight up illegal for a dental office to classify you as an independent contractor.

So, which is it? 

In truth, it depends. Anyone who tells you differently doesn’t have all the information.

Let’s start with the basics.

Read our newer article >> "Can i be an independent contractor?"

What makes someone an independent contractor?

Depending on the situation, there are a number of different tests that can apply to this question. To give you just a glimpse of the complexity—and why there’s so much confusion around this issue—the IRS, the DOL and your state and local authorities, all apply different tests. So, if the question arises in the context of federal tax withholdings, the IRS’s “Control Test” might apply; if the question arises in the context of a FLSA violation, then the DOL’s “Economic Realities Test” could apply; and if a Title VII, ADA or ERISA violation is at issue, then the “Darden” common law test (a.k.a. the “20-Factor Test”) could apply. And, finally, some courts use a hybrid test, blending elements of the Darden test with the Economic Realities Test. See, e.g., Alexander v. Avera St. Luke’s Hosp., 768 F.3d 756, 764 (8th Cir. 2014) and Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117, 118-19 (5th Cir. 1993). In fact, each State has its own local laws that can add even more variance. A simple summary of these tests across all 50 states comes in at around 150 pages!

Head SpinningIs your head spinning yet? The good news is that, despite the complexity, the 20-Factor Test—currently incorporated by the IRS in its analysis and, also, frequently cited by state agencies—offers a fairly reliable benchmark for most circumstances. If you’re an independent contractor under the 20-Factor Test, the same result is likely true under the other tests.

The 20-Factor Test

Here's a handy table that breaks down the 20 factors and summarizes when each can favor or disfavor classification as an independent contractor.

 

Employee

Independent Contractor

Instruction

Receives instruction and direct supervision from employer, regarding details of work

Is free to exercise own judgment concerning the details of work

Training

Is trained by the employer

Does not need training, but rather comes to the job with the requisite skill set

Integration

Performs a function that is part of the employer’s regular business

Performs a function that is separate from the contractor’s regular business

Personal services

Does not have the right to hire or delegate work to others

Has the right to hire and delegate work to others

Payment of helpers

Does not pay for his/her own assistants (if applicable)

Pays for his/her own assistants (if applicable)

Continuing relationship

Performs ongoing work for the employer

Works for a day or for a project, but does not have a regular working relationship with the contractor

Set working hours

Is required to work the times and days specified by the employer

Sets his/her own schedule

Full-time or exclusive work

Works full-time and/or exclusively for the employer

Is free to work for many companies simultaneously

Location of services

Is required to perform the work at the employer’s premises

Is free to work where he/she chooses

Specifying the sequence of work

Is required to follow a specific order or sequence of work

Is free to set own sequence or order of work

Reports

Receive oral or written reports on a regular basis from the employer, concerning job performance

Does not receive regular evaluations from the contractor

Payments

Is paid regularly through employer’s payroll

Is paid upon completion of an assignment, after invoicing

Business/travel expense

Receives reimbursement of expenses through the employer

Pays for own travel costs, licensing fees, continuing education, insurance, etc.

Tools and materials

Is supplied with tools by the employer

Brings his/her own tools to the job

Investment

Receives reimbursement of expense through the employer

Pays for own licensing fees, continuing education, insurance, etc.

Profits/Loss

Does not receive a share of profits and/or losses

May sustain losses as a result of market forces or business downturns; responsible for growing own market presence, brand, etc.

Number of companies

Is dependent on a single company for income

Can choose to work for multiple companies and select amongst competing assignments

Advertisement

Does not advertise to the public

Advertises to the public (e.g., business cards, online profiles, networking)

Termination

Can be terminated “at-will” without further pay

Termination still requires full or partial payment for purchased services.

Quitting

Can quit “at-will” without incurring any liability to employer

Is contractual bound to complete assignment or may be liable to contractor for failure to render services

Now, it’s important to understand that no one factor is controlling. Rather, adjudicators take a comprehensive view of the entire relationship in an effort to ascertain the degree of the worker’s independence. Also of relevance, though not determinative, is the office and the hygienist’s own written characterization of their relationship. So, make sure to have a written agreement in place.

The 20 Factors Applied

Let’s see what the 20-Factor Test says for two common scenarios. 

Example 1: You are a full-time hygienist working Monday through Friday at a single dental office. You’ve been working there for over a month now. Employee or independent contractor? Here’s how things look on our 20-Factor table.

Green boxes mean the row favors independent contractor status. Blue boxes mean the row favors employee status. Yellow means the factor in question could go either way, depending on the circumstances.

 

Employee

Independent Contractor

Instruction

Receives instruction and direct supervision from employer, regarding details of work

Is free to exercise own judgment concerning the details of work

Training

Is trained by the employer

Does not need training, but rather comes to the job with the requisite skill set

Integration

Performs a function that is part of the employer’s regular business

Performs a function that is separate from the contractor’s regular business

Personal services

Does not have the right to hire or delegate work to others

Has the right to hire and delegate work to others

Payment of helpers

Does not pay for his/her own assistants (if applicable)

Pays for his/her own assistants (if applicable)

Continuing relationship

Performs ongoing work for the employer

Works for a day or for a project, but does not have a regular working relationship with the contractor

Set working hours

Is required to work the times and days specified by the employer

Sets his/her own schedule

Full-time or exclusive work

Works full-time and/or exclusively for the employer

Is free to work for many companies simultaneously

Location of services

Is required to perform the work at the employer’s premises

Is free to work where he/she chooses

Specifying the sequence of work

Is required to follow a specific order or sequence of work

Is free to set own sequence or order of work

Reports

Receive oral or written reports on a regular basis from the employer, concerning job performance

Does not receive regular evaluations from the contractor

Payments

Is paid regularly through employer’s payroll

Is paid upon completion of an assignment, after invoicing

Business/travel expense

Receives reimbursement of expenses through the employer

Pays for own travel costs, licensing fees, continuing education, insurance, etc.

Tools and materials

Is supplied with tools by the employer

Brings his/her own tools to the job

Investment

Receives reimbursement of expense through the employer

Pays for own licensing fees, continuing education, insurance, etc.

Profits/Loss

Does not receive a share of profits and/or losses

May sustain losses as a result of market forces or business downturns; responsible for growing own market presence, brand, etc.

Number of companies

Is dependent on a single company for income

Can choose to work for multiple companies and select amongst competing assignments

Advertisement

Does not advertise to the public

Advertises to the public (e.g., business cards, online profiles, networking)

Termination

Can be terminated “at-will” without further pay

Termination still requires full or partial payment for purchased services.

Quitting

Can quit “at-will” without incurring any liability to employer

Is contractual bound to complete assignment or may be liable to contractor for failure to render services

As you can see, pretty much every single factor favors your treatment as an employee. It would be very difficult for a dental office to legally support an alternative position. In this situation, you should insist that the office treat you as an employee.

Example 2. You are a dental hygienist that works Monday through Wednesday for one office, and you pick up additional work through Cloud Dentistry on your days off. You control when you work, where you work and how much you make. For your Thursday and Friday offices--are you an employee or an independent contractor? Though individual circumstances may vary, here’s how it generally looks on our handy table:

 

Employee

Independent Contractor

Instruction

Receives instruction and direct supervision from employer, regarding details of work

Is free to exercise own judgment concerning the details of work

Training

Is trained by the employer

Does not need training, but rather comes to the job with the requisite skill set

Integration

Performs a function that is part of the employer’s regular business

Performs a function that is separate from the contractor’s regular business

Personal services

Does not have the right to hire or delegate work to others

Has the right to hire and delegate work to others

Payment of helpers

Does not pay for his/her own assistants (if applicable)

Pays for his/her own assistants (if applicable)

Continuing relationship

Performs ongoing work for the employer

Works for a day or for a project, but does not have a regular working relationship with the contractor

Set working hours

Is required to work the times and days specified by the employer

Sets his/her own schedule

Full-time or exclusive work

Works full-time and/or exclusively for the employer

Is free to work for many companies simultaneously

Location of services

Is required to perform the work at the employer’s premises

Is free to work where he/she chooses

Specifying the sequence of work

Is required to follow a specific order or sequence of work

Is free to set own sequence or order of work

Reports

Receive oral or written reports on a regular basis from the employer, concerning job performance

Does not receive regular evaluations from the contractor

Payments

Is paid regularly through employer’s payroll

Is paid upon completion of an assignment, after invoicing

Business/travel expense

Receives reimbursement of expenses through the employer

Pays for own travel costs, licensing fees, continuing education, insurance, etc.

Tools and materials

Is supplied with tools by the employer

Brings his/her own tools to the job

Investment

Receives reimbursement of expense through the employer

Pays for own licensing fees, continuing education, insurance, etc.

Profits/Loss

Does not receive a share of profits and/or losses

May sustain losses as a result of market forces or business downturns; responsible for growing own market presence, brand, etc.

Number of companies

Is dependent on a single company for income

Can choose to work for multiple companies and select amongst competing assignments

Advertisement

Does not advertise to the public

Advertises to the public (e.g., business cards, online profiles, networking)

Termination

Can be terminated “at-will” without further pay

Termination still requires full or partial payment for purchased services.

Quitting

Can quit “at-will” without incurring any liability to employer

Is contractual bound to complete assignment or may be liable to contractor for failure to render services

As you can see, most factors favor your treatment as an independent contractor, a few are ambiguous and only four fall in the “employee” category. Add to this that your agreement with the dental offices states that you are an independent contractor, and this strongly supports a determination that you are in fact one. Now, of course, this can change if you start working repeatedly for the same office, day after day. The details of the relationship continue to matter.

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Where does that leave us?

Classification as an independent contractor is a viable option for hygienists, and can be hugely empowering. You are your own boss. You set your own working hours. You have your own online brand and professional reputation. You set your own pay, and can get paid same day rather than waiting two weeks for payroll to run. You can try out offices before committing. And, you can reduce your chances of any prolonged period of unemployment. Concerned about paying more taxes as an independent contractor? Just boost your usual hourly rate by 10% to more than cover the tax differential vis-à-vis the scenario where you are treated as an employee. Here’s a short guide to paying your taxes as an independent contractor. Done correctly, independent contractor status can be a powerful tool to your career advancement.

So, the next time you hear someone tell you that dental professionals are always employees—or someone else tell you that they are always independent contractors—now you know the full story. Armed with this new knowledge, you can confidently insist on employee classification when required, while also being comfortable as an independent contractor where appropriate.

Ready to take control? 

About the Author: Trey Tepichin is a graduate of Harvard Law School and a former teacher of Economics at Harvard College. Before co-founding CloudDentistry.com, he practiced law for almost a decade, securing numerous multi-million-dollar judgments for his clients.

Disclaimer: Nothing herein should be construed as legal advice. No attorney-client relationship is created through this article. We encourage you to consult an attorney if you have any legal questions.