Pennsylvania Employment Classification

[These are articles are for information purposes only and are not intended for legal or tax advice.  They provide general information about 1099 and W-2 Employment classifications as they relate to different states.  While efforts are made to ensure accuracy and completeness, it's critical that anyone seeking advice or up-to-date information on these topics consult their own independent tax or employment lawyer.]

In Pennsylvania, as well as in other states, the criteria used to determine whether a dental hygienist or assistant is an independent contractor (1099) or an employee (W-2) are based on the nature of the worker's relationship with the employer. Some factors that are typically considered when making this determination include:

• Control: Independent contractors typically have more control over their work and how it is performed, while employees are generally subject to the employer's control and instructions. In the case of dental hygienist working a one-day temporary shift, if the employer is dictating the treatment plan, providing materials and equipment and supervising the work, the worker would be considered an employee.

• Autonomy: Independent contractors typically work independently and have more autonomy over their work schedule and work methods, while employees generally have set schedules and work methods established by the employer. In the case of a one-day temporary shift, if the hygienist is able to set their own schedule, choose their own clients and determine their own work methods, the worker would be considered an independent contractor.

• Tools and Equipment: Independent contractors typically use their own tools and equipment, while employees generally use tools and equipment provided by the employer. If the employer is providing the tools and equipment, the hygienist would be considered an employee.

• Training: Independent contractors typically do not receive training from the employer, while employees generally receive training on the job. If the employer is providing training, the hygienist would be considered an employee.

• Length of Relationship: Independent contractors typically have a shorter or more specific length of relationship with the employer, while employees have a more ongoing or permanent relationship with the employer. In the case of a one-day temporary shift, the worker would be considered an independent contractor.

• Economic Dependence: Independent contractors typically are not economically dependent on the employer, while employees are more dependent on the employer for their livelihood. If the hygienist is dependent on the employer for a livelihood, the worker would be considered an employee.

A dental hygienist or assistant might be classified as a 1099 independent contractor when providing temporary work in a dental office if the following circumstances apply:

• The hygienist is working as a self-employed contractor, not an employee. This could include situations where the hygienist is running their own business, setting their own schedule and determining their own methods of work.

• The hygienist is providing services to multiple dental offices on a short-term or temporary basis and not being retained by one specific office.

• The hygienist is responsible for their own taxes, insurance, and other expenses associated with their work and not being paid by the office as an employee

• The hygienist uses their own equipment, materials, and supplies in providing their services and not provided by the office.

If an employee is misclassified as an independent contractor, there can be a variety of negative consequences for both the employee and the employer. In general, the employer bears the risk if the employment is misclassified. Some of the risks that employers may face include:

• Liability for unpaid taxes: If an employee is misclassified as an independent contractor, the employer may be liable for unpaid taxes, including Social Security, Medicare, and unemployment taxes.

• Liability for unpaid benefits: Employers may be liable for benefits such as workers' compensation, unemployment compensation, and vacation pay that should have been provided to the employee but were not.

• Liability for discrimination and other employment law violations: Employers may be liable for discrimination and other employment law violations if the misclassification resulted in the employee not being protected under those laws.

• Liability for overtime and minimum wage violations: Employers may be liable for overtime and minimum wage violations if the employee is entitled to these benefits but did not receive them because of misclassification.

• Liability for penalties and fines: Employers may face penalties and fines for misclassifying employees, particularly if they do so intentionally or repeatedly.

It's worth noting that employees can also face negative consequences if they are misclassified as independent contractors, such as loss of benefits and protections, and lack of legal recourse in case of violations. Misclassification can also have negative impacts on the government, particularly if taxes and benefits aren't being paid as they should be.

If a dental hygienist or assistant is incorrectly classified as a 1099 independent contractor, they may face a number of negative consequences. Some of the risks that the hygienist may face include:

• Loss of benefits: As an independent contractor, the hygienist would not be eligible for benefits such as health insurance, retirement plans, and paid time off, which employees typically receive.

• Lack of job security: Independent contractors do not have the same job security as employees and can be terminated at any time without notice.

• Lack of legal recourse: Independent contractors do not have the same legal protections as employees, and may not be able to take legal action if they experience discrimination, harassment, or other employment-related issues.

• Lack of protection under state and federal laws: Independent contractors are not covered under state and federal laws related to workers' rights, such as the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Occupational Safety and Health Act (OSHA).

• Lack of protection under worker's compensation: Independent contractors are not covered under worker's compensation insurance, if they get injured while working they have to bear the expenses themselves.

• Responsibility for self-employment taxes: As an independent contractor, the hygienist would be responsible for paying their own self-employment taxes, which can be a significant financial burden.

Regardless of how a worker is classified, the worker can still be protected by certain state and federal laws, such as anti-discrimination laws and laws related to safety and health in the workplace. Employers should consult with legal counsel to ensure compliance with all applicable laws.

Side Note:  Occasionally we've heard comments and opinions that, depending on the state, being classified as a 1099 Independent Contractor might put a dental hygienist's license in jeopardy if their state licensure requires their provision of care to be performed under the direction and oversight of a licensed dentist. 

In short, the opinion goes something like this:  "If you are a 1099 Independent Contractor, then you were self-determinant in the provision of your care and not under the direction a dentist.  But your license requires you to provide care only under the direction of a licensed dentist.  So your license is now at risk."   

We at TempStars care very much about patient care, state regulations, doing the right thing and that dental care is only provided under valid circumstances by licensed professionals.  So when we heard this, we made every effort to investigate and dig into the validity of this opinion.   

Despite very extensive research and inquiry with dental professionals and dental hygiene licensing bodies, we found no evidence to support this.  The hygienist licensures indicated their priority concern was whether a licensed dental hygienist was performing their duties according to their state regulations and guidelines. 

But we as a team and organization are dedicated to supporting dental professionals and providing the resources needed for success - so if you or anyone you know has had their dental hygiene license disciplined or suspended solely due to the nature of an employment relationship being misclassified, we would very much like to know. 

Please contact our team at help@tempstars.com and we are offering a reward to any licensed U.S. dental hygienist for the details of their story and situation so that we may help further shine light on this topic and provide the best and most accurate resources and information possible.  Thank you!