More Dental Workers Likely to Be Considered Employees Not Independent Contractors Under Proposed Department of Labor Rule
Jordan Uditsky • November 21, 2022
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 the Internal Revenue Service (IRS). And under a proposed rule recently issued by the DOL, more dental workers are likely to be considered employees instead of contractors, no matter what label a practice owner uses for them.
Published on October 13, 2022, the proposed rule would revise the DOL’s analysis for determining employee or independent contractor classification under the Fair Labor Standards Act (FLSA). Specifically, the DOL is proposing to rescind 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, which is still controlling until the new proposed rule becomes final, two of the five factors— “the nature and degree of control over the work and the worker's opportunity for profit or lost” were designated as “core factors” that were to carry more weight in the analysis.
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 proposed rule, the “core factors” mentioned above would no longer be 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 proposed 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:
- “Opportunity for profit or loss depending on managerial skill”
- “Investments by the worker and the employer”
- “Degree of permanence of the work relationship”
- “Nature and degree of control,” including “whether the employer uses technological means of supervision (such as by means of a device or electronically), reserves the right to supervise or discipline workers, or places demands on workers’ time that do not allow them to work for others or work when they choose”
- The “extent to which the work performed is an integral part of the employer’s business”; and
- The “skill and initiative” of the worker, meaning whether a worker uses specialized skills brought to the job or is “dependent on training from the employer to perform the work.”
Illinois Law Makes It Even More Likely That a Worker Will Be Considered an Employee
Making matters even more complicated for Illinois dental practice owners, state law establishes its own criteria for determining a worker’s status and presumes that a worker is an employee unless and until it's proven in any proceeding that:
- Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and
- Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
- Such individual is engaged in an independently established trade, occupation, profession, or business.
It remains to be seen whether the final rule ultimately promulgated by the DOL will be the same or substantially similar to the proposed rule. Regardless, practice owners need to understand that just calling someone an independent contractor does not make them one. Given how much employee misclassification hurts workers who inappropriately wind up treated as contractors (and how much tax revenue is lost when businesses wrongfully classify workers), it’s no surprise that the federal government and individual states are cracking down on the practice. When they do so, they crack down hard. The financial cost 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.
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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.
In a previous post , we discussed the pros and cons and ins and outs of selling a dental practice to a dental services organization (DSO). The DSO model continues to be attractive and popular. According to Grand View Research , the U.S. DSO market size was estimated at $26.9 billion in 2023 and is projected to grow at an annual rate of 16.4% from 2024 to 2030. Despite the exponential growth of DSOs, and the large amounts of private equity that fuel that expansion, they are still a relatively recent development in the dental industry. As such, the DSO model is still evolving and being refined in response to market conditions and demands. That evolution includes a new form of DSO – the “Invisible DSO” (IDSO) – designed to provide financial and operational support to private dental practices without the significant loss of autonomy and leadership that makes many owners wary of joining a traditional DSO. What Makes an IDSO “Invisible”? Unlike traditional DSOs that often impose centralized control over management and branding, IDSOs operate discreetly - almost “invisibly” - in the background. IDSOs allow dentists to keep their brand identity and operational independence without having to rebrand under a corporate umbrella. As important, dentists in an IDSO can still make clinical decisions without external interference – for the most part. Key Features of an IDSO That retention of leadership and control comes with many of the benefits of group affiliation within a traditional DSO, including: Equity Partnership Model. Dentists sell a portion of their practice (typically 51% to 80%) to the IDSO in exchange for a combination of cash and equity in the more extensive dental group. This allows dentists to "de-risk" their financial position while still maintaining ownership and influence over the practice. Operational and Administrative Support. As with traditional DSOs, IDSOs provide back-office support, including billing, human resources, marketing, compliance, and IT. This helps streamline operations without the dentist having to give up control over daily clinical decisions. Access to Growth Capital. As noted, private equity is the backbone of the DSO industry, including IDSOs. This readily available cash facilitates the ability of individual practices to expand, recruit more staff, and update technology, equipment, and infrastructure. Group Negotiation Power. By being part of a more extensive network, practices gain better negotiated rates on supplies, lab costs, and insurance reimbursements (which can be as much as 20% higher than independent practices). This reduces overhead and increases profit margins. Financial Security and Liquidity. Selling a portion of the practice to an IDSO provides dentists with an immediate financial payout. This can be a useful strategy for retirement planning or reducing financial risk while still retaining practice ownership. Additionally, the private equity behind DSOs may provide dentists with an opportunity to benefit from a future liquidity event, such as a sale to a larger investment group. Reduced Administrative Burden. One of the most appealing aspects of an IDSO is the ability to unburden themselves of many administrative functions, freeing dentists to focus on patient care and facilitating lower stress and higher job satisfaction. Stronger Competitive Positioning. Solo dental practices face growing competition from corporate dental chains. IDSOs provide the resources needed to compete effectively while maintaining independence. Potential Downsides of Joining an IDSO While an IDSO can be a more attractive option than its traditional counterpart, it is not without potential downsides. These include: Invisibility Isn’t Absolute. The key distinguishing feature of an IDSO, as noted, is the ability of the practice owner to retain control of their practice, clinical decisions, and brand. However, that autonomy, while significant, is not limitless. Even if the dentist holds on to a great deal of decision-making power, the IDSO may influence staffing, marketing, financial decisions, and even treatment protocols. This can lead to conflicts between corporate interests and clinical judgment, potentially pressuring practitioners to prioritize profitability over patient care. Revenue Sharing. Since the IDSO takes a significant equity stake in the practice, profits must be shared. Accordingly, dentists might earn less per year compared to full ownership. Long-term Commitments. Most IDSOs require a long-term commitment, often 5–10 years. Dentists looking for total independence in the short term may find these agreements restrictive. 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If you are a dental professional considering a sale 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.
Many dentists and dental practices offer financing arrangements as a way to help patients, especially the uninsured, pay for their care and treatment. For those who utilize third-party vendors for such financing, recently enacted amendments to the Illinois Dental Practice Act impose new disclosure and transparency obligations on dentists and practices and place limits on what staff can do and say in their interactions with patients regarding the subject. The amendments became effective January 1, 2025. With other states enacting or considering similar legislation regarding external patient financing for health care providers, these changes serve as a reminder to dentists in every jurisdiction about the importance of staying up to date on changes in their state’s laws and regulations. Here is what you need to know and do about these changes in order to ensure compliance once the calendar turns to the new year. 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Anyone associated with a practice cannot do any of the following: Complete any portion of an application for financing extended by a third party for a patient or patient's guardian. Provide the patient or patient's guardian with an electronic device to apply for financing extended by a third party. Promote, advertise, or provide marketing or application materials for financing extended by a third party to a patient who has been administered or is under the influence of general anesthesia, conscious sedation, moderate sedation, or nitrous oxide; is being administered treatment; or is in a treatment area, including, but not limited to, an exam room, surgical room, or other area when medical treatment is administered, unless an area separated from the treatment area does not exist. Mandatory Disclosure When discussing or providing applications for financing extended by a third party, a dentist, employee of a dentist, or agent of a dentist must provide the following written notice in at least 14-point font: DENTAL SERVICES THIRD-PARTY FINANCING DISCLOSURE This is an application for a CREDIT CARD, LINE OF CREDIT, OR LOAN to help you finance or pay for your dental treatment. This credit card, line of credit, or loan IS NOT A PAYMENT PLAN WITH THE DENTIST'S OFFICE. It is a credit card, line of credit, or loan from a third-party financing company. Your dentist does not work for this company. Your dentist may not complete or submit an application for third-party financing on your behalf. You do not have to apply for a credit card, line of credit, or loan. You may pay your dentist for treatment in another manner. Your dentist's office may offer its own payment plan. You are encouraged to explore any public or private insurance options that may cover your dental treatment. The lender or creditor may offer a "promotional period" to pay back the credit or loan without interest. After any promotional period ends, you may be charged interest on portions of the balance that have already been paid. If you miss a payment or do not pay on time, you may have to pay a penalty and a higher interest rate. If you do not pay the money that you owe the creditor or lender, then your missed payments can appear on your credit report and could hurt your credit score. You could also be sued by the creditor or lender. If your dentist's office has completed or submitted an application for third-party financing on your behalf, you may file a complaint by contacting the Illinois Department of Financial and Professional Regulation at https://idfpr.illinois.gov/admin/dpr/dprcomplaint.html or by calling (312) 814-6910." Penalties for Non-Compliance A violation of these new rules and limitations is punishable by a fine of up to $500 for the first violation and a fine of up to $1,000 for each subsequent violation. IDFPR has the power to take additional disciplinary action as well. If you have any questions about these new requirements or third-party financing for dental services generally, please contact Jordan Uditsky at Grogan Hesse & Uditsky. We Focus on You So You Can Focus on Your Patients 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. 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.
In a previous post , we discussed the pros and cons and ins and outs of selling a dental practice to a dental services organization (DSO). The DSO model continues to be attractive and popular. According to Grand View Research , the U.S. DSO market size was estimated at $26.9 billion in 2023 and is projected to grow at an annual rate of 16.4% from 2024 to 2030. Despite the exponential growth of DSOs, and the large amounts of private equity that fuel that expansion, they are still a relatively recent development in the dental industry. As such, the DSO model is still evolving and being refined in response to market conditions and demands. That evolution includes a new form of DSO – the “Invisible DSO” (IDSO) – designed to provide financial and operational support to private dental practices without the significant loss of autonomy and leadership that makes many owners wary of joining a traditional DSO. What Makes an IDSO “Invisible”? Unlike traditional DSOs that often impose centralized control over management and branding, IDSOs operate discreetly - almost “invisibly” - in the background. IDSOs allow dentists to keep their brand identity and operational independence without having to rebrand under a corporate umbrella. As important, dentists in an IDSO can still make clinical decisions without external interference – for the most part. Key Features of an IDSO That retention of leadership and control comes with many of the benefits of group affiliation within a traditional DSO, including: Equity Partnership Model. Dentists sell a portion of their practice (typically 51% to 80%) to the IDSO in exchange for a combination of cash and equity in the more extensive dental group. This allows dentists to "de-risk" their financial position while still maintaining ownership and influence over the practice. Operational and Administrative Support. As with traditional DSOs, IDSOs provide back-office support, including billing, human resources, marketing, compliance, and IT. This helps streamline operations without the dentist having to give up control over daily clinical decisions. Access to Growth Capital. As noted, private equity is the backbone of the DSO industry, including IDSOs. This readily available cash facilitates the ability of individual practices to expand, recruit more staff, and update technology, equipment, and infrastructure. Group Negotiation Power. By being part of a more extensive network, practices gain better negotiated rates on supplies, lab costs, and insurance reimbursements (which can be as much as 20% higher than independent practices). This reduces overhead and increases profit margins. Financial Security and Liquidity. Selling a portion of the practice to an IDSO provides dentists with an immediate financial payout. This can be a useful strategy for retirement planning or reducing financial risk while still retaining practice ownership. Additionally, the private equity behind DSOs may provide dentists with an opportunity to benefit from a future liquidity event, such as a sale to a larger investment group. Reduced Administrative Burden. One of the most appealing aspects of an IDSO is the ability to unburden themselves of many administrative functions, freeing dentists to focus on patient care and facilitating lower stress and higher job satisfaction. Stronger Competitive Positioning. Solo dental practices face growing competition from corporate dental chains. IDSOs provide the resources needed to compete effectively while maintaining independence. Potential Downsides of Joining an IDSO While an IDSO can be a more attractive option than its traditional counterpart, it is not without potential downsides. These include: Invisibility Isn’t Absolute. The key distinguishing feature of an IDSO, as noted, is the ability of the practice owner to retain control of their practice, clinical decisions, and brand. However, that autonomy, while significant, is not limitless. Even if the dentist holds on to a great deal of decision-making power, the IDSO may influence staffing, marketing, financial decisions, and even treatment protocols. This can lead to conflicts between corporate interests and clinical judgment, potentially pressuring practitioners to prioritize profitability over patient care. Revenue Sharing. Since the IDSO takes a significant equity stake in the practice, profits must be shared. Accordingly, dentists might earn less per year compared to full ownership. Long-term Commitments. Most IDSOs require a long-term commitment, often 5–10 years. Dentists looking for total independence in the short term may find these agreements restrictive. Potential for Future Policy and Ownership Changes Although IDSOs promise, and usually deliver, autonomy, private equity-backed groups may eventually adjust policies or introduce new financial structures that affect dentists’ control. If a larger organization acquires the IDSO, there could be unexpected changes in how the practice is managed. An IDSO can change hands multiple times, and a practice owner could be stuck with the company even if their relationship with the organization otherwise goes south. Before joining an IDSO, it's essential to carefully review the terms, understand the long-term implications, and ensure that the partnership aligns with your personal and professional goals and your practice’s culture and outlook. Consulting with an experienced dental industry attorney can help you navigate the complexities of the decision. If you are a dental professional considering a sale 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.
Many dentists and dental practices offer financing arrangements as a way to help patients, especially the uninsured, pay for their care and treatment. For those who utilize third-party vendors for such financing, recently enacted amendments to the Illinois Dental Practice Act impose new disclosure and transparency obligations on dentists and practices and place limits on what staff can do and say in their interactions with patients regarding the subject. The amendments became effective January 1, 2025. With other states enacting or considering similar legislation regarding external patient financing for health care providers, these changes serve as a reminder to dentists in every jurisdiction about the importance of staying up to date on changes in their state’s laws and regulations. Here is what you need to know and do about these changes in order to ensure compliance once the calendar turns to the new year. No Establishing, Promoting, or Assisting With Third Party Financing A dentist, employee of a dentist, or agent of a dentist may not “arrange for, broker, or establish financing extended by a third party for a patient.” That term encompasses and prohibits submitting an application to a third-party creditor, lender, or creditor's intermediary for approval or rejection on behalf of a patient. It also prohibits dental practices from providing patients with software, links, or QR codes that have been customized with the practice’s branding. Practices can, however, provide patients with a third party’s marketing and advertising materials so long as they are not customized to the practice. Beyond providing or displaying generalized third-party advertising materials, dentists and staff cannot do much more in terms of helping a patient apply for or obtain financing. Anyone associated with a practice cannot do any of the following: Complete any portion of an application for financing extended by a third party for a patient or patient's guardian. Provide the patient or patient's guardian with an electronic device to apply for financing extended by a third party. Promote, advertise, or provide marketing or application materials for financing extended by a third party to a patient who has been administered or is under the influence of general anesthesia, conscious sedation, moderate sedation, or nitrous oxide; is being administered treatment; or is in a treatment area, including, but not limited to, an exam room, surgical room, or other area when medical treatment is administered, unless an area separated from the treatment area does not exist. Mandatory Disclosure When discussing or providing applications for financing extended by a third party, a dentist, employee of a dentist, or agent of a dentist must provide the following written notice in at least 14-point font: DENTAL SERVICES THIRD-PARTY FINANCING DISCLOSURE This is an application for a CREDIT CARD, LINE OF CREDIT, OR LOAN to help you finance or pay for your dental treatment. This credit card, line of credit, or loan IS NOT A PAYMENT PLAN WITH THE DENTIST'S OFFICE. It is a credit card, line of credit, or loan from a third-party financing company. Your dentist does not work for this company. Your dentist may not complete or submit an application for third-party financing on your behalf. You do not have to apply for a credit card, line of credit, or loan. You may pay your dentist for treatment in another manner. Your dentist's office may offer its own payment plan. You are encouraged to explore any public or private insurance options that may cover your dental treatment. The lender or creditor may offer a "promotional period" to pay back the credit or loan without interest. After any promotional period ends, you may be charged interest on portions of the balance that have already been paid. If you miss a payment or do not pay on time, you may have to pay a penalty and a higher interest rate. If you do not pay the money that you owe the creditor or lender, then your missed payments can appear on your credit report and could hurt your credit score. You could also be sued by the creditor or lender. If your dentist's office has completed or submitted an application for third-party financing on your behalf, you may file a complaint by contacting the Illinois Department of Financial and Professional Regulation at https://idfpr.illinois.gov/admin/dpr/dprcomplaint.html or by calling (312) 814-6910." Penalties for Non-Compliance A violation of these new rules and limitations is punishable by a fine of up to $500 for the first violation and a fine of up to $1,000 for each subsequent violation. IDFPR has the power to take additional disciplinary action as well. If you have any questions about these new requirements or third-party financing for dental services generally, please contact Jordan Uditsky at Grogan Hesse & Uditsky. We Focus on You So You Can Focus on Your Patients 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. This blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.
