Independent contractor agreements for instructors

[Aguablanco1]

While one big worry would be workman's comp, and whether the shop was in fact liable for the employee's/IC's medical bills in the event of an injury, a bigger worry may be the IRS. FICA, Social Security and payroll taxes are not taken lightly by them. I have owned businesses for over 30 years and this is why I have always had employees versus IC's. Best to speak with a lawyer, or at the least, an IRS Enrolled Agent. The EA's are usually CPA's and have the ability to represent you in matters with the IRS. Don't take chances, find out in advance and avoid an ugly mess. Just because you sign a paper saying you are an IC doesn't necessarily make it so.
RichH

 

[Wookie]

I'm going to throw this at you, so when you talk to your lawyer, you can ask him/her about the Jones Act. You say that you will be providing the boat, and subcontracting the crew. You need to be subcontracting the crew from an entity that provides their Jones Act coverage. Jones Act is like workman's comp, but applies to seamen. That includes anyone who staffs your boat in accordance with the CG COI. So, if the COI requires a master and a deckhand, they are Jones Act sailors, regardless of how you pay them. If they are hurt on your boat, you must provide maintenance and cure, and it is incumbent on the boat owner to make them whole. You will pay them at 2/3 of their previous salary, even if they are subs and your season is over (ask me how I know this). You will pay 100% of their medical bills up front. If you have a Jones Act policy, the insurance company will reimburse you when they come back off of disability, or if they never will, will settle with them on your behalf. I have rebuilt a knee and a shoulder of different crew, and the upfront on the shoulder was over $75k. The knee was relatively cheap.

 

[DelrayDM]

I would consider this official..........

The IRS says.....
Independent Contractor (Self-Employed) or Employee?

 

[boulderjohn]

I think this is an issue all over the country, and I believe the law is being violated by many dive operations and shops. I know one specific shop near me that tried a number of different approaches to make their claim that instructors were independent contractors legal, but they finally gave up and made them all employees.

 

[keller34]

I say spend the money, get a lawyer that is well versed in liability and tax law, then have him/her draw up a form. Remember vicarious liability is a B*tch and if you don't protect yourself you will be slammed.

 

[markmud]

Does anyone have experience with signing an independent contractor agreement with a dive center in the USA. I would love to get a sample, please redact any names. Thanks

Hello carltona,

Wow, I have read both threads that you have started and am thinking Deja vu!

I have been acquainted with people who thought they were going to hire employees as independent contractors or have a bullet proof waiver that will protect them from lawsuits. And, it never happens.

First off, IANAL! However, I have hired a few and more importantly, I have hired two really good CPAs in my lifetime who were more important than the lawyers.

Just my opinion (I don't know Florida law):
1) your IC captain better have a Captain's business or a charter boat business with licenses and insurance (that he owns or works for). Also, you had better call the person on short notice--no long range day-to-day scheduling. The IC captains that we hired never performed maintenance or clean-up work--they operated our tugs--and that is all they did. We used them for their skill at maneuvering our barges and for their ability to keep our crews and equipment safe--nothing more.
2) your IC crewmember should be allowed to operate your equipment their way, as long as their way, is safe. Don't dictate standing deck and engineering orders. They must command your vessel as if it were their own! You should mandate that your IC captain have a crew briefing on every trip so that he/she can explain SOP while the vessel is under his/her command.
3) during my years working construction, the laws were very strict about dictating tactics to a subcontractor. We could set the strategy, but the tactics were strictly for the sub to decide. If we interfered with their methods and employee supervision, we became the employer of the sub and their crew. It is a very simple paradigm: the completed work either meets the standard set out in your scoping and strategic planning documents, or it does not. Any other relationship is an employee/employer relationship.

Don't communicate with, and don't become the facilitator between his students and "your" instructor.

Also, I think that you should disclose to your customers, in writing, that their instructor or captain is an IC. Don't advertise that the instructor is one of "your" instructors.

Again, I don't know Florida law and I don't know recent federal case law regarding this issue (IANAL).

Make sure you are not violating the Jones Act in any way.

Question: If you don't have a Captain that is a permanent employee, who is going to maintain your vessel? Boats are not like a Toyota. A skilled Captain who knows his vessel, from stem to stern and keel to masthead, is invaluable.

my 2 cents (and that is all that my opinion is worth on this topic).