You are presumably not a shop employee, but rather a contractor. If a contractor, do you have a written agreement? Their business needs and practices do not override your rights.
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No, neither W-2 nor 1099 but tips only. I never get paid by the shop. I volunteer to assist the shop's instructors, and the shop makes sure the instructors only ask shop-approved DMs. That means DMs having shop insurance. I could choose to go with another shop or independent, but I wouldn't be asked to DM for that shop. I don't feel like any of my rights are being violated or that the shop is wrong. I like the shop and prefer to help them with their classes.
I want to say up front that this post is designed to demonstrate the uncertainty I feel about all of this.
I think the basic idea of having people "volunteer" to work without pay for a profit-making organization is an interesting one in terms of legality. It happens a lot in a number of businesses, and not being an attorney, I don't know how it works legally. For example, the Denver aquarium is a privately owned business earning a profit, but many of the people who work there and help generate those profits are unpaid volunteers. In political campaigns, unpaid volunteers work side-by-side with paid staff. ScubaBoard is a privately owned, profit making business, but the overwhelming majority of the people who work for it and help it generate those profits (including me) are unpaid volunteers. That suggests that there is something normal and legal about it.
On the other hand....
We recently had a thread about the common statement by boat captains at the end of a dive in Florida that the DMs "work for tips, so be sure to remember them." The question in the thread was whether or not that is legal. A knowledgeable person responded that no, it is not legal, and those DMs have a specific legal status with a specific minimum wage along the lines of waitpersons in restaurants. I noticed soon after that thread that the boat captains started saying something along the lines of "the DMs work primarily for tips" or "tips are a major part of the DM's pay."
I wanted to address this separately.
When it comes to whether you are an employee or contract worker for a dive shop involves a major gray area. The IRS has guidelines for determining which is which--you cannot just declare one or the other on your own. Many years ago I was working for a shop for which I was a contract worker. I was talking about it with a friend who is a CPA. He told me that no, with the working conditions I described, I had to be an employee under IRS rules. The shop, he explained, was calling us contractors because it was very much in their favor financially to do so. I am no longer with that shop, but I learned that they finally did the right thing and now make everyone an employee.
I then worked for another shop where I was recognized as an employee, and the problems with that became evident there. When you are an employee, the shop determines when you work. It therefore determines how many hours you work. We were not, however, paid by the hour--we were paid by the number of students we served. Teach a weekend OW class with pool sessions and classroom sessions for 8 students at $30 per student, and you made $15 per hour--not that bad. Teach a specialty class for 2 students over the weekend at $25 per student, driving to the OW site, conducting the dives, packing up, etc., and you might get $5-6 per hour. There were times I got less than $2 per hour.
The problem is that all employees must make minimum wage, and if their regular wages plus tips (as in waitpersons and those DMs on the boat) do not get them up to minimum wage, then management is supposed to add the necessary money to get them there. The fact that I frequently did not make minimum wage because I was their advanced diving instructor and taught low enrollment classes was a sore spot that is one of the reasons I no longer work for them.
Summary: Both shops for which I worked were doing things illegally under IRS rules, and they are able to do so because no one reports tham--including me.
When it comes to whether you are an employee or contract worker for a dive shop involves a major gray area. The IRS has guidelines for determining which is which--you cannot just declare one or the other on your own. Many years ago I was working for a shop for which I was a contract worker. I was talking about it with a friend who is a CPA. He told me that no, with the working conditions I described, I had to be an employee under IRS rules. The shop, he explained, was calling us contractors because it was very much in their favor financially to do so. I am no longer with that shop, but I learned that they finally did the right thing and now make everyone an employee.
I then worked for another shop where I was recognized as an employee, and the problems with that became evident there. When you are an employee, the shop determines when you work. It therefore determines how many hours you work. We were not, however, paid by the hour--we were paid by the number of students we served. Teach a weekend OW class with pool sessions and classroom sessions for 8 students at $30 per student, and you made $15 per hour--not that bad. Teach a specialty class for 2 students over the weekend at $25 per student, driving to the OW site, conducting the dives, packing up, etc., and you might get $5-6 per hour. There were times I got less than $2 per hour.
The problem is that all employees must make minimum wage, and if their regular wages plus tips (as in waitpersons and those DMs on the boat) do not get them up to minimum wage, then management is supposed to add the necessary money to get them there. The fact that I frequently did not make minimum wage because I was their advanced diving instructor and taught low enrollment classes was a sore spot that is one of the reasons I no longer work for them.
Summary: Both shops for which I worked were doing things illegally under IRS rules, and they are able to do so because no one reports tham--including me.
Wookie
Proud to be a Chaos Muppet
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Sounds like ScubaLand.
Wookie
Proud to be a Chaos Muppet
Staff member
ScubaBoard Business Sponsor
ScubaBoard Supporter
Scuba Instructor
I consider Rob a friend, but if I had to work there, I'd have crossed over to SSI....Ding ding
KevinNM
Contributor
So, if you get hurt doing this and can’t work for a month and get $57,000 in hospital bills and a $35,00 helicopter ride, what happens?
Wookie
Proud to be a Chaos Muppet
Staff member
ScubaBoard Business Sponsor
ScubaBoard Supporter
Scuba Instructor
That's a really good FT job, if they ignore your hobby disability when you can't work for a month. Very understanding. I don't think you should test it, however.
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