Suit filed in case of "Girl dead, boy injured at Glacier National Park

[wetb4igetinthewater]

Now, picture the one signboard that advertises:

Why get Certified with our shop? Because we publish the training standards of our instructors, so you know you're getting the best dive training! Ask the shop next door if they will tell you how their instructors were trained. When they refuse to tell you, then come back here to sign up!​

I'm going to use something like that when I open up my dive center. You have earned a free day of boat diving.

If you had a contractor repair your roof, what do you think would be the response if you said he or she could not work for anyone else and could only work on your roof in case you needed it repaired in the future?

Instructors are a dime a dozen. Not many take the opportunity when working at a shop and hone their craft to where the higher level at which they teach causes a problem with shop managers as it makes the other instructors look bad and they get shown the door.

Edit: I hope none of my English teachers ever read the above sentence.

 

[boulderjohn]

However, I think there were enough standards violations here that PADI might be in the clear.

I have certainly not looked into every lawsuit since the infamous Dan Carolock case, which I have heard is famous for poor defense on the part of PADI's lawyers, but it seems to me that after PADI was found liable that time, attorney's try to include them in every suit. If you read over the charges against them, see how many of them would apply to any agency that ever certified an instructor who screwed up. For example, PADI is accused of making it hard to find a list of expelled instructors, a list I found with my first Google hit. Pick another major agency and see how easy it is to find a list of expelled instructors.

It would seem to me that if that becomes the norm (if an instructor does something wrong, the agency, which was not present and had no direct or indirect control over the situation, is automatically included in liability), then that would be the end of agencies. How much can an agency do to control the conditions of your employment, the work you do on a daily basis?

The people who absolutely do control the conditions of your employment are the dive operations themselves. When I first became a professional (DM), the dive shop where I worked fired an instructor right after I was hired. The manager said it was for repeat violations of standards--taking AOW students deeper than 100 feet on the deep dive. We had a dozen instructors in the shop, and if any of them violated any standards, I don't know about it. Our management would not have tolerated it. As you would expect, in this case the dive shop was included in this suit, and it sure looks like they deserved it.

 

[KevinNM]

Both of the dive shops for which I worked used to have everyone as a contractor but changed it to employee, apparently after getting some legal advice about it. Long ago CPA friend of mine said it is federal law, and he directed me to an official government site detailing the differences, which are part of tax law. There was no question whatsoever that we were acting as employee but being treated as contractors.

Yeah, there is a lot of abuse of contractor status to evade employment law and taxes. One basic thing is that contractors set their schedule. So if instructors are supposed to teach to a shop defined schedule and only at the shop it's probably not a contractor relationship. Per the IRS:

Behavioral Control: A worker is an employee when the business has the right to direct and control the work performed by the worker, even if that right is not exercised. Behavioral control categories are:

• Type of instructions given, such as when and where to work, what tools to use or where to purchase supplies and services. Receiving the types of instructions in these examples may indicate a worker is an employee.
• Degree of instruction, more detailed instructions may indicate that the worker is an employee. Less detailed instructions reflects less control, indicating that the worker is more likely an independent contractor.
• Evaluation systems to measure the details of how the work is done points to an employee. Evaluation systems measuring just the end result point to either an independent contractor or an employee.
• Training a worker on how to do the job -- or periodic or on-going training about procedures and methods -- is strong evidence that the worker is an employee. Independent contractors ordinarily use their own methods.

Financial Control: Does the business have a right to direct or control the financial and business aspects of the worker's job? Consider:

• Significant investment in the equipment the worker uses in working for someone else.
• Unreimbursed expenses, independent contractors are more likely to incur unreimbursed expenses than employees.
• Opportunity for profit or loss is often an indicator of an independent contractor.
• Services available to the market. Independent contractors are generally free to seek out business opportunities.
• Method of payment. An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time even when supplemented by a commission. However, independent contractors are most often paid for the job by a flat fee.

Relationship: The type of relationship depends upon how the worker and business perceive their interaction with one another. This includes:

• Written contracts which describe the relationship the parties intend to create. Although a contract stating the worker is an employee or an independent contractor is not sufficient to determine the worker’s status.
• Benefits. Businesses providing employee-type benefits, such as insurance, a pension plan, vacation pay or sick pay have employees. Businesses generally do not grant these benefits to independent contractors.
• The permanency of the relationship is important. An expectation that the relationship will continue indefinitely, rather than for a specific project or period, is generally seen as evidence that the intent was to create an employer-employee relationship.
• Services provided which are a key activity of the business. The extent to which services performed by the worker are seen as a key aspect of the regular business of the company.

 

[boulderjohn]

Instructors are a dime a dozen. Not many take the opportunity when working at a shop and hone their craft to where the higher level at which they teach causes a problem with shop managers as it makes the other instructors look bad and they get shown the door.

Did you get that from me? I have written about that before. I was literally told that instructors are a dime a dozen, and anyone who does not like the way the shop is run can be replaced immediately. (That was NOT in the shop mentioned earlier.)

In my last post I gave an example of an exemplary shop's insistence on quality. There are shops, as you suggest, that do not have that approach. An instructor for such a shop has to decide whether to do as told and violate standards, or insist on following standards and become unemployed.

 

[Esprise Me]

Indeed, it's well established now days that for purposes other than semantics employees and contractors are one in the same. You can't legally screw your workers by labeling them contractors these days. I know for sure that's the deal in FL. I assumed it was a federal thing but I could be wrong.

I'm having trouble parsing what you wrote here. Employees and contractors are very different, not one and the same. It was never legal to screw your employees by labeling them contractors, but it has always been (and remains) common, both to do it and to get away with it. In fairness, many employers are genuinely ignorant of the difference and are not deliberately trying to screw anyone, but that doesn't mean they won't get in a lot of trouble if they get caught.

I took a night diver course in what might possibly have been a legitimate contractor-instructor situation. I don't know if my instructor was even classified by the shop as a contractor vs. an employee; I didn't bother to ask. But it occurred to me as I was reading this discussion that he might have been, and that could have been legal. What I saw on my end was this: a local dive shop advertised several courses on their website, but only had the schedules posted for OW, not for any specialties. So I called the shop and told them what I was interested in, and they took down my info and told me one of their instructors would call me back. Later that day I got a call from an instructor on his personal cell. We discussed what I was looking to get out of the course, and I believe it was he who quoted me the price. He then directed me to his website to pick some dates from what he had available. He also chose the sites at which we would do the course dives, with some input from me. (I was the only student in this class.)

I did go to the shop to pick up the book and DVD, and also some lights. But I had no further interactions with them after that. I met my instructor at the first dive site to review the book work before gearing up. After getting out of our gear following the third and final dive, he gave me the temporary cert card and we finished the paperwork, and then the permanent cert card was mailed to me. I also asked him if he'd allow a friend of mine to join us on the third dive; the friend was an OW diver but had never done night diving before. He agreed, saying he usually charged a fee for that but he'd waive it. (I gave him a tip at the end that was well in excess of the fee he waived, FWIW.) At no point did either of us consult the shop about this special arrangement.

This story features the hallmarks of a legitimate contractor relationship between the instructor and the dive shop. The instructor chose his schedule, his rate of pay, and pretty much all the details of how the job was to be done other than those dictated by PADI or requested by me. The shop seems to have merely facilitated the transaction by vetting him, fielding my call, putting us in touch, and letting me pick up the materials there. Had they instead given me the schedule with dates, locations, and prices, and told him he had to be there, he would have been an employee no matter what they called him.

 

[wetb4igetinthewater]

Did you get that from me? I have written about that before. I was literally told that instructors are a dime a dozen, and anyone who does not like the way the shop is run can be replaced immediately. (That was NOT in the shop mentioned earlier.)

In my last post I gave an example of an exemplary shop's insistence on quality. There are shops, as you suggest, that do not have that approach. An instructor for such a shop has to decide whether to do as told and violate standards, or insist on following standards and become unemployed.

Nope. That was said to an instructor who was fired from a shop chain who then started his own dive school (quite successfully). It is just very commonly used justification for paying instructors poorly. At another shop chain, a diver who did his open water there couldn't get advanced training from them as it wasn't worth their time as compared to open water.

Now there is a shop in my area, Eight Diving (Des Moines), that does an exemplary job of teaching/training and they are highly successful at retaining divers as they teach NB/T, smaller courses (4 max I believe) and provide very nice equipment (dry suits get sold before degrading for example)

Not everyone relies on the profit margins from mask, fins, snorkels, and gloves. A few focus on quality training, building a growing community, and selling quality gear. I believe that is the most sustainable business model.

 

[boulderjohn]

Not everyone relies on the profit margins from mask, fins, snorkels, and gloves. A few focus on quality training, building a growing community, and selling quality gear. I believe that is the most sustainable business model.

That model depends upon location. In my area, dive travel is the major source of income.

 

[wetb4igetinthewater]

That model depends upon location. In my area, dive travel is the major source of income.

Good point. Here we have year round diving.

 

[boulderjohn]

Good point. Here we have year round diving.

...and our midsummer diving is not as good as your midwinter diving. Like much of middle America, we like to brag that we are just a plane flight away from really great scuba.

 

[KevinNM]

For a moment I was confused by how I missed all the great diving in Iowa.