Do Scuba Internships Violate Labor Laws?

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Trace Malinowski

Training Agency President
Scuba Instructor
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Because I understand applicant tracking systems which filter resumes, I recently helped my girlfriend's daughter with her resume for summer internships. She's an English major at a private Catholic college and she was seeking a publishing internship.

I also majored in English and graduated from a private Catholic college. Back in my day, no one I knew had an internship. I worked as a ranch hand and a lifeguard during the summers. Several of my college friends were lifeguards too. One of my lacrosse teammates was a white water rafting guide, another was a golf pro, and most of us were employed in recreation in some way. We all had money in our pockets by the end of summer.

I had assumed my girlfriend's daughter would probably get an unpaid internship. Instead, she has been offered two paid internships. One is in New York City in publishing. The other is in the town where she attends college in advertising. I discovered that unpaid internships are beginning to die out. There have been several lawsuits by interns and more and more interns are speaking out claiming that they are really doing a job.

There is a 6 point test established by the Fair Labor Standards Act of 1938 still in use today for hiring unpaid interns:

1. The internship must be similar to training given in an educational environment
2. The internship must be for the benefit of the intern
3. The intern does not displace regular employees
4. The employer derives no immediate advantage from the intern
5. The intern is not entitled to a job at the end of the internship
6. The intern understands that he is not entitled to wages

Most diving internships are paid. Normally, you pay a course fee to learn to be a divemaster or instructor. Then you start out by reading your manual, helping the instructor, watching, listening and learning how to do the job until you take on a leadership role under supervision. Once you've proven to the instructor that you can be fully vetted at the professional level you seek, you get certified.

At PDIC HQ, it took me a year to become a dive supervisor and another year to become an instructor. I can't recall what the dive supervisor course cost, but I remember the instructor course cost $1500. Once I became a certified instructor in 1989, I was paid $10/hr or $400 per 40 hour course.

To compare my internships with the 6 point test of the FLSA of 1938:

1. My instructor internship was very similar to the speech class I was taking in college at the time. Both used video to provide feedback for giving better presentations.
2. I learned from a team of experienced instructors and instructor trainers whose knowledge and experience became invaluable to me in this career.
3. In no way did I replace a regular employee.
4. Other than another "lifeguard" in the water and another pair of hands to do the work, PDIC did not immediately benefit from me.
5. I was not entitled to a job, but I was given one where I was paid immediately afterward and paid a reasonable wage for it.
6. I knew that while interning I wasn't entitled to wages, but the shop would give me a break on gear, free air fills, perks, usually pay for my meals when we went out to eat, and once I got a free trip to the Bahamas.

The diving industry, being behind the times (as usual) is starting to move toward paid and unpaid internships for instructors who are already certified. Most of these are in resort settings advertising for instructors to "gain experience" by teaching diving without pay in order to put real-world experience on their resumes. While the FLSA of 1938 doesn't protect interns outside the USA, of course, I've seen unpaid instructor jobs (and even those where an instructor pays to work) offered in Florida and the Mid-West! Clearly, these internships must violate federal labor laws.

What is the solution to this growing trend? Lawsuits? Unionizing scuba instructors and divemasters? Creating awareness to not patron resorts or shops that take advantage of dive pros? Doing nothing because it is the diving industry and no one cares? Or, am I wrong and such internships are perfectly legal? If so, are they good or bad for the industry?

In 2011, I left PDIC after serving as the technical training director for 4 years and joined PSAI as training director for sport, tech and cave diving in North America. Personally, I "pay" instructor candidates by splitting the course fees if the candidate sets up a class. I also offer instructor "institutes" where the candidate pays and I provide the students. But, I would never think of not paying an instructor to teach a class for which he is already certified.
 
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I like the way you laid it out. Your reasoning looks sound to me. "Unpaid instructor jobs" where they are "teaching diving without pay in order to put real-world experience on their resumes" sound like invitations to lawsuits.
 
I like the way you laid it out. Your reasoning looks sound to me. "Unpaid instructor jobs" where they are "teaching diving without pay in order to put real-world experience on their resumes" sound like invitations to lawsuits.

You're forgetting the main thing required for a true "invitation to lawsuits" >>> a plaintiff with deep pockets to attract an attorney. I don't know a single law firm that would get behind such a suit based on the promise of "taking Cap'n Jack's Fish & Fin Scuba Shack for everything they've got."
 
You're forgetting the main thing required for a true "invitation to lawsuits" >>> a plaintiff with deep pockets to attract an attorney. I don't know a single law firm that would get behind such a suit based on the promise of "taking Cap'n Jack's Fish & Fin Scuba Shack for everything they've got."

Yeah, as a practical matter, you may be right.
 
Supply and demand.

As long as there are enough people who want to get into the activity, there will likely be unpaid internships.

While some scuba internships seem letter-of-the-law illegal as currently practiced, would it continue to be illegal if they called it volunteering instead?
Apparently the entertainment industry has similar circumstances with go-fors working for free in order to make contacts and hopefully get an eventual break.

Heck, I’m an unpaid moderator here on ScubaBoard. Should I sue NetDoc?
 
This is one of the things I am addressing somewhat in my new book. The way wannabe instructors and DM's are used (abused?) in order to cut operating costs.

Part of the zero to hero culture as well. Interns who get to learn the "way a shop operates" by cleaning toilets, mopping floors, soliciting unsuspecting rubes for "Discover Scuba's" at resorts that are not done to standards, etc. Worse yet they are paying for the privilege of doing it.

So called "volunteers" are also part of the problem. They devalue themselves and the entire "profession" by working for free.

Why? In some cases it's because they have bought the lie that it's the way to "living the dream in paradise" while having to tend bar, wait tables, or sell body fluids to have money to eat.
 
They devalue themselves and the entire "profession" by working for free.

Right... they should be "professionals" and charge $99 for OW courses instead of working for free!

Ultimately the buyer - not the seller - sets the market rate for any product or service. Be that "Sure, I'll work for free" or "Sure, I'll take your OW course... if it's only $99."
 
I seem to pretty much agree with everyone here (if that's possible). I don't know the legalities of interning without pay in Can. or the US. Whether I would do it myself or not probably would depend on length of time, and the other factors Trace laid out. If you're a certified "DIVE PRO" and do it for free... well I've ranted enough about that in the past.
 
Here is the first article that I read after finding out that my girlfriend's daughter was getting paid in an industry notorious for unpaid internships. A simple Google search reveals that the landscape in publishing, fashion, film and other industries is going through a transition from unpaid to minimum wage internships. In one case where a judge found in favor of interns who worked for Fox Searchlight on "Black Swan" that they should have been compensated for fetching coffee and taking out the trash (I mean isn't that what interns often do?) one would think that such decisions would set a precedent where any divemaster or scuba instructor in the United States would definitely have a case for doing the job of teaching or leading dives when the industry refers to them as "dive professionals" and they must carry "professional liability insurance?"

Internships: The Beginning of the End of Interns Without Wages | TIME.com

---------- Post added April 16th, 2015 at 09:55 AM ----------

Even the low wage that RJ laid out, charging $99 for an OW class, could be a professional wage. Assuming a low overhead such as confined water instead of renting a pool and charging additionally for the student kit, if you had a full class of 6 students at $99 each then an instructor would make $594 for 30 hours of instruction or $19.80 per hour. An instructor worried about the instructor to student ratio could cycle two teams of three in and out of the water.

I was just offered a job as a whitewater rafting guide. The pay was $60 per day. I said to the owner, "So, that's $7.50 per hour." He asked where I got that figure. I said, "Well, if we assume that a day might be as long as 8 hours, then 60 dollars per hour divided by 8 hours is $7.50 per hour." He never thought of it that way. I declined. I made $7.50 per hour on my first lifeguard job in 1988. What was a Coca-Cola, a cup of coffee, and a gallon of gas in 1988?

Personally, I charge $1000 for a 40 hour open water class. That's $25 an hour for private lessons. That's still cheap compared to the $50 per hour I charged for personal training. I'm patient, nice, have a calming surfer accent, and I teach a full program at a relaxed pace.
 
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Here is the first article that I read after finding out that my girlfriend's daughter was getting paid in an industry notorious for unpaid internships. A simple Google search reveals that the landscape in publishing, fashion, film and other industries is going through a transition from unpaid to minimum wage internships. In one case where a judge found in favor of interns who worked for Fox Searchlight on "Black Swan" that they should have been compensated for fetching coffee and taking out the trash (I mean isn't that what interns often do?) one would think that such decisions would set a precedent where any divemaster or scuba instructor in the United States would definitely have a case for doing the job of teaching or leading dives when the industry refers to them as "dive professionals" and they must carry "professional liability insurance?" . . . .

Okay, but what is your point in all this? As RJP noted, whether a divemaster or instructor "would definitely have a case" is effectively meaningless, since no divemaster or instructor is going to sue a dive shop. There is no money in it for a lawyer to take the case on contingency, as my guess happened in "publishing, fashion, film and other industries." As applied to mom-and-pop businesses, the unpaid intern regulations would seem to have no teeth.
 
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