Editor's Note: As you begin to staff your wellness center, an essential part of building your integrated health team will be the fitness trainer. Understanding employment issues regarding personal trainers, such as independent contracting and liability, can educate not only yourself, but also your potential employees on the legal options that both of you have.
Certifications provide candidates with an entry-level competency to provide exercise programs for healthy individuals. Once certified, new trainers are usually not only unsure of their career paths, but are left in the dark regarding the legalities of personal training practices. Fitness professionals quickly find out they need more than passion and desire they need legal protection.
Employee versus Independent Contractor
Once the fitness trainer has earned a certification, the first major decision will likely be whether to work as an employee of a wellness center or health club or as an independent contractor. Each classification has advantages and disadvantages, and the right choice is really a matter of personal preference. For example, independent contractors typically enjoy the perks of making their own hours, choosing their own clients, charging their own rates, training at multiple sites and designing their own training programs. On the other hand, laws addressing employment discrimination, workers' compensation and overtime pay do not apply to independent contractors. This decision, whether opting to be an employee or independent contractor, will also affect the professional's tax payment structure. Employee paychecks are reduced by withholdings for income tax, social security tax and Medicare tax, while independent contractors are only responsible for submitting quarterly tax payments to the IRS. Another important consideration is the cost of insurance. Employees are typically covered by their employer's liability insurance and offered a group rate on their health insurance. In contrast, independent contractors are on their own to cover the costs of both liability and health insurance.
Contracts with Fitness Facilities
As an independent contractor, trainers should sign a contract with their clients' fitness facilities. This type of contract will grant the right to train clients at the center, establish the compensation agreement between the trainer and the fitness facility (i.e., per session, per month, per year, etc.) and explicitly state the trainer's status as an independent contractor.
Service Contracts with Clients
It may be tempting to establish a client relationship with a handshake and goodwill, but a written agreement is in the best interest of both the fitness professional and the client. A typical agreement might include the term of the contract, the scope of the training, the compensation structure (i.e., per session, lump sum for a package, etc.) and the cancellation policy as well as the termination policy. Because contract law varies from state to state, it is imperative to ask a local attorney to review or prepare all the contractual forms before presenting them to a client.
Waiver of Liability
Recently, there have been an increasing number of lawsuits that are being filed against personal trainers. The best way to avoid such a lawsuit is by asking each client to sign a waiver of liability. In most states, a properly drafted waiver will prohibit a client from suing for negligence. Although waiver law also varies from state to state, courts seem more likely to uphold the validity of a waiver if the following is applied:
1. The waiver is a separate document from the contract for personal training services.
2. The waiver document has a clear title such as "Waiver of Liability," "Release of Liability" or "Indemnity Agreement."
3. The print of the waiver is clear and conspicuous. Courts may not look favorably on waivers that seem to be hiding important language.
4. The language and meaning of the waiver is clear enough to be readily understood by an average person.
5. The signature line is located near to the clear language that indemnifies the trainer from negligence. The close proximity of the signature line to the indemnity clause may decrease the credibility of a claim asserting that the client was not aware of the purpose of the document.
6. The waiver informs the client of the risks that are inherent in working with a personal trainer. This section should include a list of common injuries (using language like, "common injuries include, but are not limited to...") as well as a list of more serious harm that may occur, including death. This section of the waiver is particularly important because it can protect the professional from claims asserting that the client was not aware of the risks he or she was taking by participating in a personal training session.
Because the waiver is a legal document, it is imperative to ask a local attorney to prepare or review the waiver before presenting it to a client.
Health History Form
Asking a client to fill out a health history form can help identify the client's risk factors. An awareness of the client's risk factors will help in designing an appropriate training regimen. Based on a client's response to the health history form, it may be necessary to ask the client for a note from his or her physician regarding any restrictions on physical activity. The health history form is commonly referred to as the PAR-Q (Physical Activity Readiness Questionnaire). A sample of this form may be found at www.csep.ca/pdfs/par-q.pdf.
Liability Insurance
If training clients as an employee of a fitness facility, the training sessions are likely to be insured under the center's liability insurance. However, if training as an independent contractor, the responsibility for purchasing insurance will be the trainer's (cost typically ranges between $200-$500/year professional associations may offer discounted pricing). Some questions to ask an insurance agent before purchasing an insurance policy include:
1. Does the policy cover both actions and omissions? Some policies only cover the actions of a trainer, but don't apply to claims asserting that a trainer failed to act in some manner.
2. Does the policy cover the full scope of services that are intended to be provided?
3. Does the policy cover legal fees and awards for damages?
4. Does the policy cover claims that don't involve physical injury, such as claims for mental stress?
5. What time frame is covered by the policy? For example, whether the policy covers claims for all matters that occurred while insured, even when the claim isn't filed until after the coverage expires.
6. What types of claims are not covered by the policy?
It's also important to ensure that the purchase of insurance is from a reputable company. The characteristics of a reputable company include national affiliation, licensure and strong financial backing.
The information in this article is intended for general education. It is not legal advice, nor should it be considered as such. Individuals needing legal advice should consult an attorney who is competent in this area.
Thomas Richards is the public policy manager for the International Health, Racquet & Sportsclub Association. For more information, email him at tgr@ihrsa.org.
