A question regarding OSHA. Jay Jones the Captain,owns and operates a commercial dive boat in a state that has not been delegated the OSHA program. Capt. Jones has the appropriate license to operate the boat and harvest certain marine organisms. The commercial buyers in the area set his price for these marine organisms. In order to harvest these organisms he makes a deal with four divers. If they go out on his boat he will split the proceeds, 40% for him and 60% to be split among the divers. Capt. Jones pays for all expenses of the boat including food, but not for the dive equipment. The divers supply their own dive equipment, and maintain the dive equipment. He establishes where and when the boat goes out, and where they go to find these organisms, and when they will return. Some divers go out with him regularly, and some only go out once. The divers have no guarantee he will ask them to go with him more than once, and conversely he has no guarantee that the divers will want to go out with him more than once. Capt. Jones does not take any taxes from the 60% share the divers get. And lastly, no one has any health or life insurance coverage. Upon return from a trip, an OSHA inspector checks his boat for compliance with OSHA dive requirements and finds it deficient. He is then issued a citation for violation of 29 CFR Sections 1910.420(a), 1910.430(a)(2) and 1910.430(e)(3). Capt. Jones goes to you for advice claiming that only the Coast Guard can inspect his boat, and secondly, the divers are independent contractors. What advice do you give him, and why?
This tricky to determine worker vs. independent contractor. as by the Darden test, it looks like some attributes are employer’s and some is not offered by employers, such as Tax, insurance benefit. Also the divers provide their own tools. I have hard time to determining these issues. Also, do we consider this as uninspected commercial fishing industry vessel.