August 16, 2017

August 16, 2017

Subscribe to Latest Legal News and Analysis

August 15, 2017

Subscribe to Latest Legal News and Analysis

August 14, 2017

Subscribe to Latest Legal News and Analysis

Personal Training: Historically Unregulated Occupation with Change on Horizon

From time-to-time we receive inquiries from both gym owners and individuals as to whether or not there are any laws that govern who can market themselves as a “personal trainer.”  The short answer is that, to our knowledge, there are not currently any state or federal laws preventing a person from declaring themselves to be a personal trainer. However, as this article will explain, states and local jurisdictions are beginning to examine the adoption of certain statutes and regulations that would bring standards to an industry that has historically been run by private corporations that sell their own individual brand of certification.   

Certification ≠ Legal Requirement

These days it is fairly typical for a personal trainer to let their clients know that they have their “personal training certification” without giving any additional detail.  For clarity, a personal training certification is not a legal requirement.  A certification is merely a certificate from a private, usually for-profit, company that an individual has passed whatever requirements that private company deems important before advertising or marketing themselves out as a personal trainer. 

For the less credible certification companies, often the goal is to process as many people as possible through their certification program in exchange for the fees paid by the now “certified” personal trainer.  Obviously, given the risk to the consumer (i.e. people with no real knowledge becoming personal trainers in a few days upon paying a fee to a private certification company), state legislatures are becomingly increasingly active in requiring these certification companies and/or the personal trainers themselves to meet certain standards.

As a point of clarification, many of the national certification companies do a fine job testing their students’ knowledge related to personal training and fail applicants that do not pass their personal training tests or have the necessary prerequisites.  Some of the certification companies, such as the National Strength and Conditioning Association (“NSCA”) or the National Academy of Sports Medicine (“NASM”), apply to be accredited by an entirely separate accreditation body called the Institute for Credentialing Excellence (“ICE”).  ICE credentials sixteen different organizations under their Fitness and Wellness classification. The level of experience and knowledge for the certifications range from the American Fitness Professionals Associates (which, to our knowledge, has no prerequisites), to NSCA’s higher level Certified Strength and Conditioning Specialist which requires a four-year degree in a related field.  The full list of certifications accredited by ICE can be found here.

The Anticipated State Regulation of Personal Training Certifications

As mentioned in the introduction to this article, there are currently no state or federal law requirements that we are aware of with respect to the standards of certification regarding personal trainers or group fitness instructors.  This is very surprising since some of the more highly regulated states (hello California!) have traditionally required occupational licenses for anything from being a fortune teller to a stylist. 

There is a clear trend evolving nationwide in regards to occupational licensure, which, in this author’s opinion, should not change even under deregulation-focused Trump administration.  While this additional state regulation should increase safety standards (as well as state revenue), it has also put a burden on persons and companies operating in these regulated industries.  Personal trainers appear to be next on the list of possible targets for new licensure/regulations.  A few states and the District of Columbia (“Washington D.C.”) have proposed licensure requirements for personal trainers.

Washington D.C. has come closest to passing legislation that would force personal trainers to register with the District rather than such person merely holding a personal training certification from a private company. The Washington D.C. bill banned the use of the title “fitness instructor” along with “personal trainer” without a proper license.  This would have required group fitness instructors (not just personal trainers) to obtain a license with the District.  However, while in committee, the legislature stripped the personal training occupational license requirement from the main bill.  One of the major points of contention in the licensure debate revolved around certification and what certifications would be deemed permissible under the bill. 

In Florida, the current proposed bill goes so far as to classify any use of “the title ‘personal trainer’ without being licensed” as a first degree misdemeanor which could carry up to a one year imprisonment term.  In addition, New Jersey, Massachusetts, California and Georgia have also introduced occupational licensure proposals that are very similar to Washington D.C.’s and Florida’s.

These legislative efforts seem to be driven by two major forces: lobbyists and the Affordable Care Act, the second of which may be less of an issue under the new Trump administration.  A consortium of sports medicine organizations have come together and created the Coalition for Registration of Exercise Professionals (“CREP”), whose mission is “to secure recognition of registered exercise professionals for their distinct roles in medical, health, fitness and sports performance fields.” CREP keeps an online registration for exercise professionals. CREP has historically pushed for the licensure of personal trainers using consumer protection as its springboard.  

The Affordable Care Act calls for wellness programs in the workplace and other preventive measure incentives to be covered when conducted by credentialed professionals.  Some experts in the fitness industry believe this may lead to an increased push for personal trainers’ time to be covered by insurance companies, much in the same way physical therapy is currently covered.  Additional regulation would absolutely be necessary at the federal and/or state level in order to set minimum standards on what it means to be a “personal trainer.”  Without standards set by the legislature, the barriers to being a personal trainer would remain too low and insurance fraud would be expected to run rampant. 

Club Fitness Facility and Gym Requirements 

Despite the current non-existence of state or federal laws governing who is and is not a personal trainer, club fitness facilities and gyms generally maintain their own specific hiring requirements for new personal trainers.  At a minimum, large national chains will generally require at least one nationally recognized fitness certification (NASM, NSCA, etc.).  In addition, a potential new hire will also likely need to meet internal, gym-specific qualifications such as prior work experience.  Unfortunately, however, many times these additional gym-specific qualifications are based merely on the number of hours the trainer has worked at previous gyms and not based on any written or hands-on test.  Some fitness facilities also fail to maintain a system that ensures its personal trainers keep their certifications up-to-date in addition to generally improving his or her skills. With the rapidly expanding knowledge of human physiology and exercise science, it is important that personal trainers stay informed of new developments. 

We regularly advise club fitness facilities and gyms to hire a personal training manager or otherwise designate a lead personal trainer that, among other activities, ensures all personal trainers’ certifications are up-to-date.  The personal training manager or lead should also proactively address any potential issues that he or she becomes aware of with respect to a specific personal trainer.  Failure to take corrective action, including, but not limited to termination, may lead to extensive liability that may or may not be covered by insurance if the personal trainer that was previously complained about later injures the same or a different gym member.

Conclusion 

It seems clear that state regulation for the personal training industry is on the near-term horizon.  For fitness professionals, this may be seen as an alarming trend, or it may be a great new opportunity to specialize and rid the market of personal trainers that are not properly trained and vetted.    

Each state will ultimately choose how it defines “personal trainer” and the minimum standards necessary to be licensed as such in that particular state.  If states are successful in passing proposed legislation, all health club facilities and studios will need to immediately implement processes to ensure their personal trainers maintain the necessary state certifications as set forth in the new regulations.  I would expect that the penalties for non-compliance by an individual trainer would create liability for the employer, especially if the personal trainer is an employee and not an independent contractor.  It is difficult to guess the scope and potential liability of personal training laws until the statues are passed, but I would expect each infraction to carry thousands of dollars in penalties.  In a situation where a gym has several personal trainers in non-compliance with the new statutes, the penalty could easily be in the tens if not hundreds of thousands of dollars, in addition to other penalties such as forfeiture of a business license. 

Michael Foland assisted with the state research on proposed personal training certifications.

© Health and Fitness Law Blog 2016. All Rights Reserved.

TRENDING LEGAL ANALYSIS


About this Author

Aaron D. Werner, Horwood Marcus, Structuring Equity Lawyer, Acquisition Attorney
Partner

AARON D. WERNER is a partner in the firm's Business & Finance Group. He serves as outside general counsel and advisor to high-growth companies ranging from start-ups to seasoned businesses with annual revenues exceeding $500 million. Aaron applies a practical, straight-forward approach to solving legal problems. Clients work with Aaron as a business partner to develop cost-effective strategies in connection with the following issues:

  • Advising on choice of entity, corporate governance and tax planning;

  • Structuring...

312-606-3211