Tag: employment law

“Direct Threat” Defense to Discriminating Against HIV+ and Hep C+ Performers

Recently, there has been much discussion about whether performers in the industry who are HIV+ or Hep C+ or even previously infected with a disease such as syphilis should or could be allowed to perform again, even with condoms. This author has seen numerous tweets, forum message board posts and comments debating whether a production company could knowingly discriminate against a performer who has been infected with a non-curable disease that would be considered a disability under the ADA (Americans with Disabilities Act).

Many commentators and arm-chair attorneys have put forth the notion that to not allow such performers to work in the adult entertainment industry as performers in front of the camera would amount to an unlawful discriminatory act, actionable in court. While this might be true, employers do have a defense to such if they can establish that the infected employee is a “direct threat to the health and safety” of the other performers on set. OSHA and CalOSHA require that all workplaces are safe and free from hazards for all employees.

The direct threat defense is a narrow exception to the general rule that employers may not discriminate based on disability. An employer’s determination that an employee poses a direct threat cannot be based on fears, misconceptions, or stereotypes about the employee’s disability. The employer must make a reasonable medical judgment, relying on the most current medical knowledge and the best available objective evidence.

In deciding whether a direct threat exists, an employer should consider:

  • the duration of the risk
  • the nature and severity of the potential harm
  • how likely it is that the potential harm will occur, and
  • how imminent the potential harm is.

These factors must be weighed against each other to decide whether a direct threat is present. Even if an infected performer is using a condom does this negate any and all possibility of transmission of HIV or other various bloodborne pathogen illnesses during a scene ? What if the condom breaks ? What if the male performer prematurely ejaculates inside of the vaginal or anal cavity or his co-performer ? What risk is there to other members of the crew ? These are questions that need to be answered and addressed by not only the production company staff but also their medical team.

In 2002 the United States Supreme Court squarely decided this issue in the seminal case of Chevron USA Inc. v. Echazabal. Mario Echazabal worked at Chevron’s El Segundo, California oil refinery for some twenty years. During this time, he worked as a laborer, helper, and pipefitter for various maintenance contractors, primarily in the coker unit. In 1992, Echazabal applied to work directly for Chevron at the refinery’s coker unit as a pipefitter/mechanic. He again applied in 1995 for the position of plant helper. On both occasions, Chevron determined that Echazabal was qualified for the job and could perform its essential functions based on his past work history, and extended Echazabal job offers contingent on his passing a physical examination. In late 1993, Echazabal was diagnosed as having chronic active Hepatitis C.

After examination and review, Chevron’s physicians concluded that Echazabal should not be exposed to the solvents and liver-toxic chemicals in the refinery and Chevron withdrew its offer to hire him. They reached this conclusion even though Echazabal’s physicians had not issued any restrictions precluding him from working in the refinery.

Chevron’s decision was based on a medical assessment-which Echazabal contested was not grounded in current medical knowledge or the best available objective evidence-of the ability of Echazabal’s liver to cleanse itself of the chemicals to which he had been, and would continue to be, exposed in the refinery.

The Supreme Court held that before excluding Echazabal as a direct threat, Chevron was required under EEOC regulations to show that it had made an individualized assessment of his then current ability to perform essential job functions. This evaluation was required to have been derived from current medical knowledge and objective evidence.

The EEOC regulations, which were upheld in Chevron, set forth four factors for determining whether a direct threat exists: (1) the potential duration of the threat; (2) the nature and severity of the threat; (3) the likelihood that the threat will occur; and (4) the imminence of the threat. The Supreme Court found this approach reasonable because it supports a particularized analysis of the harm to the employee.

Even though Echzabal posed no harm to any other employee, his Hepatitis C combined with the exposure to the toxins at the refinery posed a threat to his own life. The Supreme Court held that even a threat to one’s self was enough to find that Chevron did not discriminate against Echzabal and remanded the case back to the Ninth Circuit for further hearings. Under the EEOC regulations, Chevron bore the evidentiary burden of establishing the existence of a direct threat. The individualized determination of direct threat also required Chevron to prove that possible accommodations were examined and found not to exist within reason.

I have highlighted that last sentence since it is so important in this matter. While it may be medically possible to determine that a HIV+ or Hep C+ performer is a “direct threat” under the four factors (again each case is different and will be factually based on how and what type of content each company produces) it does not mean that you can simply not hire that performer for any position on the set. It would be recommend that if another position is available (camera person, production assistant, videographer, lighting, craft services ect) that does not require the possibility of fluid transmission, that the HIV+ or Hep C+ performer be employed in that capacity. There is no basis under the “direct threat” defense that an HIV+ or Hep C+ person could not work in any other capacity on set. Failure to accommodate a potential employee’s medical condition can and will likely result in a claim of discrimination with the EEOC or California’s equivalent FEHA.

Therefore, this author cautions any studio or employer in the adult industry that is faced with the potential hiring of an chronically infected performer to seek the legal advice of an attorney experienced and knowledgeable in employment law before making any decisions or even comments to the potential performer. Remember, each potential hire will require an individual assessment as the direct threat. A studio cannot make a blanket decision that they will simply not hire a chronically infected performer.

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Discrimination Against Pornstars, Escorts, Kinksters and Swingers

One area of law that often receives much publicity in the mainstream media is employment law. There are always news reports of litigation about sex discrimination in the work place. Media loves reporting on multi-million dollar judgments in sexual harassment cases, especially those involving celebrities. They also love a story involving a pornstar getting fired from a job because of his/her porn-past.

Recently, I appeared on Taboo Fetish Radio, hosted by Sydney Screams and Whitney Morgan, to talk about what protections current and former pornstars, escorts, sex workers and even those with an alternative lifestyle such as Kinksters or Swingers have in regards to being singled out and fired from their jobs ( Please see:  http://www.blogtalkradio.com/porn-star-radio/2012/09/20/taboo-fetish-talk ).

In a recent case that is still being litigated, Ms. Stacie Halas, a middle school teacher, was fired from her teaching position with the Oxnard School District in California on April 18, 2012 for her involvement in pornography movies. ( Please see: http://www.vcstar.com/news/2012/jul/23/judge-to-hear-dismissal-case-of-oxnard-teacher/ )

“The school board voted unanimously April 18 to fire Halas, saying her continued employment would disturb the classroom environment. Halas appealed the decision to the Office of Administrative Hearing, a quasi-judicial tribunal that handles such disputes. In a notice of defense, Halas’ other attorney, Rich Schwab, says Halas did nothing illegal and is fit to teach.

In accusation documents filed with the Office of Administrative Hearing, the school district says Halas lied about her connection to pornography and about the reason she resigned from a neighboring district. In the days after the discovery of the pornographic movies, district officials said students talked about and watched the movies on campus, and a classroom where Halas once taught was vandalized.”

It appears from this quote that the underlying reasons for Ms. Halas’s termination was not actually her involvement in pornographic movies but rather the falsification of her employment application. This is a common way for employers, especially in California, to fire an employee at anytime for basically any reason. Many state and federal courts have held that if an employee lies on his/her employment application then they have basically defrauded the employer into hiring them and thus has no legal recourse even if they were fired illegally. The doctrine of unclean hands comes into play and that falsification can act as almost a complete bar to later claims by employee for being fired for a non-lawful discriminatory cause such as race, gender, sexual orientation, skin color or place of national origin.

Basically, if you lie on your employment application you will have a mountain to climb to even be able to sue your employer for any reason, even if your boss tried to force you to provide him/her sex on the job in exchange for not firing you ( You would still have a lawsuit against your boss individually though ).

Courts have generally adopted the following line of reasoning as noted in Summers v. State Farm Automobile Ins.,  ; ( Please see: http://bulk.resource.org/courts.gov/c/F2/864/864.F2d.700.87-1087.html )

Many of the courts have accepted an analogy posited in Summers : “The present case is akin to the hypothetical wherein a company doctor is fired because of his age, race, religion, and sex and the company, in defending a civil rights action, thereafter discovers that the discharged employee was not a ‘doctor.’ In our view, the masquerading doctor would be entitled to no relief, and Summers is in no better position.”

Courts are rarely sympathetic to employees that are less then truthful when applying for employment. A prospective employee that has a past in pornography, prostitution or even an alternative lifestyle may not be desirable hiring choice for many employers, especially those that have mainstream visibility or conservative clients. Even visible tattoos has been an issue in regards to being employment.

Obviously, prior employment or self employment is a much larger issue when it comes to future employment applications. Those that are or have been sex workers, whether in adult films, as an escort, stripper, dominatrix, sub, unlicensed massage parlor worker or any of a number of related fields have the highest risk when falsifying an employment application. Anyone would be hard pressed to find a court decision finding that an employer, who terminated a such an employee, would be liable for a discriminatory termination. ( If any of my readers know of any such appellate court decision from any state in the United States I would very much appreciate that information.) Therefore, I am watching Ms. Halas’s lawsuit with great interest. Her claims may set a positive legal precedent as to protecting individual sexual liberties but I have my doubts.

As for lifestyle choices such as BDSM or swinging, since these do not apply to previous employment there is much less of a risk of not revealing these choices to a prospective employer on an employment application. However, if your involvement in those lifestyle choices did involve earning income from them such has producing content and selling it on a Clips4Sale.com store that might be seen as self employment by your employer.

There might be one exception to this situation. While I have found no cases on point involving sex workers or alternative lifestyle choices, there would be an argument for a terminated employee to make if the employer had discovered the falsification on the application and did not do anything about it immediately. Meaning that if you lied on your employment application and four days into your employment your employer or supervisor discovers your lie and takes no action but five years later tries to fire you for the falsification as a pretense for some other reason you might have a defensible position however I cannot state for certainty whether that would provide the basis for a victory against your employer.

The lesson in this is that if you lie on your employment application it can come back to haunt you, even many years later. Obviously being completely honest about your past or present may cost getting you a job. What you decide to reveal on an employment application is a personal decision. Just be aware of the law.

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Returning to Work ? Somethings You Should Know…

September 3, 2012, Labor Day, ironically, is the day that the FSC/APHSS has determined to be the best day to return adult performers to a regular production schedule, a mere 10 days after receiving a prophylactic antibiotic shot to hopefully cure the syphilis outbreak in the industry. Now that the moratorium on production has been lifted, be safe and here’s some facts that you should know before you head off to set;

  • There are 9 performers in adult confirmed positive for syphilis as of today;
  • Syphilis may take up to 90 days to detect through testing with the average range being 21 days;
  • Once you test positive for syphilis you may always test positive for syphilis;
  • If you are receiving your test results through APHSS you may not know that you are working with another performer that previously tested positive for syphilis – the APHSS database only tells you whether someone is “cleared” to work;
  • There is a disagreement between APHSS and TTS as to the proper test to use to detect syphilis;
  • APHSS states that their required and mandatory re-test can detect syphilis at 14 days while TTS states two tests are necessary to detect it this quickly.
  • Only 300 performers opted to take the antibiotic shot;
  • Despite the moratorium on production, there were some production companies and agents that continued to book scenes;
  • Some performers continued to escort during the moratorium;
  • Condoms may not protect you from catching or spreading syphilis;
  • Treatment for syphilis may make birth control pills ineffective;
  • Often those with syphilis do not show any symptoms of the disease;
  • In the primary and secondary stages syphilis is very contagious;
  • If a performer’s off camera sex partner(s) were not treated it is possible to reinfect those that were treated;
  • An antibiotic shot is not a vaccine and a performer can be reinfected quite easily;
  • If you catch syphilis, receive treatment and then get reinfected it will require 1 shot a week for 3 weeks to cure it;
  • Having an open syphilis sore makes it 2 to 5 times more likely that you can transmit/contract HIV during sex.

If there are any facts I have let off this list please feel free to add a comment to this article and I will add them to the list.

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Syphilis and Forced Employer Vaccinations…

Today APHSS & the FSC begin a regiment of providing free antibiotic shots to porn performers in order to prevent the spread of syphilis. I have received numerous emails, texts, phone calls and DMs on Twitter from various members of the adult industry community as to the legality of an employer demanding that a worker receive a prophylactic antibiotic shot an as a condition of employment.

Basically, it is my understanding that certain production companies will not hire a particular performer unless they can show proof of receiving the antibiotic shot for syphilis through the APHSS system. I am unaware of any exception to this condition by APHSS or FSC that would allow a performer to seek out the consultation of their own physician as to the risks and benefits of receiving such treatment. Even though the prophylactic antibiotic shots begin today very little information has been disseminated to the performers other then if they receive the shot they can return to work in as little as 10 days. I have not seen much in the way of information being provided to the performers in regards to the risks of the antibiotic shot or the side effects of such. Nor have I seen much in the way of alternatives being proposed.

I cannot and will not provide medical advice. What I can say is that, legally, every person has the right to chose their own medical treatment from their own physician and if necessary refuse such treatment.

In California it is a well established rule of law that a physician who performs any medical procedure without the patient’s consent commits a battery irrespective of the skill or care used. The consent of a patient must be “informed.” Under the doctrine of informed consent the patient must have the capacity to reason and make judgments, the decision must be made voluntarily and without coercion, and the patient must have a clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis. Accordingly, the right to refuse medical treatment is equally “basic and fundamental” and integral to the concept of informed consent.

I urge all performers to seek out a consultation from their own physician as to the need for antibiotics for treatment for a disease they may not have and may not have even been exposed to.

As to whether an employer may force inoculations/vaccinations as a condition of employment it may be permissible under California law, however, any performer having an adverse reaction to the inoculation/vaccination would have a civil lawsuit and a workers’ compensation claim against the entities and production companies requiring such inoculation/vaccination as a condition of employment. In Maher v. Workers’ Comp. Appeals Bd., 33 Cal.3d 729 (1983), a nurse’s assistant was required by her employer to undergo a physical examination that included a test for tuberculosis. When she tested positive for the disease, she was required to undergo treatment for tuberculosis as a condition of continued employment. She developed a significant adverse reaction to the treatment. The California Supreme Court held that employer-required medical treatment for a nonoccupational disease arises out of the employment and is compensable. (Id. at p. 738; see also Roberts v. U.S.O. Camp Shows, Inc. (1949) 91 Cal.App.2d 884, 885 [205 P.2d 1116] (Incapacity caused by illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer.)

By demanding and directing the prophylactic antibiotic shot, those production companies requiring such open themselves up to a myriad of liability as to any death, incapacity or future treatment resulting from such decision. It is cautioned that the performers seek medical advice as to the treatment and production companies seek legal advice to the ramifications of demanding forced prophylactic antibiotic shot as a condition of employment.

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No Work Comp? What Employers Need to Know!

As my readers are now aware from my article posted on August 19th – Work Comp: Porn Performers EEs vs. ICs, performers are indeed employees in the state of California for purposes of worker safety laws. California, as many other states do, requires that all employers within its borders secure workers’ compensation insurance coverage. However, what happens if an employer is uninsured for workers’ compensation in the state of California ?  California has rather harsh penalties for failure to secure workers’ compensation insurance, the California Labor Code reads in relevant part;

3700.5. (a) The failure to secure the payment of compensation as required by this article by one who knew, or because of his or her knowledge or experience should be reasonably expected to have known, of the obligation to secure the payment of compensation, is a misdemeanor punishable by imprisonment in the county jail for up to one year, or by a fine of up to double the amount of premium, as determined by the court, that would otherwise have been due to secure the payment of compensation during the time compensation was not secured, but not less than ten thousand dollars ($10,000), or by both that imprisonment and fine.

(b) A second or subsequent conviction shall be punished by imprisonment in the county jail for a period not to exceed one year, by a fine of triple the amount of premium, or by both that imprisonment and fine, as determined by the court, that would otherwise have been due to secure the payment of compensation during the time payment was not secured, but not less than fifty thousand dollars ($50,000).

In addition to possible imprisonment and fines, the state of California can issue penalties of up to one hundred thousands dollars ($100,000) against the employer in addition to the amounts listed above even for a first offense. The uninsured employer will also be subject to a stop order being levied against it by the Director of Industrial Relations. A stop order is basically an order/finding by the Director that such employer will immediately shut down and will not conduct any business utilizing employees until such time that the employer has secured workers’ compensation insurance and presents evidence of a policy to the Director. Also, the Director will issue an additional fine of one thousand five hundred dollars per employee not legally insured;

3722. (a) At the time the stop order is issued and served pursuant to Section 3710.1, the director shall also issue and serve a penalty assessment order requiring the uninsured employer to pay to the director, for deposit in the State Treasury to the credit of the Uninsured Employers Fund, the sum of one thousand five hundred dollars ($1,500) per employee employed at the time the order is issued and served, as an additional penalty for being uninsured at that time or issue and serve a penalty assessment order pursuant to subdivision (b).

(b) At any time that the director determines that an employer has been uninsured for a period in excess of one week during the calendar year preceding the determination, the director shall issue and serve a penalty assessment order requiring the uninsured employer to pay to the director, for deposit in the State Treasury to the credit of the Uninsured Employers Fund, the greater of (1) twice the amount the employer would have paid in workers’ compensation premiums during the period the employer was uninsured, determined according to subdivision (c), or (2) the sum of one thousand five hundred dollars ($1,500) per employee employed during the period the employer was uninsured. A penalty assessment issued and served by the director pursuant to this subdivision shall be in lieu of, and not in addition to, any other penalty issued and served by the director pursuant to subdivision (a).

I have seen the Director of Industrial Relations chain and paid lock businesses, not allowing entry until all insurance is secured and fines paid. This is not a situation that should be taken lightly. The state of California can be very aggressive in regards to prosecuting uninsured employers.

Beyond the regulatory scheme of imposing fines and possible incarceration, there are also possible negative effects in regards to a claim filed by an injured employee. In situations where an employer is insured for workers’ compensation, an injured employee’s ONLY remedy is to file a workers’ compensation claim. In instances of uninsured employers, an injured employee has several choices as to how to handle their claim for injury.

First, the injured employee may certainly still file a workers’ compensation claim with the Workers’ Compensation Appeals Board as they would do if the employer was insured. The injured employee may also file a civil lawsuit in addition to the workers’ compensation claim. Finally, if the employer does not defend and/or pay benefits on the workers’ compensation claim, the Uninsured Employer’s Benefits Trust Fund will step in and do so on the behalf of the employer. If the UEBTF does in fact provide benefits on the behalf of the employer to the injured employee, they will then seek ALL possible means of reimbursement from the employer, including pursuing civil actions and the filing of liens against property.

Furthemore, the employer simply filing for bankruptcy will not stop the UEBTF from pursuing their recovery actions directly against the owners of the uninsured employer. Any owner with at least a 15% share of ownership will be personally responsible to reimburse the UEBTF for all benefits paid the the injured employee. And the state can collect all of the benefits from just one owner. Be extremely careful of whom your partners are. The California Labor Code reads in relevant part;

3717. (a) A findings and award that is the subject of a demand on the Uninsured Employers Fund or an approved compromise and release or stipulated findings and award entered into by the director pursuant to subdivision (e) of Section 3715, or a decision and order of the rehabilitation unit of the Division of Workers’ Compensation, that has become final, shall constitute a liquidated claim for damages against an employer in the amount so ascertained and fixed by the appeals board, and the appeals board shall certify the same to the director who may institute a civil action against the employer in the name of the director, as administrator of the Uninsured Employers Fund, for the collection of the award, or may obtain a judgment against the employer pursuant to Section 5806. In the event that the appeals board finds that a corporation is the employer of an injured employee, and that the corporation has not secured the payment of compensation as required by this chapter, the following persons shall be jointly and severally liable with the corporation to the director in the action:

(1) All persons who are a parent, as defined in Section 175 of the Corporations Code, of the corporation. (2) All persons who are substantial shareholders, as defined in subdivision (b), of the corporation or its parent…

(b) As used in this section, “substantial shareholder” means a shareholder who owns at least 15 percent of the total value of all classes of stock, or, if no stock has been issued, who owns at least 15 percent of the beneficial interests in the corporation.

In conclusion, penalties, fines and incarceration are all possible ramifications for not securing workers’ compensation insurance. Furthermore, employers that do not have workers’ compensation insurance are also putting their personal finances at stake in the form of civil judgments and liens enforced, not by an injured employee, but rather by the state of California through the UEBTF. If you’re an employer in the state of California and do not have workers’ compensation insurance it is imperative that you immediately seek such coverage before either (a) a work related injury occurs and/or (b) the Department of Industrial Relations does a spot inspection and issues a work stoppage order.

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Work Comp: Performers – EEs vs. ICs

The debate of performers being independent contractors or employees is an issue that comes up often in my practice. Whether it is an injured or infected performer, a director worried about his/her liability for an on-set injury or a studio owner asking my assistance in securing workers’ compensation coverage for his/her company, this is an issue that remains a hotly debated topic. Many in the industry still believe that for purposes of worker safety laws performers are independent contractors and not the employees of the producer paying them, directly or indirectly. This cannot be farther from the truth. Even during the open meetings with Cal-OSHA in June 2011 I heard numerous performers and directors declare themselves independent contractors during the public comments. Only to have Ms. Gold of Cal-OSHA flatly deny that issue.

Unfortunately or fortunately depending on what side of the debate you are on, a worker cannot simply declare themselves to be something. A worker’s status is dependent upon statutes and case law, not what the beliefs of the employer OR the employee happens to be. For this article to truly explain all the relevant statutes and case law surrounding the independent contractor vs employee debate would require hundreds of pages if not an entire book. Therefore, for the sake of brevity it is perhaps easier to select two California cases that are on point with this issue and illustrates for those reading this article that this issued is well settled.

Often porn performers compare themselves to both actors as well as stunt-people. The job of a porn performer can be said to be a blend of the acting and performing risky, albeit safe, stunts on set. Many inaccurately believe that stuntpeople and porn performers cannot be an employee under the traditional definition of such since they are only hired for the day or even a few hours. This is simply not true in California and in most states ( Note: It is possible though to be an employee for worker safety laws but an independent contractor for tax purposes).

Stuntpeople have been considered employees of the production company hiring them for at least 50 years in California. In Durae v. Industrial Accident Commission, 206 Cal.App.2d 691 (1962), the Second District Court of Appeals (this happens to be the court with jurisdiction over all of Los Angeles County) determined that a stuntman was indeed an employee for workers’ compensation purposes.

Petitioner is a motion picture and television actor. He was engaged to make a personal appearance at a rodeo in Pueblo, Colorado, in August 1960. His act was to include a demonstration to the audience of how motion picture and television shows were filmed. As a part of this demonstration, a man would ride a horse at a fast pace across the area, petitioner would fire a shot at the rider, and the rider would fall from the horse, taking what, among stuntmen, is commonly called a “saddle fall” to the ground.

 Originally, the Industrial Accident Commission (the precursor of today’s Workers’ Compensation Appeals Board) ruled against the injured employee, William Mansker, finding that he was indeed an independent contractor. Mansker appealed the decision and was granted benefits by the IAC. The employer, Donald Durae, then appealed the case to the California Court of Appeals where Mansker’s award of benefits was upheld and he was determined to be an employee and not an independent contractor. The court went on to state;

This finding is compatible with the findings affirmed by the Supreme Court in two cases somewhat comparable on their facts. In Drillon v. Industrial Acc. Com., 17 Cal.2d 346 [110 P.2d 64], one who hired a jockey to ride his horse in one race was held to be an employer on the basis that he had the right to control the manner in which the jockey rode the horse. In Schaller v. Industrial Acc. Com., supra, 11 Cal.2d 46, the petitioner made separate contracts with four trapeze aerialists that each would perform his specialty for a 20-week engagement. He then agreed to provide the four aerialists as an act in a traveling show. He was held to be an employer although he in no manner directed the act or the stunts of the individual aerialists.

It is clear from the holding in this case that stuntpeople have been considered employees of their contracting companies for at least the past fifty years. This ruling is consistent with the current state of California law. Stuntpeople remain employees in California, as do most workers.

Some porn performers may consider themselves more akin to actors then stuntpeople though. However, just as stuntpeople are considered employees of the production company so are actors, even those hired and paid through a talent agency. It is a misguided belief that, by a production company not paying the talent but rather the agent, they can avoid being held liable for a work related injury. It is also a misguided belief by large production companies that hiring directors or smaller sub-contracting production companies to actually produce the content will shield them from liability. In California, we have a law referred to as the general-special employer rule. Which basically states that if Company A hires a sub-contractor -> Company B, to perform services for them and Company B hires their own employees then Company A has a duty to insure that Company B has workers’ compensation insurance. If Company A fails to “pull” the workers’ compensation insurance information of Company B and an employee of Company B suffers an injury then Company A and their workers’ compensation carrier will be liable to provide coverage for that injury.

In Johnson v. Berkofsky-Barret Productions, Inc. (1989) 211 Cal. App. 3d 1067, an actor, hired for the day, suffered a shoulder injury while filming a television commercial for IBM. He attempted to claim that he WAS NOT an employee of the production company and rather an employee of his agent so he could file a lawsuit in civil court against the production company ( Note: The injured worker preferred to be an independent contractor so that he could sue under a civil tort theory and recover pain and suffering which is not possible to recover under a workers’ compensation claim ).

Johnson, an actor in television commercials, obtained acting jobs through a company called L’Image. Generally, L’Image directed Johnson to the shooting location of the commercial and advised him how to dress. The commercial production company then paid L’Image for Johnson’s acting services and L’Image, in turn, paid Johnson after deducting its percentage fee.

 Johnson, like many porn performers, was not paid directly by the production company but rather by his agent. The court then went on to discuss the employee vs. independent contractor distinction;

Labor Code section 3351 defines an employee as “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, …”

An independent contractor is “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.” (Lab. Code, § 3353.)

[5] “The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced. [Citations.] … [¶] …. [¶] … ‘[The] principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. …’ [Citations.] [¶]

The court then analyzed the six factors to determine employment status under S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341 and determined that;

We therefore conclude, as a matter of law, Johnson was an employee of BBP at the time of the accident and therefore he is limited to workers’ [211 Cal. App. 3d 1074] compensation as his sole and exclusive remedy for damages resulting from personal injuries. (Lab. Code, § 3602.)

In conclusion, it is clear from Durae, Johnson and Borello, that the type of control that a production company has over a porn performer while on set (hence being “directed” by a “director”) will make them liable for workers’ compensation benefits due to an on-set injury. Further, a production company should want an injured performer to be an employee, otherwise that injured performer could sue the production company for damages resulting from pain and suffering. In the case of an on-set transmission of HIV those damages could result in millions of dollars being awarded to the infected performer. However, under workers compensation no such recovery is available. Workers’ compensation actually protects the studios more so then the performers, if a company does indeed have coverage.

In a future article I will discuss the ramifications for not having workers’ compensation insurance under California law.

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The Syphilis Outbreak in Porn & Its Legal Ramifications

On August 16, 2012 XBiz reported that, according to talent agents Shy Love of ATMLA and Derek Hay of LA Direct Models, a male performer knowingly altered his paper test and worked in the industry while contagious with syphilis. According to the story on XBiz “the performer admitted to Hay he was feeling ill in mid-July and underwent tests with his personal physician, at which time the syphilis was originally diagnosed. He was also given medication at the time, Hay said. Then he tested on July 21, approximately a week later, at Talent Testing Services, which also identified the performer as positive for syphilis…” The story went on to state “the discrepancy on the performer’s test was discovered on Aug. 7, when the producer who received the scene paperwork from the director  “was doing his normal due diligence and noticed an irregularity in this performer’s test paper in comparison to what he was used to receiving from TTS…Hay said the portion of the test that notes “reactive or not reactive” for syphilis had been obscured.”

Obviously, this revelation caused numerous people in the industry to be upset and stressed. It appears from the reported story that this particular male talent knowingly altered his test and worked in the industry with full knowledge that he was contagious. I was asked several times on Twitter whether the actions by this particular male talent were criminal in nature.

The answer is yes. In California, if someone knowingly exposes another to a sexually transmitted disease they have in fact committed a crime. For knowingly exposing a scene partner, that contagious performer would be guilty of a misdemeanor which is punishable by imprisonment up to 6 months and a $1000.00 fine. I also believe that true is for each exposure. Therefore, as stated in the article by Shy Love, this performer worked on three different occasions with an altered test and thus that performer may be charged with three separate counts and possibly face more than a year in jail.

The relevant code sections are listed below;

California Health & Safety Code

120290. Except as provided in Section 120291 or in the case of the removal of an afflicted person in a manner the least dangerous to the public health, any person afflicted with any contagious, infectious,or communicable disease who willfully exposes himself or herself to another person, and any person who willfully exposes another person afflicted with the disease to someone else, is guilty of a misdemeanor.

120600. Any person who refuses to give any information to make any report, to comply with any proper control measure or examination, or to perform any other duty or act required by this chapter, or who violates any provision of this chapter or any rule or regulation of the state board issued pursuant to this chapter, or who exposes any person to or infects any person with any venereal disease; or any person infected with a venereal disease in an infectious state who knows of the condition and who marries or has sexual intercourse, is guilty of a misdemeanor.

Obviously anyone exposed by this male talent could press criminal charges against him.

However, there are other rights and remedies that an exposed and infected performer has. The main one being a claim for workers’ compensation benefits. If a performer is exposed on set to a virus or contagion that will require extended medical treatment and a loss of income for a prolonged period of time it is unavoidable that the performer will suffer because of it. Workers’ compensation insurance can provide benefits to that performer in the form of medical treatment and temporary disability payments for the loss of income until the performer can return to their usual and customary job activities, performing. While no one will “get rich” from a workers’ compensation claim it is a system of benefits to help an infected performer in case of an injury. Syphilis would in fact be considered a work related injury and covered by the appropriate Labor Code sections. Further, a workers’ compensation claim is not like a lawsuit where a performer would have to prove their claim like in civil court. In case of something like a syphilis infection all that would be necessary is for the infected performer to prove they worked with the original carrier of the infection and it will be presumed to be a work related injury. The burden would then shift to the production company to prove that the performer actually became infected somewhere else. It is almost impossible for a production company to meet that burden. Also in the workers’ compensation system “a tie” is usually decided in favor of the infected performer.

While this situation is extremely problematic for the industry and for the performers exposed there are remedies for them. However, this is a situation that needs to be learned from and never repeated. The health and safety of performers should be the first and foremost concern of other performers and the production companies.

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Paying Talent on Time: What Talent, Producers and Agents Need to Know

ablOne of the most confusing situations that confronts both talent and producers is when should talent be paid. Some producers are almost religious when it comes to “same day pay” while others place talent on payroll and may not pay for up to a month. Often, talent will contact my office with complaints of either not being paid timely and in rare occasions, when producer’s checks actually do not clear and “bounce.” This article will cover what talent, producers and agents have to be aware of in regards to when is payment due to talent. In California, there are serious penalties for failure to timely pay talent for work performed

Special attention must be paid to the California Labor Code when discussing work related payments. According to the Labor Code section 207, employers must establish regular paydays and post notices of when such days are. For example, if your production company has office staff and or production staff that are paid on the 15th and 30th of each month, these days will be presumed to be your regular pay schedule. Even though performers may not be part of your usual payroll schedule the 15th and 30th may be deemed to be your required days for paying talent, if you do not pay talent the same day and instead pay talent through a payroll service. For example, if talent works for your production company on August 28th and your usual pay date is the 30th you may be required to pay talent on the same day as you pay the rest of your employees.

If you are a small producer and do not have a regular payroll schedule to pay other employees then you must look to California Labor Code section 204 as to when talent must be paid. For wages earned between the 1st and the 15th of the month you must pay talent for their work no later then the 26th day of the same month. If the wages are earned between the 16th and the 31st of the month, wages must be paid no later then 10th day of the following month. For instance if talent works for you on August 8, 2012 that talent must be paid no later then August 26, 2012. If the shoot occurred on August 30, 2012 then talent must be paid no later then September 10, 2012. However, “payroll” does not mean that a producer get two weeks to pay talent. It actually means that a producer utilizes a real payroll service and other employees are being paid on the same date and that the producer is paying payroll taxes on the talent’s earnings. Simply stated, a producer cannot pay talent two weeks late and simply write a check for the full amount of the scene without deducting and paying taxes.

This information may come as a surprise to some of those that are reading this article. What will be more shocking is what are the penalties imposed by not following these payment schedules or in case your check bounces even if you pay the same day.

Failure to timely pay wages is not a situation you want to find yourself in as a producer. The penalty for such is that the talent’s right to payment at their rate continues for up to 30 days. Allow me to rephrase that, a producer will be required to pay the talent everyday for up 30 days as a penalty. For example, if talent performed for you on August 30, 2012, wages would have to be paid by September 10, 2012. If you did not pay talent by that date, that talent would be entitled to a penalty of whatever their rate was for the shoot (for example $1000) for each day payment was made late. Under Labor Code section 203 and 203.1 (in case of a check that does not clear) if you did not pay talent until September 30th you can be hit with a $20,000.00 penalty by the California Labor Commissioner for paying 20 days late. The penalty is $1000.00 per day (or whatever the talent rate is for that shoot) for up to and including the 30th day. Obviously, this is an extreme and severe penalty but one is that is often imposed and maintained by the Labor Commissioner. Even if you agree to settle with talent for less then the full penalty you will have to agree to send all payments to the Labor Commissioner’s Office who in turn will send it to the performer. Meaning there is no getting out of the this situation.

Further, it should be noted that nothing in the Labor Code has anything to do with whether a model release was signed nor can the Labor Code be contravened through a written agreement with talent. Simply put a producer cannot add a clause to a model release agreement indicating that they have up to six months to pay wages. Lastly, in addition to what is awarded to talent by the Labor Commissioner for unpaid wages, penalties and interest, the attorney representing talent will also be entitled to attorney’s fees.

Special attention should be paid by agents to this situation as well. It is often practice and custom within the adult industry for the agents to ask producers to pay them directly and then in turn the agent pays the talent. By doing this, the agent may unwittingly make themselves the employer in this matter and be subject to the same penalties for failure to pay talent timely. In California, there is a general legal conclusion that employment follows wages, which means if you pay the wages you may deemed to be the employer. Or in the alternative, if you are a producer and you pay the agent instead of the talent directly you may be in violation of the Labor Code if the Labor Commissioner determines you should have paid talent directly and did not and the agent failed to pay talent timely.

In conclusion, the payment of wages to talent is still a relatively untested area of law in the adult industry that is rife with potential pitfalls for the unwary and uninformed producer and agent. It is strongly recommended that you review your wage payment policies with a lawyer that is well versed in employment law and the Labor Code.

UPDATE:

I wanted to also add in some relevant case law and a brief synopsis of such so anyone reading this can realize how it applies directly to the adult industry.

In Smith v. L’Oreal USA, Inc. (2006) 39 Cal. 4th 77, the California Supreme Court ruled directly on this issue. Ms. Amanda Smith worked for L’Oreal as a “hair model” at an upcoming L’Oreal hair show. L’Oreal agreed to pay her $500 for one day’s work at the show. Ms. Smith worked at the show, where her hair was colored and styled, and she then walked a runway a few times. Ms. Smith stayed at the show until she was told she could leave. L’Oreal did not immediately pay her the $ 500 in wages it owed her, but waited over two months to do so.

Ms. Smith filed a law suit against L’Oreal, alleging that she worked for one day, that her employment was terminated at the end of the day, that L’Oreal violated its obligation to pay earned wages promptly upon separation, and that it should pay her “waiting time” penalties under Labor Code Section 203.

The California Supreme Court agreed. The Court held that the discharge element of Section 201 can be satisfied either when an employee is involuntarily terminated from an ongoing employment relationship or when an employee is released after completing the specific job assignment or time duration for which the employee was hired. An employee who works on a job assignment of short duration is not excluded from the protective scope of Sections 201 and 203.

If a production company does not pay your talent at the end of the shoot this could result in huge penalties being assessed against that employer. This would also apply to any temporary employees, including but not limited to directors, camera people, lighting or production assistants.

 

 

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Who Should Pay for Performer Testing ?

On July 24, 2012, Manwin the owner of membership websites known as Brazzers and Mofos and tubesites such as YouPorn, PornHub, and Tube8 made an announcement that they would donate $50,000.00 per month to create a “Performer Subsidy Fund” to reimburse performers for the cost of testing in the adult industry (See story here).

This fund would be administered by the Free Speech Coalition through their APHSS program. Basically, Manwin stated that they would reimburse all performers the costs of their tests within a given month up to $50,000.00, whether those tests were for Manwin productions or not. Manwin also called for other production companies to join with them in their generosity and also donate to the fund. They further donated a total of $35,000.00 to FSC/APHSS to administer the fund. However, they did place a time limit on the program indicating that the program would only run through the end of 2012. At which point it would be re-evaluated to determine if it would be continued into 2013.

Many people within the industry pointed out that this was a very generous, albeit suspicious offer from Manwin. There is a general opinion within the industry that Manwin, through their tubesites, was a direct contributor to the economic downfall of porn production. Why now would they voluntarily come forward and support performers to reimburse testing costs ? Some people even opined that they believed this was Manwin’s attempt to take over medical testing procedures in the industry.

However I think the answer can be found in California Labor Code section 222.5 which reads in relevant part;

“No person shall withhold or deduct from the compensation of any employee, or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment, nor shall any person withhold or deduct from the compensation of any employee, or require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.”

In short, employees in California cannot be made to pay for pre-employment medical testing, which is exactly what the STD testing is within the adult content production business – a pre-employment test. Without a clean test no production company will or should hire a performer to perform in an adult production.

I realize that many performers in adult do not and refuse to consider themselves employees. Rather they wish, for whatever reason, to be called independent contractors. I can assure anyone reading this article that performers, for purposes of worker safety laws, are indeed employees and not independent contractors. Perhaps for tax purposes they may be independent contractors. It is possible to be an employee for worker safety laws but yet be an independent contractor for tax purposes.

Further, on January 1, 2012 additional laws went into effect in California making the “willfull misclassification” of employees as independent contractors even more dangerous for employers. Labor Code Section 226.8 imposes significant penalties ranging from a minimum of $5,000 to $25,000 for “each violation.” The civil penalties for one misclassified individual could be tens of thousands of dollars depending on the interpretation of “each violation” and the penalty imposed. Obviously, if Manwin does not take remedial steps to comply with California law in regards to the classification of employees they may face significant penalties as well as potential lawsuits under California’s Private Attorney General Act, which allows individuals to file lawsuits to enforce California law.

It is this author’s opinion that Manwin is starting to realize that the performers are indeed employees and are taking steps to comply with California law. Obviously, they are trying to set a precedent with the reimbursement of testing costs, however they still fall short of actual compliance with Labor Code section 222.5. Since the “Performer Subsidy Fund” requires a performer to sign up for the program instead of Manwin paying for the pre-employment testing outright.

None-the-less, Manwin is taking a step in the right direction when it comes to the treatment of performers, however, it is only a half step. At some point all production companies will have to address not only peformers’ testing costs but also the issue of workers’ compensation for on-set injuries.

If you would like to read more on the issue of workers’ compensation and porn production here is a two part interview I did for XBiz Magazine in 2007 … Part I and Part II

In future posts I will be covering the issue of workers’ compensation insurance and its application to porn production sets further.

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The Condoms Have Arrived (Sort Of)

As you may remember from my article last summer for XBIZ World, I declared that the condoms were coming. That declaration was in reference to the position that Cal/OSHA had taken at the June 7, 2011, meeting in Los Angeles where a strong contingency of representatives of the industry turned out to battle their attempts to (further) mandate barrier protection use in the production of adult entertainment. It should be noted that technically, barrier protections are and have been mandated by California Code of Regulations, Title 8, Section 5193 for quite some time. However, the enforcement of such regulation has been spotty at best.

Based on the rather slow enactment of additional barrier protection regulation by Cal/OSHA, Michael Weinstein and the AIDS Healthcare Foundation decided to take their safe sex battle to a different receptive governing body, the Los Angeles City Council and Mayor Antonio Villaraigosa.

What Does The Act Require

On Jan. 23, Villaraigosa signed into law, the City of Los Angeles Safer Sex in the Adult Film Industry Act, hereby now requiring any production of adult content, within the limits of the City of Los Angeles, to use condoms for anal and vaginal sex while filming content involving penetration and ensuring that all ejaculate remains outside of a performer’s body. The act also requires all producers to be compliant with CCR Title 8, Section 5193, noted above.

Where Does The Act Apply (or doesn’t)

If you are not aware of the city limits of Los Angeles it may be easier to understand what cities the Act does not apply to. Remember this is a City of Los Angeles law and not a County of Los Angeles law. The Board of Supervisors of the County of Los Angeles has not (yet) adopted this law and therefore there are still numerous unincorporated cities in Los Angeles County where the act does not apply. Also, the act is not law within the 88 other incorporated cities in the County of Los Angeles.

For example Agoura Hills, Alhambra, Arcadia, Artesia, Avalon, Azusa, Baldwin Park, Bell, Bell Gardens, Bellflower, Beverly Hills, Bradbury, Burbank, Calabasas, Carson, Cerritos, Claremont, Commerce, Compton, Covina, Cudahy, Culver City, Diamond Bar, Downey, Duarte, El Monte, El Segundo, Gardena, Glendale, Glendora, Hawaiian Gardens, Hawthorne, Hermosa Beach, Hidden Hills, Huntington Park, Industry, Inglewood, Irwindale, La Cañada Flintridge, La Habra Heights, La Mirada, La Puente, La Verne, Lakewood, Lancaster, Lawndale, Lomita, Long Beach, Lynwood, Malibu, Manhattan Beach, Maywood, Monrovia, Montebello, Monterey Park, Norwalk, Palmdale, Palos Verdes Estates, Paramount, Pasadena, Pico Rivera, Pomona, Rancho Palos Verdes, Redondo Beach, Rolling Hills, Rolling Hills Estates, Rosemead, San Dimas, San Fernando, San Gabriel, San Marino, Santa Clarita, Santa Fe Springs, Santa Monica, Sierra Madre, Signal Hill, South El Monte, South Gate, South Pasadena, Temple City, Torrance, Vernon, Walnut, West Covina, West Hollywood, Westlake Village and Whittier do not have a similar law mandating condoms as a condition to receive a film permit. However, two cities in Ventura County, Moorpark and Simi Valley, are contemplating passing similar municipal laws.

Also, the act does not apply to the 144 unincorporated areas of Los Angeles County. The act is not law in Ventura County or any other county in California, at the time this article was written.

The act is law only in the City of Los Angeles. However, it is the law and must be adhered to if a production is going to occur at a location that is within the City of Los Angeles. If a production is outside the limits of the City of Los Angeles, then the use of barrier protection is not a required condition to securing a permit.

Who Is Required to Secure a Permit for Production ?

If you are going to produce a commercial shoot in any of the following areas; the County of Los Angeles, the City of Los Angeles, Diamond Bar, City of Industry, Lancaster, Palmdale or Southgate you must apply for a receive a permit through a non-profit organization called FilmLA Inc. (FilmLA.com). Other cities may have their own permit process so it is imperative that you check with each city’s permit department and remain compliant with those laws. However, for purposes of this article we will focus on productions within the City of Los Angeles.

Without or without condom, it should be noted that shooting a commercial production within the City of Los Angeles without a permit is considered a misdemeanor.

Since the fall of 2009, Section 41.20 of the Los Angeles Municipal Code (LAMC) makes it a misdemeanor offense for production companies to film without a permit. Since the then, the LAPD’s Contract Services Section Film Unit has made arrests and filed charges against film producers for Section 41.20 violations. Under Section 41.20, an unpermitted producer’s equipment can also be confiscated until the time of the court hearing to insure that the producer appears at the court. Obviously, if the producer is renting equipment by the day this could end up being more costly that the fine itself for failing to secure a permit. Needless to say, failing to secure a permit can not only end in heavy costs and fines but also jail time since a misdemeanor offense is punishable by incarceration for up to one year in jail.

What Is a Commercial Shoot ?

Under the City of Los Angeles Planning and Zoning Code section 12.22(A)(13), which requires all producers to secure film permits, it is safe to assume that every adult production would be considered a commercial shoot and thus would require film permit, even it occurred in the producer’s own home. The one area that is still somewhat gray is whether a webcam production would require a permit. And taking the act one step further, would a webcam show involving penetration between a husband and wife for commercial purposes require a permit and, if it occurs within the City of Los Angeles, a condom to prevent the exchange of bodily fluids between two married and consenting adults? This is one area of the law that has yet to be defined.

Do Content Trades Now Require Condoms?

The short answer is yes. As you may remember from some of my earlier articles about the condom law I had indicated that any attempt by Cal/OSHA to impose condoms would not apply to content trades. Cal/OSHA is a regulatory body that only has power over employment practices. A true content trade between performers would not involve employment issues and therefore Cal/OSHA had no legal authority to enforce condoms be used in that regard. However, now that condoms are no longer tied to the issue of employment, but rather as a condition of receiving a film permit, even a content trade would be considered a commercial shoot. Condoms would therefore have to be used on any hardcore production within the City of Los Angeles. As I noted above, the Act is so far reaching even a married couple in the privacy of their own home performing on web cam together may need a permit and a condom to stay compliant of the law.

Enforcement of the Act

Over the past several weeks I have received numerous phone calls from agents, producers, directors and even performers as to how the act will be enforced. At the time of writing this article that question remains unresolved and unanswered. Since the act has been signed into law by Mayor Villaraigosa there has been discussion about forming a committee to decide how to enforce the act. Within the provisions of the act there is a language that allows the City of Los Angeles, through its contracted agency, FilmLA Inc., to charge additional fees to pay for “inspectors to ensure compliance with conditions on film permits.”

Without going into a full analysis of First Amendment law, the act may be subject to a future legal challenge based on the its lack of content neutrality. Meaning that the city should not be able to impose a tax, which is what these additional fees may in fact be, based solely on the adult nature of the productions. This is still an area of law that is in flux though.

For argument’s sake, let’s assume that the law is not challenged. The obvious question is how will the city ensure compliance? While it is not known at this point how compliance will occur, my assumption will be that it will follow the same path that the Los Angeles Police Department used to ensure permit compliance in the past.

In past years I had been called to set several times by several different clients where a “bust” by LAPD was occurring. Previously, the San Fernando Valley vice unit of LAPD was responsible for policing and enforcing the permit law in regards to adult productions. Then, towards the end of 2007 Mayor Villaraigosa started a special unit that would target unpermitted productions, mainstream and adult. This unit comprised of uniformed and plain clothes officers.

Often the LAPD permit enforcement unit would work closely with FilmLA Inc., and perform spot checks on known shoot locations. FilmLA Inc., would provide shoot location information to the unit and a patrol car would be sent to drive by the location to check to see if there was any abnormal activity at the location, meaning, if someone was shooting at that location on that day without a permit. If they suspected that someone was shooting they would knock and ask questions and in some instances, when no one answered and they would jump a fence and/or gate to investigate.

While it is impossible to say with certainty whether this will be the way to enforce the act, I would suspect that it may be. Others have talked about requiring a nurse to be on all permitted sets as well to ensure compliance. There have been rumors that the City of Los Angeles will subpoena information from the agents and producers to learn the usual (unpermitted) adult production shoot locations. I doubt that this will happen but it is certainly a possibility. This type information has been subpoenaed in the past by Cal/OSHA from talent agents in the industry.

Penalties for Failure to Use a Condom

The actual law does not contain any information as to the possible penalties for shooting adult content within the City of Los Angeles with a permit and without barrier protection. I am sure that the committee previously noted will be setting the penalties associated with the act. As for shooting without a permit, those penalties have been previously noted. At this time, I do not know if there will be an enhanced violation for shooting adult content without a permit and without a condom.

It is the opinion of this author that it is just simply too early to begin to panic over this law. It does not appear that the city has yet formed the committee to devise the manner of enforcement or the penalties associated with it. There has been discussions of a March 5 date that the law will be implemented.

Hopefully, by then there will be more information released by the City of Los Angeles. I have talked with numerous people in the industry about their desire to move to Las Vegas, Miami or Phoenix to produce. It’s not necessary to leave Los Angeles to produce. Just based on the geographical limitations of the law, it is rather easy to produce around it.

As more information becomes available I will update this article. This author hopes that by the time this article is in print, the City of Los Angeles will have promulgated rules on to how to comply with this new law and the penalties involved for violating it. In my next article I will discuss those issues as well as tips on how to avoid being found in violation of the act.

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