SACRAMENTO, Calif.—Last week, the California state legislature approved a wide-ranging slate of exemptions to AB5, the controversial law that attempts to reclassify many of the state’s “gig economy” workers as “employees.” But how the new changes, under new bill AB2257, will affect the adult industry remains confusing, according to Free Speech Coalition spokesperson Mike Stabile, who told AVN that FSC is currently “working on additional guidance” for adult performers and content creators, who remain unclear whether their work is covered by a “carve-out” from AB5.
The AB5 law, which took effect on January 1 of this year, required that large numbers of freelance workers who did their jobs on an “independent contractor” basis must now be hired as “employees,” with all of the protections, benefits and tax withholding requirements of any other company hire—which would cost employers 20 to 30 percent more per worker, according to a New York Times report.
Of course, many employers have proven either unwilling or unable to meet those requirements, while freelance workers are often reluctant to sign on with corporate employers—particularly in the adult industry.
“We've been opposed to the law as it relates to the adult industry. It doesn’t take into account the fact that most performers and crew are small business owners, and operate numerous income streams, from clips and cams to content trades and studio work,” Stabile told AVN. “We believe that any legislation put forward on behalf of workers should be responsive to workers' concerns.”
Exotic dancers were among the first adult industry workers to feel the effects of the new job-classification requirements.
AB5 was a response to a state Supreme Court decision, Dynamex Operations West v. Superior Court of Los Angeles handed down in April of 2018. The Dynamex case involved a trucking company that allegedly misclassified its drivers as “independent contractors” rather than employees. But the ramifications of the California Supreme Court ruling extended far beyond the trucking industry.
By the autumn of 2019—several months before AB5 took effect—the court’s ruling had led to an exodus of exotic dancers from California strip clubs, as AVN.com reported at the time. Those who wanted to continue working found themselves receiving paychecks with taxes withheld, but more importantly, bearing their legal names. The changes caused an estimated 200 dancers to stop working at clubs in San Francisco alone.
Camming platforms, which have proven to be a crucial outlet for adult performers during the coronavirus pandemic, also started to dry up for California-based performers. Following the passage of AB5, at least two major camming platforms reportedly banned models from the state, to avoid the possible requirement that they be hired as “employees.” And the impact didn’t stop at camming either, according to Stabile.
“We’ve had some companies pull out of California entirely, rather than deal with the regulations,” the FSC spokesperson said. “While the cam companies were the most public, we’ve certainly seen more production outside the state as a general trend.”
The problems of determining how workers can do their jobs appear to arise from what State Assemblymember Kevin Kiley, a Republican representing District Six, northeast of Sacramento, calls “the fundamental flaw of AB5 to behind with.” Kiley had led a legislative effort to repeal AB5, which most recently received a vote on August 24. The repeal, however, was “tabled” (that is, set aside) by a tally of 53-17.
“It has completely reversed the paradigm when it comes to the right to earn a living,” Kiley said in an interview. “It used to be that you could work unless there was some reason that the government said you couldn’t. Now you can’t work unless the government specifically allows you to. You need to get the permission of the legislature just to do your job.”
According to a report by the University of California at Berkeley, 8.5 percent of all California workers relied on independent contracting—more commonly referred to as “gig work”—as their main source of income in 2016, and the number is believed to have swelled since then. An even greater percentage of workers received at least some of their earnings from gig work.
Though the AB5 law was initially aimed largely at addressing working conditions for “app workers,” primarily drivers for online, ride-sharing services such as Uber and Lyft, it also had a direct impact on freelancers in almost all occupations, including the adult industry.
Under AB5, and under the state Supreme Court’s Dynamex ruling, employers must now apply a stricter test to determine whether a new hire is an independent contractor, or must be brought on as a regular employee. Previously, employers could apply the “Borello Test” to figure out how to classify a worker. Under the new law, for many types of jobs, employers must apply the tougher “ABC Test.”
The bill passed last week, AB 2257, allowed a lengthy list of worker categories to skip the ABC Test, and use the more lenient Borello Test instead. But what’s the difference?
Both tests involve a complicated set of standards for determining whether a worker should be an employee, or can be treated as an independent contractor. Under the ABC Test, however, a worker must meet three conditions.
The worker must be “free from the control and direction of the hiring entity in connection with the performance of the work,” as well as performing work “that is outside the usual course of the hiring entity’s business.”
Finally the worker must be “engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.”
For example, under the second condition, a department store that hires a sales clerk would have to treat that person as an employee, because sales is not “outside the usual course” of the store’s business. But if that same store hires a plumber to fix the bathrooms, the plumber may be an independent contractor, because plumbing falls outside the store’s usual business.
The Borello Test comes with a longer list of questions, but can be boiled down to asking whether the employer exercises “control” over the worker. Do workers set their own hours, supply their own equipment, operate without direct supervision or direction, and can they perform the work from a location of their choice? If workers appear “independent” under those standards, then companies don’t need to hire them as employees.
The AB2257 bill, which became law September 4 when Governor Gavin Newsom affixed his signature, relaxes AB5’s requirement that the ABC Test be used for performers, freelance writers, musicians, and a rangel of other occupations. But according to Stabile, for adult performers, the bill still leaves plenty of ambiguity.
The bill contains no mention of adult performers or the adult industry. But it does contain a new “carve out” for “performance artists” who are “performing material that is their original work and creative in character and the result of which depends primarily on the individual’s invention, imagination, or talent.”
But that’s not all. The “performance artist” must also be “free from the control and direction of the hiring entity in connection with the performance of the work,” and must maintain the right “to exercise artistic control over all elements of the performance,” and must keep the “rights to their intellectual property that was created in connection with the performance.”
The wording of AB2257 defines “performance artist” as an individual performing “comedy, improvisation, stage magic, illusion, mime, spoken word, storytelling, or puppetry.” But the law also says that the definition is “not limited to” those genres—meaning that adult performers could also come under the definition.
But because the adult industry is not mentioned specifically, what adult performers and crew can legally do under the law is “hard to say,” Stabile said.
“Adult performance is so varied,” he said. “The performance artist exemption seems to apply to cam models, but what about scenes where a director is involved? If the scene consists of two people in a room who are filmed having sex, does it fall into the carve out? Does the presence of a script preclude it? Where does the government draw the line when it comes to what consenting adults do with their bodies? How do they judge?”
The lack of language applying to the adult industry specifically makes the new, apparent exemption “confusing,” he added, “especially at a time when so much content is being produced remotely, in performers’ homes. Legislators unfamiliar with the industry often don’t understand the incredible complexity of what we do, and the control performers have in how they do it.”
Until the group creates new guidelines for adult industry workers, FSC recommends that producers and performers talk to their lawyers before deciding whether any particular production would allow workers to be classified as independent.
Because the legislature failed to address the adult industry directly, once again performers and other workers producing adult content have been left largely to fend for themselves. The new bill is less fuzzy on such professions as independent photographers, freelance writers, translators and musicians, who are now clearly exempted from the ABC Test requirements of AB5, as long as companies can show that they are not hiring independent contractors to replace employees.
Freelance writers under AB5 were given a limited exemption, for up to only 35 articles per year for any outlet. That cap is now lifted.
But Uber and Lyft drivers, the group that was the original focus of AB5, must battle on. The two companies have backed a measure, opposed by most labor organizations, on November’s ballot—Proposition 22—that would specifically exempt rideshare drivers from AB5 classification requirements.
The two app-based companies threatened to shut down their services in California altogether in late August, until a judge imposed an injunction on the state, allowing them to continue operating outside the AB5 requirements for a limited time.
Drivers for the two firms complain that they work full-time hours or more, without paid time off, health benefits or any other protections granted to employees. But Kiley says that where AB5 comes up short in addressing their plight is that the law does nothing to extend the “social safety net” to workers who either by choice or circumstance remain independent, instead simply forcing them to work as employees or lose their jobs entirely if companies refuse to hire them, or they choose not to be hired.
“It doesn’t seek to adapt our social safety net to a changing economy,” Kiley said of the AB5 law. “It simply seeks to freeze the economy and bind it to a paradigm that has already passed by.”
Photo By The Naughty American / Wikimedia Commons
