LOS ANGELES—The enactment of AB5, the California law that forced employers to redefine many independent contractors as actual employees, upended the state’s “gig economy,” and created confusion for adult performers, as well as mainstream actors, freelance writers, musicians, photographers and other creative artists, who suddenly found themselves wondering if they could continue to work at all.
But according to Kiffanie Stahle, a Sacramento-based attorney who specializes in representing clients who run their own creative businesses, the situation is simpler than AB5, and its newly-passed companion law AB2257, makes it seem.
“I personally think people are overreacting to it,” Stahle told AVN, referring to the two new “gig worker” laws. “I think we’ve gone too far away from what is a true line between independent contractors and employees. People are pseudo-employees, but aren’t getting the benefits when the relationship ends.”
While the gig economy appears to be based on blurring that line, with companies hiring workers as “independent contractors” then in some cases paying them such low fees that they are forced to essentially work full-time to make ends meet, Stahle finds that trend in corporate behavior “unacceptable.”
“We have allowed large businesses to get away with paying people below minimum wage, not allowing them to have health care benefits — being pseudo-employees, basically, without any of the benefits that come along with an employment relationship, or the end of an employment relationship.”
Whether a worker should be considered an “employee” or “independent contractor” all comes down to one factor, Stahle says — control.
“The ‘employee or independent contractor test’ is really examining how much independence and control she has in performing her job,” Stahle said in a recent blog post on her site The Artist’s J.D., which provides legal advice for workers in creative fields. “The more that you are in charge, the more likely she is an employee. The more control and flexibility she has, the more likely she is an independent contractor.”
Like any photographers’ models, performers in adult videos, at least those they do not produce themselves, should be considered and treated as “employees,” Stahle said, in an interview with AVN.
“I always tell my photographer clients that there is no way in hell that your model will ever be considered anything but an employee,” she said. “You are telling them exactly where to stand, how to look, what to wear. When push comes to shove, the state is going to call them an employee.”
In other words, because a model must follow a director’s or photographer’s instructions, she does not control the conditions of her job. Therefore — employee.
In fact, Stahle says she has been giving the same advice for “a decade,” well before AB5 took effect in January of this year. The Internal Revenue Service test, which existed for federal tax purposes long before AB5 was enacted, “is not really any different” than the “ABC” test that is now required for many workers under AB5.
The “test” is applied by the employer, who assumes all of the “risk” in hiring workers as independent contractors when they may not meet the test, Stahle says.
For performers on camming platforms, the situation is different, however. Though there have been reports of camming platforms barring California-based performers, for fear that they would be required to hire them as “employees” under AB5, Stahle says that those fears appear unfounded. She equates the sites to a platform such as Patreon, on which creators post content, and fans pay fees to access that content.
“People who have a Patreon platform are not employees of Patreon,” Stahle said. “On a platform like that, their employees are people who make the tech — the engineers and those kinds of people who are making the tech platform possible for people to create on it. Not the creators themselves. Just because people create content on those platforms, it doesn’t turn them into employees.”
Finding themselves classified as “employees,” is not something that freelance workers — many of whom deliberately choose independence for its flexibility and ability to determine their own working conditions — should fear.
“Flexibility and employment are not mutually exclusive,” she said. “When I worked in restaurants, I worked for four different restaurants at the same time. If as a business owner, someone is providing the core services of my business then I need to respect that person and treat them like a member of the team. That’s legally what an employee is. An employee is a person who’s delivering the core products and services of your business.”
In Stahle’s view, AB5 is an attempt to correct a situation in which business has been permitted to rely too heavily on “pseudo-employees,” who are treated as “independent contractors” when they do, in fact, provide the core products and services of the businesses that hire them.
“AB5 is trying to say that these people never should have been allowed to be independent contractors under the law,” Stahle says. “We as a state are saying this is no longer acceptable. You need to be paying employment taxes, you need to have safety nets, you need to have unemployment benefits available to these people. We’re sick and tired of you as a corporation making millions of dollars off the backs of people who should be employees.”
Critics of the AB5 law, however, say the reality that the law has created is different from the bill’s intentions. In the adult industry, according to Free Speech Coalition spokesperson Mike Stabile, “we’ve had some companies pull out of California entirely, rather than deal with the regulations.”
But Stabile also noted that other adult production companies “have moved performers to payroll as a precautionary measure, while others have been waiting to see how exemptions play out.”
Other industries have also reacted to the law by cutting workers, rather than granting them the benefits and protections of employment. According to a Business Insider report last December, after the law passed the state legislature, “to save money, companies responded by slashing jobs for part-time and full-time freelance workers altogether — right before the holidays.”
Photo By Santosh7700 / Wikimedia Commons
