The most prevalent reaction within the adult industry to the citations California's Occupational Safety and Health Administration (Cal/OSHA) has issued to Evasive Angles and TTB Productions is to question the validity of the classification of adult performers as employees, rather than independent contractors.
“It’s really a stretch to suggest that actors who are hired on a non-permanent, no-regular-hours situation should be considered payroll employees and not independent contractors,” Christian Mann, owner of Video Team, told AVN.com. Mann declined to comment specifically on the citations handed down earlier this week after Cal/OSHA determined otherwise.
Mann’s statement can be said to represent the thoughts of many of those in the adult industry — including the adult performers themselves — though the vast majority of industry insiders declined to comment on the groundbreaking implications of adult performers being considered employees.
Cal/OSHA worked with the Division of Labor Standards Enforcement to establish whether or not adult performers should be viewed as independent contractors or employees. Cal/OSHA would have been unable to claim jurisdiction over the adult industry if performers were deemed independent contractors; their regulations only apply to employees.
“Everything indicates the working relationship pointed towards an employee/employer relationship,” Dean Fryer, a spokesperson for Cal/OSHA, told AVN.com. “However, when we asked directly what the employer thought their relationship was, and then when we asked what the employee thought the relationship was, both came up and said neither believed that they were employed.”
According to Fryer, however, several aspects of the duties of an adult performer were considered during the process of classification. Those included the nature of the work being performed, the degree of control the employer has over how that work is being done, how the work was directed, and whether the principal or the workers supplied the instruments, tools, or location where the business was being conducted.
“Independent contractors are told, ‘Here is the job that you must complete. Here’s the end product I would like. Go do it,’” Fryer explained. “With employers and employees, there’s more control. The employer tells the employee when they need to be at work, how they need to do the job, you know … what environment they need to be [in], what is the setting, what tools of the job are required.”
However, some prominent attorneys who have represented adult video companies, as well as adult nightclubs, disagreed.
“There are a number of cases out there that deal with the fact that when you have professional entertainers or even people reading the news, those people are not subject to the employment laws because they’re independent contractors,” noted Brad Shafer, counsel for several large dance club chains. “You have to take a look at the contracts that these people sign, and a whole host of factors.”
Shafer was quick to note that he is not admitted to the California Bar, nor has he looked at the California workers compensation law recently. But in his practice, he has gotten reports from all over the country regarding disputes between nightclub owners and government agencies over whether dancers are legally to be considered employees or independent contractors.
“For example, the California Employment Development Department (EDD) tried to litigate the issue of the employment status of exotic dancers, and in general, they lost,” Shafer reported. “I don’t know if they lost every one of their cases, but I’ve got a whole packet full of cases that they lost on that issue, and I don’t see the EDD continuing to try to raise this issue. On the other hand, the Division of Labor Standards Enforcement (DLSE), which is the state minimum wage law, is trying to litigate this issue; their contention would be that regardless of what the legal status might be under the EDD, for the DLSE it’s something different.
Fryer admits this doesn’t mean that adult performers will necessarily be considered independent contractors in every situation.
“In this specific situation, we applied the tests. We asked the questions about the working relationships, and we found that they were employees,” Fryer said.
But according to attorney Jeffrey Douglas, Cal/OSHA’s press release on the issuance of the citations goes much further than Fryer’s statement.
“The Cal/OSHA press release strongly implies that their jurisdiction covers every adult film shoot. This is not necessarily the case,” Douglas said. “Their jurisdiction clearly applies when the actors and actresses are being treated as employees — which is to say, either they have a contract over some extended period of time or taxes are withheld and they filed W-4 forms, versus treating them as independent contractors, which is to say, not withholding taxes and 1099-ing them.”
“This is really the first time we’ve gone into this industry,” Fryer admitted. “So this is ground-breaking. This is going set the course for how these inspections and citations will be carried out in the future.”
Fryer was unaware of any other Cal/OSHA investigations currently being pursued within the adult industry. “If we hear about additional companies that are not taking precautionary measures and exposing their employees to risk, we will look into it,” Fryer said.
Of course, Cal/OSHA will have to prioritize their investigations, and the welfare of adult performers may not be near the top of list with a Republican governor in office in a state still recovering from a recession. “We have to prioritize all of our activities in our investigations. But, you bet we have the jurisdiction, and I think we would most likely move forward if we had the opportunity to look into the issues.”
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For his part, Douglas advises production companies to exercise caution in the conduct of their moviemaking activities.
“The question is, to what degree is the state going to over-regulate?” Douglas asked. “But irrespective of what Cal OSHA does, the fundamental points [of the state’s blood-borne pathogen standard] need to be followed. That is, there should not be an exchange of semen internally because it’s too dangerous, so condom use needs to be universal when there is what would otherwise be unsafe practices engaged in.
“That doesn’t mean there can’t be external ejaculation on parts of the body that are not mucus membranes, but it means that internal ejaculation is inherently unsafe and it’s a practice that eventually will have to stop, and it should stop immediately.
“Moreover, penetration without condoms is unnecessary. That is, it can be filmed in such a way that nobody is aware that there’s a condom on, and that should be the standard. If it’s without condom, then you are increasing the risk, especially if there is multiple-partner internal ejaculation. You’re just begging for problems. In addition, the current testing protocols of AIM need to be followed religiously, and as far as I know, the industry is doing that.
“There are two observations to be made about the situation that may appear to be contradictory,” Douglas concluded. “One, the industry has done extraordinarily well, better than any imaginable industry, in protecting its workers from exposure to serious health risks. However, it’s not good enough.”
Attorney John Weston, who represents several adult production companies, also advises all producers to go to the Cal/OSHA Website and read their requirements.
A public meeting of industry figures on this issue is currently in the planning stage.
