If you're producing movies in CA, be careful

Cal/OSHA Fines Adult Companies for Violating Health and Safety Regulations
By: Scott Ross
09-16-2004

CHATSWORTH, Calif. - Evasive Angles and TTB Productions, both adult companies owned by T.T. Boy, each received citations from California's Occupational Safety and Health Administration (Cal/OSHA) totaling $30,560 for violations of health and safety regulations related to the exposure of three performers to HIV earlier this year. The citations were issued Wednesday.

The citations are the first of their kind in the adult industry, and are notable for classifying adult talent as employees, not contract employees. By determining that adult talent should be considered employees, Cal/OSHA has placed the adult industry within their jurisdiction - meaning that production companies must follow Cal/OSHA regulations or leave themselves open to being subjected to penalties that can range from fines to having their studio shut down.

"Employers in the adult film industry must know how to protect their employees from health and safety hazards and understand the consequences of failing to comply with state regulations," said Vicky Heza, Cal/OSHA's deputy chief of enforcement, in a statement released to the media.

The employment status of adult talent was the subject of heated debate during the HIV crisis that began when Darren James was diagnosed as HIV-positive in April of this year. Heza had testified at a public hearing called by Assemblymember Paul Koretz in June that adult performers must be deemed employees for her department to be able to establish jurisdiciton.

Cal/OSHA has created a new pageon their Website to address the issues that arise from these groundbreaking citations.

i have mixed feelings on this.

i don't think porn should be made bareback anymore... people die.

on the other hand, how did cal osha establish performers as employees? i mean, some may only work for a particular company for one day EVER. the performers work for many companies. they don't pay withholding and don't receive benefits. they are under no commitment to do further work for the company.

to me, this sounds like an independent contractor.

so how is cal osha allowed to classify this person as an employee, and what will this mean to the industry in california? and what ramifications will this have on other companies who use independent contractors in other fields?

btw, do you think we'll see many porn companies leaving california over this?

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Originally posted by basschick
btw, do you think we'll see many porn companies leaving california over this?

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This article is so new, its hard to know. I don't know the laws in states like Nevada, but if I was a producer in California, I would definitely consider the cost of travelling to Nevada to shoot a film with independent contractors vs. the cost of shooting a film in CA with employees. With the additional payroll taxes, workers' comp. insurance, Cal Osha compliance, I am guessing, depending on the length of the shoot & number of cast & crew, there could be a significant savings, especially if you can get some economies of scale by shooting more than one movie at a time, using the same crew. I don't know how practical that is, but just a consideration.

As to you comment about employee vs. independent contractor, in the past, this has been a facts and circumstances situation. Several years ago, the California Chamber of Commerce published a laundry list of attributes for the two categories and, if my recollection is correct, you weigh the number of attributes applicable to each side to determine the person's status. I believe Cal Osha will be relying on one attribute, in particular, to make the case for employee. That attribute is control; When the "employee" works at the "employer's" worksite, under the direction of the employer, during the hours designated by the employer, that is pretty strong evidence that the person is acting in the capacity as an employee.

If you look at the mainstream studios productions (feature films), for income tax purposes, the studios several years ago took the position if they hired an individual to perform that person was paid as a W-2 employee vs. hiring the performer's "loan out" corporation, with a Federal "95 number" (Federal Employee Identification number), which would be treated as an independent contractor. The motivation in this instance was different; paying an employee, with deductions, is more tax advantageous than as an independent contractor for income tax purposes.

In the Cal Osha situation, they're trying to protect the health of the individuals. My guess is that they have a pretty strong agruement for considering them employees.

But, we had to know there was going to be fallout from the "AIDS scare" a few months ago. And, when the government views an industry or profession incapable of self-regulation, they will step in and do it for us. At that point, we're at the government's mercy.

Note: the above is just the humble opinion of one accountant, who has worked in the entertainment indusrty for several years. And, in no way reflects the views of management.

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Originally posted by basschick i have mixed feelings on this.
i don't think porn should be made bareback anymore... people die.

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I have very mixed feelings on this as well. First of all, whenever a government tries to legislate morality, a certain segment of the population responds by moving the activity underground, which increases the desire of people who want it.

Second of all, the "people die" argument is such a lame defense of such legislation. Notwithstanding that people do die from practising unsafe sex and that it's in people's best interest to practice safer sex, people also die of cigarette smoking, yet our governments continue to reap the profits from that industry.

People also die from gun use. The whole planet is dying from automobile use. The plastics industry in killing off the population of parts of Louisiana, which given their latest vote regarding same-sex marriage might not be a bad thing. People are also dying in Iraq, both Iragis and Americans. So using the "people are dying" arguemnt, while I understand your intention, basschick, isn't a very sound one.

Perhaps the state of California should be pouring more money into AIDS research, education, and prevention that instituting draconian laws.

Cheers
Dzinerbear

look at it this way... california found a way to shut down porn in their state if they so choose, without passing any new laws, and without directly attacking the porn industry. by requiring osha standards be applied to porn, they will force a lot of people out of state, even the ones using condoms.

"any bodily fluid" isnt just sex... that can be intepreted to mean kissing, licking, sucking, rimming, etc, etc.... ANYTHING sexual is going to be included... what sexual activity doesnt include even the least bit of bodily fluid?

i think this is going to turn out to be more political than first appearances.

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Originally posted by Dzinerbear
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Perhaps the state of California should be pouring more money into AIDS research, education, and prevention that instituting draconian laws.

Cheers
Dzinerbear

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Dzinerbear, I would change one thing about your suggestion; I don't know if CA can afford to fund AIDS research at anywhere near the level the Fed's can. So, my recommendation is that The Terminator use his influence to pressure Mr. Bush to take 1/8 the amount used to finance Iraq, and commit those funds to AIDS research. That might start to make up for his father's (and, I mean his biological father) lack of interest.

Again, just my humble (or not so much) opinion.

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Originally posted by Hotpopporn

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This is exactly what Governor Schwarzenegger means when he says that the state makes it as difficult as possible to do business there.

Steve

Maybe they are using this to close down or move some of the less then reputiable companies?

As much as they bitch about us and point fingers, I don't think they are really ready to lose their part of an over $60 billion dollor business.

I think their motives are pure. I think they believe their doing the right thing to protect the actors. But, like most industries and professions, no one wants to be regulated, especially in this case where it seems so closely tied to our civil liberties and sexual freedom.

California politicians need to know how we feel, especially those of us that live and work here. If we can't get through to our legislators, it's going to take a significant financial commitment to take on the State.

You know as much as i am for individuals making their own choices this really has been on the way for many years and im surprised it has taken this long to be put into effect.

What many producers in the straight industry dont realize is that HIV/AIDS is still extremely prevalent in the world today and it isnt just something that only gay men and women catch.

Personally im all for this perhaps we will start to see many of the companies in the straight side of the industry being held accountable for the stupidity that some of them display in the way they operate their businesses.

The health of a companies talent should be one of the first things these companies should be making sure is 100% not only for the protection of the models who are working with each other but also for themselves.

Thankfully most of us working in the gay portion of the adult industry have been doing this for many years and it really isnt going to affect us much.

About time the straight industry started to act responsibly, unfortunately, they didnt make the decision for themselves like many of the gay production companies did so someone made it for them.

Regards,

Lee

i have a female friend who went into straight amateur porn. she tried to go condom-only, but some companies wouldn't hear of it. they wouldn't use her even though she's cute, horny, and loves sex on camera.

some of the companies had even told her if she wanted to use a condom, just let them know - but when she said she wanted to use one, they weren't willing.

so i really do have mixed feelings on this one. i feel that the government getting involved in our sex lives is a dangerous precedent. i really question how these people - obviously independant contractors - were categorized as employees. i feel that is also a dangerous precedent. but i feel that adult entertainers should not be pushed into going no condom when they are not willing.

what a mess!