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The Condoms are Coming

The Condoms are Coming

August 24, 2011
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" Once approved and adopted in California, the new porn regs will eventually be adopted by other states, the adult attorney said. "

With words similar to those, Paul Revere ushered in a revolution that transformed the face of a nation. Similarly, on June 7, Cal/OSHA changed the shape of this industry’s future which might ultimately lead to a revolution in adult entertainment. I was able to attend the meeting and even tweeted the discussions from the meeting live via my Twitter account. As it has been reported, the turnout was strong with numerous industry people in attendance representing all aspects of the industry.

What was quite clear from the meeting was the absolute distrust the industry has for those on the Cal/OSHA Board that have drafted the proposed regulations. There were statements made during the meeting that Cal/OSHA was attempting to regulate the industry out of existence for moralistic and religious reasons or perhaps that the AIDS Healthcare Foundation, the Pink Cross Foundation and Cal/OSHA were in some way working together to drive the industry out of California.

I can certainly understand how many in the industry may feel this to be true, from my experience dealing with Cal/OSHA and state safety regulations, that is simply not the case. Cal/OSHA is attempting to bring this industry in line with numerous other industries that are regulated in regards to employee safety. Cal/OSHA actually feels that the proposed regulations are less intrusive and harsh than the current regulations. While the new regulations proposed by Cal/OSHA are yet to become law and may not for another year, it was clear from their meeting that condoms and other barrier protection methods are now required and are currently the law in porn.

Under the proposed regulations, barrier protection and condoms may not have to be utilized for oral sex scenes when certain requirements are met by the producers and talent. However, other than that one issue, barrier protection and exposure issues will change how adult entertainment is produced and consumed.

Unfortunately due to the heated nature of the meeting, not all issues could be covered and there are still numerous discussions that are necessary as to the most basic issues such as how to dispose of the used barriers, how to handle clothing used on set, record keeping requirements and employee training issues. This article will focus on the proposed regulations and want it means to producers and talent.

INDEPENDENT CONTRACTORS OR EMPLOYEES ?

One of the first issues to be raised during the meeting was that the proposed regulations only apply to employees and not independent contractors. Numerous performers and producers spoke up and attempted to declare themselves independent contractors and thus not bound by the regulations. Cal/OSHA did not directly address the IC vs. EE issue and merely referred the audience to the California Labor Code and existing case law.

Rest assured that for purposes of the proposed regulations, performers are indeed employees, even if only for a day, of the hiring studio. However, under the tax code, many of those same performers may actually be independent contractors. There are two different legal tests to determine employee status under the California Labor Code and the U.S. Tax Code. According to the Department of Industrial Relations of the state of California, the California Supreme Court has adopted the “economic realities test” as noted in S. G. Borello & Sons, Inc. vs. Dept. of Industrial Relations (1989) 48 Cal.3d 341. The economic realities test sets forth several factors for determining whether someone is an independent contractor or employee:

    • Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
    • Whether or not the work is a part of the regular business of the principal or alleged employer;
    • Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
    • The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
    • Whether the service rendered requires a special skill;
    • The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
    • The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
    • The length of time for which the services are to be performed;
    • The degree of permanence of the working relationship;
    • The method of payment, whether by time or by the job; and,
    • Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Even where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary. (Yellow Cab Cooperative vs. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288).

There is little doubt that a performer would be determined to be an employee under the above noted tests. Several studios have already been fined by Cal/OSHA and to this author’s knowledge none have been overturned on appeal. Most recently, Hustler Video was fined over $14,000 by Cal/OSHA for the lack of barrier protection on set, lack of a blood borne pathogen plan as well as other infractions. According to an article on XBIZ.com on April, 5, 2011, Hustler plans on appealing its fine. However, there has been no recent news as to that particular case.

The only potential exception this author can see to the regulations is when performers coproduce a scene and trade content with each other. As long as there is no monetary compensation offered as payment for services, then more than likely, Cal/OSHA would not determine that a content trade situation to be employment.

Getting past the IC vs. EE argument, what does this mean for the industry and how will the proposed regulations effect content production in California on a daily basis?

Condoms for blow-jobs? First, the proposed regulations require condoms and/or barrier protection (dental dams) for all sex scenes where there is a possibility of an exposure by a performer to the bodily fluids of another performer. The only exception to this has been carved out for mainstream studios in so much that saliva has not been classified as a bodily fluid. The reason for this exception is probably apparent to everyone except Cal/OSHA.

The only exception to the condom/barrier rule is for oral sex scenes and only when both performers have a clean DNA PCR HIV test as well as clean gonorrhea and chlamydia test results within 14 days of the scene and have both been completely vaccinated for Hepatitis B and HPV.

It should be noted that the proposed regulations call for urine testing as well as throat and anal swabbing for gonorrhea and chlamydia for both male and female performers. It should also be noted that it takes a series of three injections over the course of six months for someone to be fully vaccinated for hepatitis B. Therefore, all performers should immediately seek hepatitis B vaccinations so as to insure they can continue to work once the proposed regulations actually take effect.

If a performer is not properly vaccinated or does not have a clean test, then condoms/barrier protection must be used at all times.

No more facials? The next question is — what about the money shot? According to the proposed regulations ejaculate cannot be placed into any orifice and or on any non-intact skin. In layman’s terms, cream pies, facials and/or swallowing will no longer be allowed. Ejaculate can only make contact with intact unbroken skin found on a performer’s breasts/chest, back, legs and feet. Obviously, any producer is still free to use non-harmful fake ejaculate to simulate real cum or squirting.

If for some reason, real human ejaculate or bodily fluids other than saliva does find its way onto broken skin and or an orifice — that would be considered an “exposure” and immediate medical attention must be provided and documented by the employer. Further, the employer must provide post exposure testing and all results recorded in accordance with Title 8 of the California Code of Regulations Division 1, Chapter 7.

Now that AIM is gone what’s next? So who’s going to be paying for all this testing, vaccinations, record keeping and medical treatment because of wayward money shots? According to the proposed regulations, all medical testing fees, treatment and record keeping requirements must be paid for by the producers and studios. Which producer, well that answer wasn’t so clear according to Cal/OSHA.

Basically, Cal/OSHA’s position is that the employers (studios and producers) can ban together to create cooperatives to negotiate with medical care providers and testing centers to bargain for the best price and therefore it will even out over the long run. Cal/OSHA assumes that all producers and studios will be “piggybacking” off each other’s tests. Further, these new additional costs cannot be passed on to the performers or talent agents. It is solely the responsibility of the employer to pay for these costs. On the bright side for the studios and producers, they will now be able to dictate exactly where talent will receive their testing from.

The condom police? So how is Cal/OSHA going to enforce these new regulations once they go into effect? Are they going to be sending Cal/OSHA’s cops in lab coats and environmentally friendly smart cars in droves to Porn Valley to peak in on everyone? The answer might be yes.

According to Cal/OSHA, enforcement will occur in two ways. The first and most obvious is because of an employee (performer) calling into Cal/OSHA’s offices and reporting a violation of the regulations. This alert will mandate an investigation by their offices. They literally have no choice and must open an investigation and look into the performer’s complaint. Thus, that is the easiest and quickest way to get Cal/OSHA knocking on your door. Be aware that a complaint by a performer can be made anonymously as well.

The second is what the Cal/OSHA Board referred to as a sweep. It is possible that they will send out a contingent of inspectors on a regular basis to do spot checks on studios and producers. At least the ones they can locate. In my previous experience I have seen Cal/OSHA perform “sweeps” on rare occasion and do not think that will be a likely occurrence. However, it may occur once the proposed regulations take effect just as a gentle reminder that compliance is mandatory.

You may be asking how can Cal/OSHA determine the difference between a disgruntled performer from a competitor or even a group such as AIDS Healthcare Foundation making an anonymous report. I don’t know how they can but Amy Martin from Cal/OSHA did indicate that they have been dealing with this very issue with other industries and have developed the ability to determine the difference. It should be noted that only a complaint from an actual performer mandates an investigation. All other complaints do not require an investigation and Cal/OSHA has the discretion to take no action on a report of a violation.

Vegas baby, Vegas! Finally, one last point that has been overlooked by other writers, is there a threat of federal regulation. Cal/OSHA made it very clear that before their proposed regulations can go into effect they must first be approved by the federal OSHA. Which means that, once approved by federal OSHA, these same regulations can be adopted by any other state. In essence, the discussions and the debate, the industry is currently having are extremely important since we may not get another chance to debate these issues.

It is this author’s opinion that once approved and adopted in California, these regulations will eventually be adopted and approved by other states. I would not be surprised to see a push for states such as Nevada, Florida and Arizona to pass similar legislation.

Viva la revolucion! The proposed regulations are over 17 pages long and are quite involved. I have only been able to touch briefly on some of the more important aspects of the proposed regulations. I strongly suggest that everyone read and digest the regulations and try to understand what they will mean to the future of not only California adult entertainment but in general the industry in the U.S.

Will these regulations cause the industry to pack it’s collective bags and find greener pastures elsewhere? Will it cause it to revert back to the pre-Freeman underground days of lore or will it simply cause the studios to treat the performers better and adopt the practices outlined? At this point, no one knows. Whichever it may be, certainly there is a revolution afoot.

Michael W. Fattorosi aka PornLaw is an attorney an owner of Fattorosi & Associates P.C. located in Woodland Hills, CA. He can be reached via email at Michael@fattlegal.com or follow him on Twitter at www.twitter.com/pornlaw.


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