XBIZ Hollywood: Seminar Addresses Healthcare, Worker’s Comp

HOLLYWOOD, Calif. — In a panel discussion that was nothing less than groundbreaking, industry members addressed healthcare, worker’s compensation and on-set liability issues, as well as what director and XBIZ columnist Ira Levine called “legal entanglements we might be involved in, in the future.”

The seminar was moderated by industry attorney Michael Fattorosi, with Levine, Adult Industry Medical Healthcare (AIM) founder Dr. Sharon Mitchell, Free Speech Coalition board chair and attorney Jeffrey Douglas, performer Nina Hartley and Lockton Insurance Brokers representative Alan Stearns on the panel.

Douglas, a 1st Amendment attorney who usually speaks on topics related to obscenity issues and 18 U.S.C. 2257 compliance, pointed out that the Federal government has had extremely limited success in pursuing obscenity and record-keeping charges against adult producers.

However, Douglas said, in regards to worker’s safety issues, worker’s comp and Cal-OSHA regulations; there is an opportunity for authorities to create a regulatory environment so restrictive that it would effectively prohibit many of the on-set activities necessary to the production of adult video.

“We’re at the very beginning of resolving these issues,” Douglas said, referring to recent on-set investigations by Cal-OSHA and the possibility of involvement by the Los Angeles County Department of Public Health (LACDPH), as well as other public health agencies.

Several panel members pointed out a recently issued report by LACDPH Director of STD Programs Peter Kerndt that called for both state and federal regulation of the adult industry.

Mitchell, who established the current industry health protocol for documentation of HIV/STD testing for performers, told the audience that she has watched the changes in the landscape of interaction between county health officials and AIM occur over the last several years. She predicted the situation concerning healthcare regulation might “come to a head this year.”

“We’ve tried working with them many, many times,” Mitchell said, explaining that AIM is required to supply the LACDPH with statistical information.

However, she said, non-industry health officials have little understanding of what video productions require in terms of performers potentially exposure to STDs, or the realities involved with healthcare specific to the performer population.

Mitchell indicated that the relationship with public health authorities is somewhat adversarial, and said, “If we worked together, we could find a solution. But they want to create a standardized solution and put a condom on everything.”

She also pointed out the success rate of AIM at having largely prevented HIV/AIDS infection from affecting the active performer population, but felt that if state governmental agencies were to take over health and safety regulation for the industry, that it might force many producers to move their companies out-of-state or overseas, where overseeing the performer population would be difficult if not impossible.

Hartley talked about the ongoing controversy between performers being considered as independent contractors or employees. She pointed out that she would prefer to be considered an independent contractor based on the fact that as an “employee” under state law, she would be prohibited from asking another performer to declare their HIV status prior to performing in a scene together. It would also be illegal for employers to ask performers to voluntarily take an HIV/STD test. Legally, employers would also be unable to discriminate against employees, based on their HIV/AIDS status.

Stearns, speaking on behalf of Lockton Insurance Brokers, which recently forged an alliance with the FSC, told attendees that acquiring worker’s comp insurance for permanent and temporary employees was the best way to protect themselves against lawsuits resulting from on-set injuries.

“The industry has grown into true corporations,” Stearns explained and, as such, will eventually need to negotiate a system of better practices.

He also pointed out that many mainstream industries struggle with the classifications of independent contractors versus employees, and that the adult industry was very similar to the construction industry in that respect. Stearns explained that construction industry members met with Cal-OSHA regulatory officials to decide a viable system of requirements for on-the-job safety protocols.

He said also that, as of now, adult performers are considered to be in the same category as mainstream actors in terms of classification for insurance, and that on-set sexual activities might be considered much safer than working with power tools or construction equipment, in terms of potential risk.

He gave a ratio, as to cost of worker’s compensation insurance and estimated that it might be equivalent to one percent of a performer’s fee — in other words, if a performer were paid $1,000 for a scene, the worker’s compensation insurance for that performer would be $10.

Mitchell also urged producers to supply performers with access to a workplace safety manual; typically provided by the human resource director/department in other industries, but often overlooked in adult.

She also recommended each production company to create a manual of procedures outlining safety practices in the event of on-set accidents or injuries, and Stearns pointed out that resources for creating manuals was available either through most insurance companies or on the Cal-OSHA website.

Levine warned of potential political involvement, especially during an election year when the country would be anticipating the start of a new administration, and made an interesting point; that while the adult industry has been beleaguered during the Bush administration by right-wing religious groups that argue against pornography based on morality — that a greater danger might be posed by so-called “liberal” do-gooders that have no problems with morality issues, but might gladly sacrifice 1st Amendment rights in order to legislate restrictions they perceive as protecting the performers.

The panel members all urged industry self-regulation to help diffuse any potential regulation legislated by outside agencies or the government.