The biggest threat to porn has never been the religious right. The courts can at least keep them somewhat in check.
This mess? Death by over-regulation.
Rog
Rog Reviews
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My DP 9 - review by Captain Jack| Author | Post |
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| lookyhere Deactivated Again 59 Posts 1/07 |  Posted - Jan 21 2008 : 3:26PMI've only seen it mentioned once on this board by PORNLAW, but why is nobody talking about the recent california court decision that says porn performers ARE "EMPLOYEES" and are covered by workers compensation. Any performer who has ANY injury(anal or vaginal tear, bodily fluid in the eye etc.) can now sue for workers comp coverage, and according to pornlaw, they wont have much trouble. This also means that every company now MUST carry workers comp insurance for performers and report any work related injury or blood borne pathogen exposure to CAL-OHSHA. Failure to report an injury, illness, or exposure in a work site alone can genereate a fine of up to $30,000.00, and if I'm not mistaken, you can recieve a "WHISTLEBLOWER" percentage for turning in companies that fail to report. The end of buissness as usual in porn valley is near. If the ADULT industry wants to be treated like a legitimate industry it is going to have to start acting like one. You can file CAL_OSHA complaints anonomously, and the beautiful thing is you can usually see the blood borne pathogen violations right there on videotape. That means ANBODY, ANYWHERE, can file a complaint, you dont have to be the injured party. I can just see the right wingers now(AMERICAN FAMILY COUSEL etc.) filing hundreds of complaints. [Link] |
| rogrtipe RogReviews.com 1103 Posts 11/99 | Posted - Jan 21 2008 : 3:31PM The biggest threat to porn has never been the religious right. The courts can at least keep them somewhat in check. This mess? Death by over-regulation. Rog Rog Reviews [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 21 2008 : 3:37PM Time for the ADULT insdustry to grow up!!! [Link] |
| blowfish Member 874 Posts 1/08 | Posted - Jan 21 2008 : 3:47PM Another thing is how do they prove they received the injury at work? You would at least need a witness. They basically need someone else to throw away their career along with them. Thats my theory anyway. Can anyone in the industry back me up? [Link] |
| rogrtipe RogReviews.com 1103 Posts 11/99 | Posted - Jan 21 2008 : 3:48PM The vast majority of on-screen talent are not employees. They are independent contractors. Everyone knows this, but they want to kill porn with these ridiculous fines and pointless paperwork traps. What you see as "growing up" is simply the death of most porn. The anti-porn foes have found a way to kill it without the usual objections. It's been growing for a long time and here it is. Unless a more permissive state steps up to free porn from this kind of petty bureaucratic tyranny then virtually all porn production will pack up and leave the States. Maybe I just don't see the upside to destruction by over-regulation. Rog Reviews [Link] |
| Derek117 Senior Member 1605 Posts 1/06 | Posted - Jan 21 2008 : 4:05PM The industry has evaded everything (from lunch hours/breaks to overtime pay to health benefits) by making everyone an "independent contractor." This IS a multi-billion (with a "b") dollar business, and some employee/employer reforms are not going to kill it. Reforms WILL, of course, eat into the huge profits that the company owners make. Bottom line: this may be a moot point since so much of the industry is going internet-based & individual websites. [Link] |
| xxaru Member 128 Posts 6/07 | Posted - Jan 21 2008 : 4:17PM [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 21 2008 : 4:23PM And to ROg, i respectfully disagree, and so do the courts in california about the "independant contracor" issue. That is exactly what the Brooke Ashlwey case settled, and the courts found she was an emplyoee. If you are hired to do a job and someone tells you where to go, when to be there, what to do and how to do it, then you are not an independant contractor. But if a company give a producer or director say 15,000 dollars to make a films, then he might be an independant contracotr, but the people he hires and directs are not. THe fact is, Brooke AShley won her case, and the court determined her to be an employee. Also, if you remember 2004, TTBoy's company was fined by OSHA for failure to report the workplace incident. HE PAID THE FINES!!!!!!!!! And Rog, again you use the term "over-regulation". Why sould porn be exempt from the exact same regulations that EVERY OTHER INDUSTRY must follow? And to the board, I hope this is not being seen as starting a pissy fight. I just htink that this is by far the most important issue the industry faces today, and there seems to be a whole lot of silence form the industry. [Link] |
| rogrtipe RogReviews.com 1103 Posts 11/99 | Posted - Jan 21 2008 : 4:25PM I guess I don't quite understand the overriding "screw the company owners" mentality. It isn't like they are going to eat the loss. They pass it on to us. WE pay for this. Or worse they just stop shooting the stuff we like. Remember, the OSHA memo basically declared ALL non-condom sexual contact as unsafe and against their regulations. So go ahead and cheer the coming of the new anti-porn squads if you like. (That's a general "you" not aimed at anyone in particular) but these people scare the crap out of me. That kind of "reform" I can do without, but that's the Libertarian in me I guess. Rog Rog Reviews [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 21 2008 : 4:35PM Regarding the workers comp rates in california, you can get the legally necessary coverage for about $22 to $32 dollars per scene(two to four participants). Now knowing how low budget most of the compalies are these days maybe that would put them out of buissness. But to say the cost of following these regulaions would be detrimental to any company is just not true. Edited by - lookyhere on 1/21/2008 4:40:28 PM [Link] |
| christianx Senior Member 1883 Posts 9/04 | Posted - Jan 21 2008 : 4:37PM [Link] |
| Porn Scout Deactivated User 3735 Posts 10/02 | Posted - Jan 21 2008 : 4:40PM [Link] |
| rogrtipe RogReviews.com 1103 Posts 11/99 | Posted - Jan 21 2008 : 4:40PM The courts may have found in Brooke's favor, however as someone who has made a living as a 1099 contractor for a NUMBER of years I can tell you that the vast majority of porn talent doesn't qualify. Or at least they DO qualify as IC's. I doubt very seriously that the courts would decide that ALL porn actors, day shooters etc are employees. Or again, that they HAVE to be seen as such. It is to the advantage of employer to pay someone as an IC and given the choice, most will choose this method for obvious reasons. Anyone CAN be paid as an employee, even those who also qualify as an IC.Based on what law? Last time I went over the list of who qualifies for 1099 compensation, there was nothing in it about being told what to do and how to do it. The list had more to do with where someone works most of the time. Since most movie shoots are one time deals, four hours at a time, those hired would fall under the 1099 rules.How is that different? The director is an IC and he (or she) is hiring people for a one-off. I fail to see the difference.Yes, Brooke won her case. I don't think the courts said that all porn actors ARE employees and MUST be treated as such. (As opposed to being ICs) TT got nailed by OSHA and paid the ridiculous fines because he didn't (in their eyes) provide a safe work place. Surely aren't arguing that all porn companies should follow that OSHA letter to the T? If so, then every porn set for the last ten years is in violation and only condom-from-the-start scenes can even be considered safe.I think I just listed why above. What OSHA has declared as unsafe is ALL non-condom sex acts. The fact is, porn isn't like any other business. There are probably many rules and regulations you could list that I would agree should be followed. I'm not arguing for no regulation, but following the OSHA mandates, having to provide the crippling workman's comp, having to provide health care for all players (though this will never fly. How many porn companies would hire an actor or actress with enough hours to qualify for full time "benefits"?), drug testing and other such regulation are harmful to the porn industry and will do little to nothing to bring about change. Perhaps an easier question would be, which regulations do YOU feel should be forced upon the industry and which ones should be ignored?You may be right, though I don't think we feel this way for the same reasons. What is it you are hoping to prevent? HIV spread? Drug abuse? Rapes on set? Sexual harassment? With all due respect, I'm either missing your point horribly or we just disagree on how much regulation is too much. Rog Rog Reviews [Link] |
| rogrtipe RogReviews.com 1103 Posts 11/99 | Posted - Jan 21 2008 : 4:52PM |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 21 2008 : 4:55PM And Rog, thank-you for your response. Wheter we agree or not is not important, that the issue gets discussed in a non confontatiiolnal way is what is imporntant. While porn actors may be considered IC's when it comes to the compensation(getting paid) issue, it does not mean that they are considered IC's when it comes to workplace safety or injury. The Brooke Ashley decision is very far reaching, and from what I can see it does cover ALL performers as employees.(maybe im wrong but i dont think so) [Link] |
| rogrtipe RogReviews.com 1103 Posts 11/99 | Posted - Jan 21 2008 : 5:02PM I'll have to check, but I think someone either qualifies as an IC or he/she doesn't. Part of the employee paycheck goes for all the things that would be required if one is an employee. 1099 players pay that themselves. (Oh do I know that first hand.) Bottom line, I share your concern with the health of the performers. I'm just not so ready to hand the Government the hammer that I believe can be used to beat the industry right out of existence. Hope I'm wrong. Thanks again for your insight. Rog Rog Reviews [Link] |
| Kensington Chapp Senior Citizen Mine is the biggest. 610 Posts 7/07 | Posted - Jan 21 2008 : 5:07PM [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 21 2008 : 5:10PM You said, "THE PERSON I CHARGE' should be accountable. Is that the director, producer, financial backer......? And what happens when 1000 porn workers file workers comp claims? A whole bunch of companies get screwed because they wernt following the law and didnt purchase a 25 dollar insurance policy. The cost of workers comp is nowhere near 'crippling", especially for a Mulit billion(with a b) dollar industry. And Chrisian, i am not anita canibal. [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 21 2008 : 5:18PM If a girl gets injured today on a set, who plays the medical costs? Unfortunately the answer is, the talent themselves. [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 21 2008 : 5:34PM If you test positive for HIV from this place they WILL NOT ISSUE AN INDUSTRY WIDE ALERT. If you test positive from them you can keep those results confidential and not tell anybody. Talent Testing Servie is actually a lab in florida, that gets the specimens directly without the middle man(AIM). It is a for profit entity, and without the middleman it is pure profit for them. NO COUNSELING, NO PRESCRIPTIONS , NO NOTIFICATION TO THE INDUSTRY OF HIV POSITIVES. Sounds like a recipe for disasster. [Link] |
| rogrtipe RogReviews.com 1103 Posts 11/99 | Posted - Jan 21 2008 : 5:39PM I don't know if you own a business here in California or not, but WC costs are crippling. That's why businesses leave the state all the time. The costs are way too high and small businesses get screwed. Which brings me to the simple fact that in this billion dollar industry, many if not most companies are smaller than we might think. Sure Vivid can absorb 25 bucks a scene. (Using your numbers) But how many companies are really as rich as that statement implies? How about this idea? Why don't the performers themselves purchase their own insurance? It's only 25 a scene right? Or the agents? They pay for their tests right? Why can't AIM provide tests and optional workmans comp insurance? Just a thought. Rog Rog Reviews [Link] |
| blowfish Member 874 Posts 1/08 | Posted - Jan 21 2008 : 5:40PM Actors are winning on CAL-OSHA complaints. ie not having insurance. The fastest way possible to drive the industry out of California (or the US for that matter). I suspect very few will win an actual Workmans Comp case. Thats where the proof comes in. Its no longer the studio its the insurance company. Good luck. Studios should pay into the fund if its not to expensive. First of all it absolves them of almost any workplace injury. I did not know Brookes case was already decided. Yes, she is an employee and OSHA fined the hell out of TT. Did she win an actual civil suit yet? [Link] |
| blowfish Member 874 Posts 1/08 | Posted - Jan 21 2008 : 5:45PM [Link] |
| casey1692 New Member 2 Posts 11/06 | Posted - Jan 21 2008 : 6:38PM [Link] |
| Harri Patel Senior Member #SDNY he's all yours. -- Michael Steele 5110 Posts 3/03 | Posted - Jan 21 2008 : 10:22PM [Link] |
| Porn Scout Deactivated User 3735 Posts 10/02 | Posted - Jan 21 2008 : 10:43PM [Link] |
| juha Senior Member 2752 Posts 3/05 | Posted - Jan 21 2008 : 10:52PM [Link] |
| juha Senior Member 2752 Posts 3/05 | Posted - Jan 21 2008 : 10:54PM I think it is only the death of the ultra-rough anal stuff. Edited by - juha on 1/21/2008 10:56:09 PM [Link] |
| Dean Wormer Senior Member Fat, drunk and stupid is no way to go through life, son. 1048 Posts 7/04 | Posted - Jan 21 2008 : 11:49PM [Link] |
| 4theheart Senior Member pornologist 3102 Posts 8/01 | Posted - Jan 21 2008 : 11:56PM http://www.dir.ca.gov/dosh/adultfilmindustry.html Here's an excerpt that may be interesting for discussion: "The Cal/OSHA bloodborne pathogens standard requires employers to protect workers from serious diseases including HIV, hepatitis B and hepatitis C, which can be transmitted through exposure to blood and other potentially infectious materials. The major requirements of this standard include: * Controlling exposures * Personal protective equipment * Hepatitis B vaccine * Confidential medical record * Procedures for exposure incidents * Training Controlling exposures The bloodborne pathogens standard requires employers to use feasible engineering and work practice controls to protect workers from coming into contact with blood or other disease-carrying body fluids (referred to in the standard as "other potentially infectious material", or "OPIM"). Semen and vaginal fluid are always considered OPIM. Any other body fluid is considered OPIM if it’s visibly contaminated with blood. Saliva is considered OPIM in connection with dental procedures because these procedures routinely cause saliva to be contaminated with blood. The kind of contact prohibited by the standard is contact between skin or mucous membranes and blood or OPIM. The methods an employer will use to protect employees from contact with blood or OPIM must be spelled out in detail in a written exposure control plan, which is described in the bloodborne pathogens standard. The bloodborne pathogens standard is built on the rule of universal precautions. This means blood or OPIM is always treated as hazardous, no matter who the source is. This is important because the available testing methods do not always guarantee that disease will be detected. This is particularly true right after a person has become infected. Depending on the test and the disease, it may take anywhere from two weeks to six months to be able to detect an infection. There is also a risk of "false negative" results, particularly if tests have not been properly administered, or if specimens have not been properly stored. Also, many bloodborne diseases are not routinely tested for. Examples of engineering and work practice controls used in the adult film industry include: * Simulation of sex acts using acting, production and post-production techniques * Ejaculation outside the partner's body * Use of barriers, which protect the partner from contact with semen, vaginal fluids, mucous membranes, etc. Examples of barriers include condoms and dental dams (Condoms and dental dams can also be considered personal protective equipment for the partner who uses them) * Plastic and other disposable materials to clean up sets * Sharps containers for disposal of any blades, wires or broken glass. Personal protective equipment If, after using all practical engineering and work practice controls, workers are still exposed to hazards, employers must provide, and ensure employees use, appropriate personal protective equipment. Personal protective equipment can include: * Condoms * Dental dams * Gloves * Eye protection. To learn more about safer sex, click here Note: Cal/OSHA regulations do not require these barriers or personal protective equipment to be visible in the final product, and producers are free to use production and post-production editing techniques to remove them from the image." Edited by - 4theheart on 1/22/2008 12:01:53 AM Edited by - 4theheart on 1/22/2008 12:34:48 AM [Link] |
| pornlaw Member 578 Posts 10/05 | Posted - Jan 22 2008 : 4:00AM The Brooke Ashley case was decided in December and its up on partial appeal. However, I assure you that performers, directors, cameramen, lighting crew -- basically everyone that is on set is an employee. Thats not really a question anymore. I use to represent Warner Bros, Universal and Fox and on the mainstream side this issue is settled and there's no questions that everyone on set needs to be covered by work comp. I even represented the Dodgers and all of the players on the field are covered. This is a harsh reality the industry will soon face. I am moderating a panel at XBiz about it as well as the health and safety of performers in a more general sense. So if you are coming to XBiz please come by and listen. And whether you are in California or not, your state probably has the same laws requiring comp ins. So this might effect you as well in the future. I was also able to bring in one of the largest commercial insurance brokers to give the industry a solution. Lockton Insurance through the Free Speech Coalition is underwriting the industry in regards to work comp as well as a vast array of other insurance products. From what Lockton is telling me a typical boy/girl scene will cost around $22.00 for work comp insurance. So really this is only going to add perhaps $250.00 in costs for each DVD. The benefit of having comp is to tell the state and Cal-OSHA to fuck off and leave the industry alone and NOT to over regulate. No one wants to pay the health costs for injured performers, especially tax payers, but if the industry does provide for the health and safety of its workers through insurance I do believe it will keep those forces off the industry's back. Michael www.adultbizlaw.com [Link] |
| Porn Scout Deactivated User 3735 Posts 10/02 | Posted - Jan 22 2008 : 6:42AM [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 22 2008 : 1:41PM Again i'll ask this question, Why does a large portion of the "ADULT" industry think that they shouldnt have to follow the rules that every other industry has to? AS Pornlaw stated 'no one wansts to pay the healt costs of injured performers". Of course no buissness wants to have to pay these insurance costs but thats just what it is, THE COST OF DOING BUISSNESS. I believe if the health department and OSHA weere fully aware of the health issue in porn, not the 'sanitized' version from AIM, they would be forced to enforce the law.(HPV,HERPES,STAPH INFECTIONS,DRUG ABUSE,ANAL VAGINAL AND THROAT INJURIES,HEPATITIS,just to name a few). And to those who keep saying that it is impossible to PROVE your case, that is just not correct. As Pornlaw will tell you, the cases are usually a slam dunk(for lack of a better legal term) QUESTION FOR pornlaw; Is it to late for Jessica d., miss arroyo etc. to file workers comp claims or, as a lawyer, would you encourage them to five civil suits against any entity, and if so who? Thanks to everyone for keeping this discussion civil. My compliments to the participants here at ADT, as compared to the other much used industry discussion board, where by now this would just be a parade of morons spewing their misoginistic hatred of women in general, and in particular, women they know they could never get(without cash in hand) [Link] |
| tricia_devereaux Evil Angel DVD Patience is a virtue, but who wants to be virtuous? 4283 Posts 4/00 | Posted - Jan 22 2008 : 2:05PM The worker's comp insurance that John carries for his dance show started off reasonably. But John's dance show is very rigorous, and some of the dancers were getting the typical sprained ankles and such. Then a dancer broke her ankle, and another dancer tore a rotator cuff. The premium for the worker's comp insurance skyrocketed. I'm also not so sure about the 'slam dunk' when it comes to proving where someone was exposed to gonorrhea. I do think that there are far too many irresponsible people in this business. However, I fair to see how a person doing several scenes a week can pinpoint where they were exposed to a lesser STD like herpes or gonorrhea which is treatable with medicine. HIV is a different story, because it will be easier to track down patient zero, and therefore to see which set the two people in question worked with each other. Edited by - tricia_devereaux on 1/22/2008 2:05:44 PM [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 22 2008 : 2:32PM In yours and Johns stage show(Fashoinistas, and yes I saw it about 3 months ago, and found it to be a very entertaining evening) you describe some of the injuries the dancers experienced and how it affected your WC rates. For the sake of argument, lets say a girl wearing huge high heels on a porn set(not necessarily your set but that of a much more low budget producion), twists and breaks her ankle while filming a scene? Who would typically, in the adult industry, pay those medical costs? Or if the girl gets a severely torn rectum, who pays for that? From my personal experience in the buissness, most of the time the performer is told TOO BAD, pay it yourself. [Link] |
| tricia_devereaux Evil Angel DVD Patience is a virtue, but who wants to be virtuous? 4283 Posts 4/00 | Posted - Jan 22 2008 : 2:42PM I'm not going to attempt to speak for the entire adult industry here on a fan board. [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 22 2008 : 2:57PM ANd youre not being asked to speak for the entire industry,(how vain) just your opinion of how the given scenareio would play out in the so called "ADULT" industry. Or just take the fifth, if the answwer hurts too much. Free speech when it suits me, silence when it doesnt. [Link] |
| elgringoviejo58 Senior Member 1460 Posts 1/07 | Posted - Jan 22 2008 : 3:00PM [Link] |
| tricia_devereaux Evil Angel DVD Patience is a virtue, but who wants to be virtuous? 4283 Posts 4/00 | Posted - Jan 22 2008 : 3:31PM I'll see you at the XBiz forums. The reason I'm not saying anything specific here is because a personal opinion here is going to be misquoted somewhere else as Evil Angel's company stance on the matter. [Link] |
| elgringoviejo58 Senior Member 1460 Posts 1/07 | Posted - Jan 22 2008 : 3:35PM [Link] |
| Clam Digger Deactivated User Many a man fails as an original thinker simply because his memory is too good. 2268 Posts 1/05 | Posted - Jan 22 2008 : 4:13PM [Link] |
| Clam Digger Deactivated User Many a man fails as an original thinker simply because his memory is too good. 2268 Posts 1/05 | Posted - Jan 22 2008 : 4:27PM [Link] |
| elgringoviejo58 Senior Member 1460 Posts 1/07 | Posted - Jan 22 2008 : 5:11PM [Link] |
| RandomPrecision Senior Member Enjoy! 8175 Posts 3/06 | Posted - Jan 22 2008 : 5:44PM Edited by - randomprecision on 1/22/2008 5:46:50 PM [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 22 2008 : 8:28PM [Link] |
| sgv626 Member I C BOOTIE 293 Posts 11/07 | Posted - Jan 22 2008 : 8:33PM [Link] |
| sgv626 Member I C BOOTIE 293 Posts 11/07 | Posted - Jan 22 2008 : 8:39PM Must the individual take instructions from your management staff regarding when, where, and how work is to be done? Does the individual receive training from your company? Is the success or continuation of your business somewhat dependent on the type of service provided by the individual? Must the individual personally perform the contracted services? Have you hired, supervised, or paid individuals to assist the worker in completing the project stated in the contract? Is there a continuing relationship between your company and the individual? Must the individual work set hours? Is the individual required to work full time at your company? Is the work performed on company premises? Is the individual required to follow a set sequence or routine in the performance of his work? Must the individual give you reports regarding his/her work? Is the individual paid by the hour, week, or month? Do you reimburse the individual for business/travel expenses? Do you supply the individual with needed tools or materials? Have you made a significant investment in facilities used by the individual to perform services? Is the individual free from suffering a loss or realizing a profit based on his work? Does the individual only perform services for your company? Does the individual limit the availability of his services to the general public? Do you have the right to discharge the individual? May the individual terminate his services at any time? [Link] |
| lookyhere Deactivated Again 59 Posts 1/07 | Posted - Jan 22 2008 : 9:22PM [Link] |
| backdoorman Senior Member Shake for me girl... I wanna be your backdoorman ! 2776 Posts 10/07 | Posted - Jan 22 2008 : 9:47PM "Censorship is the first step towards dictatorship !" Honest Ed [Link] |
| pornlaw Member 578 Posts 10/05 | Posted - Jan 23 2008 : 5:48AM As for the types of injuries, I do not see performers flocking to file claims for SDTs that can be treated and cured. It would be the same as an secretary filing a claim for the flu she got from her co-worker. Work Comp is for injuries that are not acute but chronic. Yes performers do get injured but they usually try to go back to performing as soon as possible. We have handled several solid car accident cases for performers but because they refused to follow up on the treatment recommended by their doctor, we couldn't settle their cases for nearly what it could have been worth. If a performer is not willing to at least go to receive treatment for serious car accident case, I don't see them trying to live off of what they would receive in disability. It isn't much. I do see this issue being important to the studios as well as the performers. What most don't realize is that if a performer is an independent contractor that doesn't mean they assume the risk of injury. It actually means they can file a lawsuit in civil court as opposed to being limited to work comp and the WCAB. As an employer you would much rather have your work comp insurance cover an injury as opposed to dealing with the litigation and possible jury award in a civil case. Work Comp protects the employer as much as it protects the employee. Michael www.adultbizlaw.com [Link] |
| Porn Scout Deactivated User 3735 Posts 10/02 | Posted - Jan 23 2008 : 7:40AM [Link] |
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