Friday, July 8, 2011

Porn Panic 2011: The Endless Loop Continues: Could Cal-OSHA Get A Big Hammer From The Cali Assembly?? SB 459 And The "Employees" vs. "Individual Contractors" Question

Don't look now, Clones, but Cal-OSHA may be getting some major support and overwhelming weapons in their battle to force the adult industry to impose condom use.

Mark Kernes over at just posted today on a bill currently before the California Assembly that has already passed the state Senate and is currently in committee hearings that would basically resolve the ongoing battle between declaring adult performers (among others) as either "employees" or "independent contractors" based on their status.

Bear in mind that Cal-OSHA's proposed condom mandate/barrier protection regulations are totally dependent on adult performers being reclassified as "employees" so that they would come under the jurisdiction of their workplace protection laws. Given that, the proposal known as Senate Bill 459 would give them exactly the nuclear bomb they would like to beat the industry down with.

Here's how Mr. Kernes stated it in his article:

At issue is Senate Bill (SB) 459 which, as currently amended, would "prohibit willful misclassification ... of individuals as independent contractors," and "authorize the Labor and Workforce Development Agency to assess specified civil penalties from persons or employers violating the bill."

But according to lobbyist Matt Gray of the Capital Alliance Strategic Advocacy and Public Relations Firm, the bill "adds insult to injury" because "California law never clearly defines what is or is not an employee."

"Instead, California law relies upon a laundry list of employment circumstances, case law, and workplace conditions for each business to then decide for itself whether or not the worker is an employee or contractor," Gray wrote on the Capital Alliance blog. "Does the worker wear a uniform? When they handle money, do they keep it or does it go to the business? Does the worker control his or her own schedule? Is a 1099 issued? The totality of considerations goes on and on, and even state agencies will even disagree with one another on what set of circumstances results in classification as either an employee or contractor."

Adult nightclubs which feature stages upon which dancers strip and accept tips from patrons have been engaged in the "employee vs. contractor" dispute for decades, and decisions on the controversy all over the country have come down on both sides of the issue. But the problem will become central for adult movie producers in the near future, if the California Division of Occupational Safety and Health (CalOSHA) succeeds in expanding the California Health Code to define those involved in making movies (or other content) as "employees" rather than accept many performers' classification of themselves as "independent contractors."

According to SB 459, "willful misclassification" could subject "employers" to civil penalties of not less than $5,000 and not more than $15,000 for each violation, while if various state agencies or the courts find that the "employer" has engaged in or is engaging in a pattern or practice of misclassifying personnel, the penalty goes up to not less than $10,000 and not more than $25,000 for each violation.

"Then, to make matters worse, it [SB 459] set the lowest possible threshold for triggering a violation by relying merely upon 'willful' misclassification by the employer," Gray wrote. "To most people the term 'willful' means an act done of one’s own free will, intentional and voluntarily. As it applies to the law, it simply translates to someone improperly filling out a form—not that they intended to fill out the form improperly, but that they filled out the form and it was done improperly. In other words, guilty intent is not a requirement of a willful act."

So for instance, if SB 459 passes, an adult movie company which shoots a movie using no contract players but as many as 10 freelance performers (five sex scenes with two performers each) could easily find itself liable for $50,000 in civil penalties for paying the performers as independent contractors if CalOSHA decides that they are "employees"—and if the company did that for possibly as few as two movies, the penalties could easily ramp up to $250,000 per movie.

"To make matters worse, SB 459 made no allowance for affirmative defense against a misclassification, such as relying upon the advice of legal counsel, complying with case law, or adhering to industry-wide standards and historical practice," Gray noted. "That would mean 100% of all businesses with any misclassification would then be guilty and have to pay about $15,000 per offense! No exception."
Or, to put it in plain English, if an adult performer attempts to get around the condom mandate by claiming that (s)he is more of an "independent contractor", but CalOSHA rules otherwise, that performer of the company (s)he is employed by could be liable for a hefty fine for each scene they did....and they would have no recourse of appeal.

The goal, obviously, is to force the industry by threat of financial penury to adopt the condom mandate and "barrier protection" standards that CalOSHA (and by proxy, AHF) would love to impose at will.

Of course, supporters of the overall bill cite the notion of protecting "employees" who claim to have been underpaid under the cover of being declared "individual contractors", and adult nightclub/strip club workers have been clamoring for years for changes in the law to allow for the right to be designated as "employees" for the sake of better wage and benefit protections.

The bill is now currently on hold in the Assembly's Judiciary Committee, where representatives for the adult industry are feverishly attempting to include amendments to soften the standards for declaring companies guilty of "willful misclassification". However, given that the bill did pass the Cali State Senate by a large margin, it does appear that unless major and drastic action is taken, this bill will become law and those wanting to force condoms down performers' throats will have a powerful weapon on their side.

Naturally, we'll keep you posted on events as they happen on this.