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View Full Version : Cal_OSHA called on to regulate 'Porn Industry'



Melonie
06-13-2009, 06:55 AM
While this latest development is focused on the 'Porn Industry', it actually deals with a potentiality which could profoundly affect California dancers as well as porn actors.


(snip)""This industry screams for regulation," said Michael Weinstein, president of the Los Angeles-based AIDS Healthcare Foundation. "Cal-OSHA needs to require that condoms be used in any film. Yesterday."

The positive HIV test has concerned health officials and AIDS activists because the Valley is one of the leading producers of pornography in the world, with about 200 production companies that employ about 1,200 people who work as adult performers, and about 5,000 others. With some of the nation's largest pornography producers based in the Valley, any disease has the potential to spread quickly.

The 16 unpublicized HIV cases were not investigated by county public health officials, partly because privacy rules before 2006 prevented the disclosure of the names of HIV-infected individuals to government agencies. Because no government investigation of those cases took place, it is unclear whether those performers contracted HIV at work or elsewhere.

County officials were able to investigate the HIV outbreak in 2004 because AIM disclosed the names of the infected performers to the public. In that outbreak, Darren James, a well-known porn star, infected three actresses he had worked with before learning that he was HIV-positive. Another unrelated performer also tested positive. The cases spurred a series of public hearings, but legislation to force safer practices quietly expired without a vote.

No state laws specifically require condom use and the vast majority of heterosexual porn movies are shot "bareback," an industry term for unprotected sex.

State labor codes, however, do require use of personal protective equipment and protection against blood or bodily fluids in the workplace. Since 2004, five adult entertainment companies have been cited for a variety of violations. Each case has been settled, state officials said."(snip)



(snip)"Dr. Jonathan Fielding, health officer for Los Angeles County, said Wednesday that his office was launching an investigation.

Officials from the state Division of Occupational Safety and Health also said they will look into the circumstances of the case *

"You wouldn't send someone to work on a high-rise building without a hard-hat, so why are we allowing these performers to perform without condoms?" Fielding said.

Deborah Gold, a senior safety engineer with the state Occupational Safety and Health Division, said her agency repeatedly had attempted to crack down on unsafe workplaces in the adult entertainment industry, issuing several citations against employers"(snip)

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While reducing the transmission of HIV by 'workers' in the porn industy is an important issue, the 'unintended consequences' of doing so extend far beyond the prevention of disease. To begin with Cal_OSHA is speaking in terms of 'EMPLOYEE Workplace Safety' and citations being written to 'EMPLOYERS'. The California courts and Dep't of Labor have already issued rulings that porn actors, as well as exotic dancers, are to be considered as 'statutory employees' on a case by case basis. A state-wide call to empower Cal_OSHA to enforce existing workplace safety rules throughout the 'adult entertainment' industry would immediately leap beyond case by case enforcement to statewide enforcement.

With the state of California being in desparate straits in regard to state budget deficits, and with this recent outbreak of HIV positives as justification, it is a virtual certainty that a new law will pass the Cal legislature granting the Cal_DOL full authority to 'regulate' adult businesses. You can also bet that the Cal Franchise Tax Board ( and thus the IRS ) are lining up to follow Cal_OSHA / Cal DOL into 'adult businesses' ! And you can also be sure that the definition of 'adult businesses' will include strip clubs, massage etc. as well as film sets !

IMHO this new California bill is directly following in the footsteps of the New York dancer 'permit' bill, with the same sort of justification being stated i.e. protecting 'workers' in the adult entertainment industry from (supposedly) elevated risk of exploitation. California's ability to point out this HIV positive outbreak is actually a much easier 'sell' than New York's grasping for more tenuous evils i.e. UN human trafficking studies. But the true 'stealth' objective is ultimately the same ... to provide state state gov't with the authority to regulate, document, and tax 'adult businesses' and their 'employees'.

Kylea2
06-13-2009, 09:46 AM
I think AIM is a great organization, but I also think it would be good to see performers tested even more often than they already are. The fact is though that there will always be irresponsible people in ANY industry, and in the porn industry it only takes 1 performer having sex with someone outside the industry who is positive to bring it into the industry.

People don't seem to realize how serious some of these diseases are! They don't see people walking around with things like HIV every day so they don't realize how much it deteriorates the body. Personally, I think making condoms a legal requirement would be great - but it simply wouldn't sell as well. The alternative though is showing people/performers how bad HIV/AIDS and other diseases are so people are scared of having sex with anyone who isn't tested regularly.

Its interesting if you think about it though that working in the porn industry may actually be safer than sexual activities among people in public. I mean there's always people that meet at bars, clubs, etc that have one night stands and such unprotected... and they don't know squat about the other person. I'd like to see the government publish the numbers of how many people OUTSIDE the industry contract sexually transmitted diseases each year - because I would wager to guess that the number is higher in the general public for things like HIV/AIDS than it is in the porn industry. Yet we don't see the government trying to make unprotected sex among the general public illegal.

I really think it just comes down to educating people better and the performers making the decision to require that a condom be used... even if that means less work.

CKXXX
06-13-2009, 02:46 PM
Well...we'd have to get tested every day several times a day to fix that and thats not feasible.

And yeah...HIV is WAYYYYYYYYYYY higher in the general population. About a dozen people in the straight porn world have tested pos. over the past decade. How many tested pos. outside?

Melonie
06-13-2009, 06:12 PM
^^^ all true ... but don't allow yourselves to be sidetracked by the HIV issue. The much LARGER issue is the state of California using HIV as justification for sinking its regulatory tentacles deeply into the adult entertainment industry ... which includes both adult film studios and strip clubs !

CKXXX
06-14-2009, 08:51 AM
^^^ all true ... but don't allow yourselves to be sidetracked by the HIV issue. The much LARGER issue is the state of California using HIV as justification for sinking its regulatory tentacles deeply into the adult entertainment industry ... which includes both adult film studios and strip clubs !
Yep. But I'm not really afraid of that honestly. It sucks for west coast based people more then me. Already so many studios are moving to FL because Cali is becoming too difficult to work with. That works out well for me though since I wont have to fly across the country so much.

But it sets a dangerous precedent.

pornlaw
06-15-2009, 07:00 AM
Cal-OSHA has already imposed fines against several production companies over the past several years. This is nothing new in my industry. The problem with the newest outbreak will be the push to make porn condom only.

There are First Amendment considerations to performing sans condom, but overall, this push to regulate the industry in California has been on-going for the past 5 years -- ever since the outbreak in 2004.

I have traveled with the FSC to Sacramento for the past several years to meet with legislators and their staff and this issue has come up frequently.

The state of California wants performers treated as employees and they want them covered by workers compensation insurance as well as health benefits. Basically they just dont want them on the state's health care system.

I have lectured frequently on this issue and just wrote an article for www.XBiz.com on the issue of injuries on set. If performers are not treated as employees after this outbreak, I see regulation being imposed and it will effect other states like Florida, where it isnt even legal to produce content.

Kylea2
06-15-2009, 08:31 AM
^^^ The fact that filming porn isn't legal in so many states and yet so many small production companies are in those states... and the government does nothing about it - should tell the government that trying to regulate more would just be a joke. If the government actually shut down porn production companies in places where they aren't legal people might be more likely to take the government seriously.

Melonie
06-15-2009, 12:01 PM
The state of California wants performers treated as employees and they want them covered by workers compensation insurance as well as health benefits. Basically they just dont want them on the state's health care system.

All true - and for exotic dancers as well as porn actors. But the state also wants 'employee' dancer/actor earnings documented through the club's/studio's 'employee' payroll system, and they want to collect every possible dollar of state income taxes due on those earnings.

Kylea2
06-15-2009, 03:18 PM
^^^ That's where I have trouble with it. If I wanted to be treated like a regular employee I would be working a regular job!

pornlaw
06-16-2009, 07:15 AM
All true - and for exotic dancers as well as porn actors. But the state also wants 'employee' dancer/actor earnings documented through the club's/studio's 'employee' payroll system, and they want to collect every possible dollar of state income taxes due on those earnings.

100% true since most states, and especially California are in budget shortfalls. In California the legal definition of employee is very broad and the legal definition of independent contractor is very narrow. It is almost impossible to be considered an independent contractor in California, especially for work comp issues.


The fact that filming porn isn't legal in so many states and yet so many small production companies are in those states... and the government does nothing about it - should tell the government that trying to regulate more would just be a joke. If the government actually shut down porn production companies in places where they aren't legal people might be more likely to take the government seriously.

California knows that regulating the industry with a mandatory condom law will either drive it underground or out of state. In the four years that I have lobbied on the behalf of the industry and I have met with more than half of the legislators in California, not one wanted the industry regulated out of existence. There is too much at stake. We are a $3-4 billion industry in California. The state cannot afford to lose what taxes we do pay. Especially with a state like Nevada right next door.


That's where I have trouble with it. If I wanted to be treated like a regular employee I would be working a regular job!

That unfortunately really isnt your choice.

Kylea2
06-16-2009, 04:08 PM
That unfortunately really isnt your choice.

Actually I would say it is. Right now when a dancer walks into a club if she knows she'll be an employee (by the paperwork required) she can turn and walk away. Creating laws that will treat all dancers as employees will do the same thing you are arguing above - they will either go underground and do things illegally at private parties/venues, get licensed as escorts/private dancers and only provide dances (still responsible for their own taxes), or seek out other work.

pornlaw
06-16-2009, 09:58 PM
Correct it is your choice to work or not to work... but you and an employer cannot determine by way of a private agreement that you are an independent contract ... at least in the state of California. And there are several standards used... one by the California court system, one by the IRS and one by regulatory agencies here in California and all of them are not always in agreement as to the definition...

This is still an area of the law that is constantly changing and evolving.

Kylea2
06-16-2009, 10:05 PM
^^^ I never said that, so you must have mis-understood. Trust me, I understand the laws relating to employee vs. independent contractor status.