Liz Carey wrote an interesting piece on this site Friday showing that, while the state of California regulates the porn industry, there is little actual enforcementof workplace safety laws currently in place. Given recent court decisions in the state, the adult video industry could be a good microcosm in the study of benefits afforded employers by workers' compensation coverage.
The porn industry is already a strong outlier in the world of legal reasoning. Generally, in this nation, if a man or woman accepts cash in exchange for performing a sexual act with another person, it is called prostitution and is illegal. However, if they put a camera in the room it becomes art and is considered protected under the first amendment. So, in other words, accepting payment for sexual acts is illegal unless we all get to watch.
In my view, there are two primary factors that pose tremendous risks for the California porn industry that will give us something (else) to look at. First, it is believed that the vast majority of production houses in the state do not follow the mandated rule that protective gear be worn on the job. Second, the recent Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles strongly challenges the independent contractor status used by many adult video production companies in the state.
Adopted a standard that presumes that all workers are employees instead of contractors. The burden is now on any entity classifying an individual as an independent contractor. Under the newly adopted ‘ABC test,' a worker is an independent contractor to whom a wage order does not apply only if the hiring entity establishes all of the following:
(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring entity's business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
Clearly the first two tenets of this test are a challenge for the California porn industry. Only the third point, (C), would likely apply for the workers in this industry.
So firstly, in an industry that has treated its workers as independent contractors, what is the potential liability should a worker contract an STD or other disease in a shop that fails to follow rules pertaining to safety equipment?
And if an adult performer is found not to be an independent contractor and therefore is entitled to workers' compensation, would that ultimately provide better protection for the otherwise negligent employer?
A lot of small and midsize employers do not appreciate the protections that workers' compensation affords. They often view comp as a nuisance expense that they are required by law to provide. The challenges in this area within the adult entertainment industry could serve as a broader lesson for us all.
Of course, Ms. Carey aptly pointed out in her Friday article a multitude of challenges facing that industry. The entire sector is in transition, and it is possible that comp and liability over safety regs are far from their radar. It is also possible that extreme negligence suits could still arise while under workers' comp protections, but that would be far less likely. Still, it is a unique industry that offers potential lessons for us all.
Appreciating the protections for employers that workers' compensation affords and comprehending the risks outside of that world is important. We should all understand and appreciate that, or adult entertainment performers won't be the only ones who are potentially screwed.
Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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Bob is an accomplished speaker for the workers' compensation industry. He is available for conferences, corporate events, children's birthday parties and Bar Mitzvahs. You may access his Speakers Brief here.