The Employee vs. Independent Contractor Debate

“Are adult performers in the entertainment industry considered employees or independent contractors?

Considering I’m an Accountant this doesn’t seem like the hardest question on earth, but finding an “official” answer to this question is difficult, to say the least. But, it’s not impossible. The largest issue I have with this debate is that I could make a very compelling argument to justify either classification. This basically means that I would be very beneficial during an audit, but it doesn’t necessarily answer the ultimate question: Are adult film performers working for an independent production company considered employees or independent contractors DURING AN OFFICIAL AUDIT?

I already know what my professional opinion would be, but that’s exactly what it would be nothing more than an educated guess or an opinion I’m willing to fight for during an audit. In the course of everyday business, the distinction is pretty clear and takes all of a few seconds to determine. But, everything becomes slightly more complicated when it comes to specific performers within the various sectors of the entertainment industry.

Unfortunately, I have the pleasure of dealing with the IRS on a pretty regular basis. So, obviously, I called them to see if I could get a definite answer based on the specific criteria of the normal adult performer working for a normal production company. It’s not like the relationship between adult performers working for adult film production companies is really all that unique. Contract adult performers are easy. The one or two day performer classification is what I wanted to find out.

I could just reasonably assume it works the exact same way as the mainstream film industry. But, from personal experience, mainstream performers are generally classified as employees on the state level as well as on the federal level UNLESS they elect to be a “Loan Out” performer which is somewhat similar to an “Independent Contractor,” but not exactly and only applies on the federal level. You still remain an employee on the state level. This doesn’t seem to be how the adult industry operates.

As I expected, I waited on hold for 18 minutes until I finally got to speak with an IRS agent. After I finished speaking with the agent while banging my head on the desk the only answer I got was that the IRS does not give out official decisions regarding classification of workers without specific details for each case. I still don’t quite know why I even bothered to call considering I already knew the exact answer they were going to give me? Oh well, at least I tried…

Just for the record, there IS a way to get an official determination from the IRS whether you are considered an “employee” or an “independent contractor” for IRS purposes. There is actually an official form known as IRS FORM SS-8 which you simply fill-out and mail to the IRS. Of course, we are dealing with the government here so it generally takes up to 4 months to get an official determination. But, knowing whether you are an “employee” vs. “Independent Contractor” (aka a 1099) is important for a variety of reasons, but mainly when it comes to payroll taxes.

I must mention that the most insanely annoying part within this whole discussion is that the IRS decision doesn’t even determine your classification with the State Departments. So, technically, the IRS could classify you as an “Independent Contractor” for tax purposes while the State Department could then classify you as an “employee” in regards to official State labor laws and/or health & safety standards.

I guess since I can’t give you a definite answer at the moment (or for the next 4 months until the IRS finally decides to answer one fucking question regarding the correct worker classification of adult industry performers) then I’ll just explain a little about how it usually works in the mainstream industry:

There are ONLY 2 federal classification options:
1. Employee
2. “Loan Out” Employee (similar to certain independent contractors)

Once you have been hired for one (or multiple) scenes as a “performer” you will be automatically classified as an employee. During the paperwork process, the payroll dept. will ask if you elect to be a “Loan Out” on the film?

Here is a brief summary on “Loan Out Corporations” and how they work:

A “Loan Out Corporation” is set up as a completely separate and legal entity usually for an actor, performer, recording artist or other individuals in the entertainment industries for the purpose of using the “Loan Out Corporation’s” Corporate legal protection and Tax benefits. (This method is almost always recommended for high-earners, but can generally be used by anyone.)

A performer decides to start up a Corporation to be used as his own “Loan Out Corporation”.  This is almost always either a C-Corporation or an S-Corporation with its’ own unique tax ID#.  Articles of Incorporation must be provided to the production company along with proof that the Corporation is in good standing with the State.

-Individual social security numbers are not allowed.

-Sole proprietorships, Single-member LLC’s, multiple-member LLC’s and Partnerships are generally not allowed.
(It should be noted that I have seen a few non-SAG/AFTRA, low-budget productions who have allowed single-member LLC entities with a separate Tax ID# to be used.)

-The production company contacts the performer’s agent or the performer directly who accepts the job through their “Loan Out Corporation.”

-At this point, the production company has hired the “Loan Out Corporation” for the scene NOT the individual performer.  The “Loan Out Corporation” then LOANS OUT the services of their “employee,” aka the performer. So, essentially the production company now has an employee which they have “borrowed” from the “Loan Out Corporation.”

-The full payment for services gets paid directly to the “Loan Out Corporation” who then pays their “employee” aka the performer for his services. No payroll withholding taxes are withheld from the check.

-The “Loan Out Corporation” is therefore responsible for paying all payroll taxes.

At Year-End:
1. The “Loan Out Corporation” will receive a FORM 1099 from the Production Company.
2. The “employee” aka the performer will receive a FORM W-2 directly from the “Loan Out Corporation.”

*I would also like to add that if any performer or producer decides to file FORM SS-8 to get an official determination from the IRS, please let me know the final outcome. Thanks.*


86220cookie-checkThe Employee vs. Independent Contractor Debate

The Employee vs. Independent Contractor Debate

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41 Responses

  1. Great post, but perhaps not entirely relevant considering Cal/OSHA’s stand as to what constitutes and employee. Your points may be beneficial from a tax standpoint to some, but don’t change the liability that the proposed regulations put on the production companies.

    Further, I suspect that some performers are intentionally under reporting income or otherwise accepting “cash with receipt” type payments for work, hoping that the amount never ends up linked back to their SSID numbers or similar. Their desire to go legit to lower their tax burden may be pretty low.

  2. @rawalex –
    Holy shit, did you just give me a semi-compliment?

    Of course most of my posts are going to be slanted toward taxes. I’m an accountant. But, there really are very few things on earth that don’t revolve around taxes and money.

    Which is why my post is extremely relevant. One of the main reasons for the post was to show how worker classifications can be so different when dealing with certain agencies on the state and federal level. Even the Cal-OSHA worker classifications for who is considered an “employee” are not very straightforward….

    You may remember that right after the Cal-OSHA guidelines were released, there were performers as well as producers saying that the Cal-OSHA rules were only for “employees” and wouldn’t apply to them as “Independent Contractors.”

    This post was just my small attempt to explain that even though you may get paid as an “Independent Contractor” on the federal level, you may actually be considered an “employee” on the state level which means the Cal-OSHA regulations would apply.

    And, then I just threw in some tax stuff to be an asshole and to make it even more complicated… 😉

  3. “Their desire to go legit to lower their tax burden may be pretty low.”

    This issue happens in most industries. Especially dealing with businesses where “tips” are involved. The worker ultimately takes the risk and will then have to deal with the consequences if they ever get caught.

    Obviously, it’s pretty hard to police cash transactions. Plus, the only way they could get caught would be in an audit. Especially if the person paying them decides to deduct the payments on their tax return, which would then lead the auditor to the person who has been accepting those payments.

  4. @Lacey: how you deal with all this crap on a daily basis without losing your mind is astounding…..

  5. I like this Lacey great job. if I am Steve Hirsch or Steve Orenstein or Derek Hay I am reading that and taking notes….Its probably beyond most talent but company owners should certainly be reading it.

  6. @Mike –

    Seriously?? I actually wrote this with the performers in mind… 🙁

    But, I guess it could be insightful to the company owners as well… 🙂

  7. Alex’s point re: how Cal/OSHA views performers is far more relevant to current events within the industry. That’s already been well established (in court), performers are employees.

    Their status for state or federal taxes may be different, but has little or no bearing regarding who is responsible for paying for testing, etc.

  8. It’s a compliment only that you seem more focused here, perhaps stuff you are more familiar with, i guess.

    Anyway, one very important point here is that most porn people don’t make enough money to derive any huge tax benefit from essentially self-incorporating. Their income would almost entirely pass through to them as payroll. They would then be still on the hook for the same amount of tax from earnings, while at the same time creating a cost center with corporation. The real benefits come when the performer is making much more than the wage they need to live, as the money can be held in the company as profits (and taxed at a lower rate), and paid out later when the performer has lower income. You could get into things as well such as paying dividends rather than salary, and so on, all ways that you make the money move with a little less tax.

    All of it requires the performer to actually earn more money than they consume, which is rare in this industry!

    The employee versus independent contractor issue is key mostly when it comes to liability and legal issues, and not taxes.

  9. My question, problem is, how can a girl that shoots for 10 different companies in a month be an employee of those 10 different companies in said month? And a company that hires a girl for 1 shoot and she will never shoot again for them, they need to put her on payroll, pay her, then what lay her off? That’s idiotic and makes no sense to me.

    Independant contractor fits perfectly no? I certainly wouldn’t put a contruction company on my company payroll that is fixing something in my building for a week. I contract them to do the work.

    Paying for tests I think companies should be doing 100% but employee/payroll, doesn’t make sense.

  10. Lacey: Nice job. As an independent contractor who has worked in mainstream television, my experience mirrors your description. When I was called in on a project, I’d first get approved by the networks, then do a contract with the production company running the project. After that, HR would put me on payroll for the purposes of that project. That allowed them to deduct payroll taxes, union dues, and set the base for the union pension contributions.

    You might know more about this because you have family members who work in mainstream, but my impression – and nothing more than that – is that the HR piece was negotiated by the union (in my case, the writer’s guild) so that talent didn’t have to pay self-employment tax. The production company, or network, makes the employer contribution. I think its less to do with how the state or government classifies you. The only reason I say that is that I’ve also worked for every major publisher in New York where I performed basically the same duties, just in a different medium. I was always, without exception, a 1099 employee. That was true even for Hearst, where I did projects every month for more than a decade. I signed a new contract for every project and got an individual check for every project.

    My guess is porn production companies want talent to be independent contractors so they don’t have to make a 7.625% social security/medicare contribution more than anything else. But a producer might weigh in here. As an independent contractor, someone does a scene, you cut them a check, boom, you’re done until the end of the year when you send out your 1099s.

    My guess also is that most talent probably would rather get that big check – until they start filing quarterlies. And, most talent probably isn’t disciplined enough to set up a corporation to be a loan out.

    That said, from personal experience as an employer and not an employee, I believe Rawalex is correct with regard to Cal/OSHA – and also with workers comp. Employers are required to provide a safe work environment. If someone is injured on the job, the employer is potentially liable if at fault, regardless of whether the person injured is an employee or independent contractor. Its the reason that most large companies will not hire an outside contractor who doesn’t have their own liability or workers comp insurance. The classic example is you hire a roofer to put a new roof on your building; he falls off a ladder and is injured; has no insurance; and comes after you for workers comp.

    And, from a legal liability standpoint, it doesn’t matter. Anyone can sue anyone for any reason. If talent sues a producer, claiming they contracted HIV on set, I’ll guarantee you that the producers lawyer isn’t going to stake their defense on independent contractor status. They’re going to claim that given all of the sexual contacts an individual talent may have had – personal life, escorting, whatever – means you don’t know where the HIV was contracted.

    Yeah, I know from a previous post that I live in NH and I’m not a California pornographer, so what do I know. But, as a rule, these kinds of things don’t vary from state to state all that much. Workplace safety is workplace safety.

  11. What it points out is that no talent and I mean not even the highest level talent has taken the steps necessary to do the loan out employee thing. So for all practical purposes they are all employees. but they prolly shouldnt be, I would argue that for some talent this would be an ideal situation particular if they work a lot. But of all the talent I know only kayden kross has a CPA and she was an employee of Digital Playground so it wouldnt have applied to her.

  12. C’mon South – how could you POSSIBLY know what every talent has done for you to make a blanket statement like: “What it points out is that no talent and I mean not even the highest level talent has taken the steps necessary to do the loan out employee thing”? While it may be/probably is true, just saying it doesn’t make it true. There may be people out there – actors, dancers, models, whatever – who have tax advisors who know things like Lacey who have advised them to do just that.

  13. @Bt,
    regarding suing a producer and claiming you caught hIV on set.
    Brooke Ashely did exactly that, and won, At NO TIME during the proceedings, at any court level, did she ever produce any evidence that any of the males on that set were HIV positive. T he name Marc Wallice(Goldberg) was never mentioned.

    Workers Comp does not require proof beyond a reasonable doubt. WC requires that you show that it is likely that the injury occured during work. Take Carpal Tunnel syndorme as an example. A person who works on a computer 8 hours a day claims they have CTS and files a WC complaing. The employer says, “The employee also uses a computer at home, and plays tennis, and that is what caused the condition.” The employer looses, because it is likely that the work duties contributed to the injury.

    Brooke Ashley NEVER produced any evidence, actual test results, or even testimony from anyone who knew Wallice, that showed anybody in that workplace had HIV. The employer in the Ashley case tried to do exactly what you said, and claimed her off set activity caused the illness. Long story short, Brooke Ashley won.

  14. In mainstream, an actor who worked for 10 different production companies during a month would be an employee of each of those production companies for the purposes of the shoot. That’s the way mainstream works. It’s no different than if you had 3 or 4 part-time retail jobs. Each time you punched the time clock, you’d be an employee of that company and you’d receive a paycheck that includes withholding. Remember – as far as the company you are working for is concerned, you’re just one employee. From a payroll perspective, it’s no more or not less time or effort for them if you only work for them or if you work for multiple companies.

    The real issue here is related to the Cal/OSHA regulations. Porn has over the years tried to argue that it is not responsible for these things because performers are independent contractors. That may be true for payroll purposes – and probably is true. It’s not the case for worker safety or health issues.

    Using your analogy of not wanting to put trades people on your payroll when they do a job, you don’t have to. They are independent contractors for billing purposes. However, you are still responsible for them when they are on your property as if they were employees from a workplace safety issue.

    That’s just the way it works.

  15. Jilted: You mention a lawsuit and in the next paragraph Workers Comp. Did she file a suit in court, where she has to prove by a preponderance of the evidence (It’s more likely than not that the act occurred), or did she file a workers comp claim. As I’m sure you know, they’re two different things.

    I don’t know anything about her suit, but if you’re suing someone for damages in civil court, you have to prove by a preponderance of the evidence that some event occurred for which the defendant is at fault. She would have had to prove that she has HIV, that she contracted HIV on that producer’s set, and that the producer knew or should have known that she was working with someone who could infect her with HIV.

    She also has to prove damages – in HIV, that’s pretty easy to do, but all the same, she has to prove damages and then quantify those damages.

    I don’t know anything about her case – if she filed a civil suit – so forgive me. But the fact that she contracted HIV wouldn’t in and of itself warrant a judgment against the producer in a civil suit. You have to prove that the producer was at fault. But again, I don’t know anything about the case. It sounds like you’re much closer to the situation.

  16. BT,
    I stand corrected. It was a workers comp case, not a civil suit. The threshold for a workers comp claim is much lower than a civil suit. the attached link here from the Luke Ford archives shows just how long the industry has had their collective heads up their collective asses.

  17. In the past ten years OSHA has fined several companies for helath and safety violations. Almost every single time the companies have appealed the citations, gone through the OSHA appelas process, and EVERY SINGLE TIME the citations have been upheld.

    NEVER has any company then taken the steps to fight the citations in court. Every single company that has ever been cited by OSHA has had this opportunity, but no one has ever done it. Some say this is because it is just cheaper to pay the fine, but their is another reason. And that reason is, they all have good lawyers, who know that you dont get into a battle that you have no chance of winning.

  18. A few clarification points:

    1. These issues have ABSOLUTELY NOTHING to do with what makes sense. Seriously. It makes perfect sense to pay everyone as a 1099. The business would save money by not having to match a portion of payroll taxes per employee, not having to pay federal unemployment taxes or state unemployment taxes, etc.
    There is no business out there who WANTS to have employees. It would save a huge amount of money to NOT have employees. This is why classifying a worker as a 1099 instead of an employee is somewhat risky in most situations. The IRS gets more money and gets it faster with employees.

    The IRS won’t really care about what you think makes sense. They will review who was paid as an Independent Contractor to see if they were, in fact, 1099’s or if they were employees according to the tax code.
    If the worker was considered an employee, but paid as a 1099 then the business would get penalized and then get retroactively penalized from when the person started working.
    (This would be just one of the 1,000’s of reasons why getting audited really sucks.)

    2. I never once said this post was strictly about Cal-OSHA regulations? But, it most certainly is relevant to the discussion. Production companies are complaining about the liability being put on them and I’m just explaining that deciding one day that you want to start a business and then handing out a bunch of 1099’s to every single person who does work for you doesn’t necessarily make you a true business owner. Every business on earth would just hand out a bunch of 1099’s at the end of the year if that was the case.
    Being an independent accountant, I always get paid as a 1099. The business could continue to operate without me and they have no control over my job other than telling me what they want whether it’s financial statements or a tax return. The business owner isn’t going to come sit next to me and explain how to do my job or give me directions on how to prepare his tax return….
    Obviously, performers aren’t that straightforward.

    3. I was just explaining how the mainstream industry works as an example, but their regulations are solid. If you don’t make enough money to self incorporate then you have no reason to be considered a business in their eyes.
    (This is why most production companies will only allow C-Corp. or S-Corps. It eliminates the workers who just give a SS# and request to be paid as a 1099. The risk for a wrong classification falls directly on the business, not the worker. It doesn’t matter if the worker thinks they’re a 1099, it depends on the tax code.

    4. The fact that “Loan out corporations” are basically only a C-corp. or an S-Corp., it takes time and money and makes the performer basically “a separate legal entity” is exactly the point for them to basically cover their ass by not allowing just anyone to get paid as a 1099. The risk falls on the business who is hiring you.
    Businesses can very easily pay everyone as a 1099 and then hope they don’t get audited or can fight an opposite IRS decision during an audit.
    A business could very well operate for 30 years, pay everyone as a 1099 and do just fine even if some may be technically considered employees. It’s all about risk. This is also why it aggravates the fucking shit out of me that it’s so hard to get an answer in regard to worker classifications. If you expect people to make a decision on how to classify a worker, you *may* want to give them enough details to make the correct decision.

  19. @BT/@jilted –
    Would it be reasonable to say she won the WC claim based on the fact that she wasn’t actually directly protected from HIV?
    I don’t know about the case either, but I’m trying to figure out if it had to do with a specific argument?

  20. I forgot one thing, the IRS doesn’t even like “Loan Out Corporations.” The idea was created mainly for very high earners (think Johnny Depp or Brad Pitt, where we’re talking in the millions.)
    They can be used by anyone, but the idea came from those performers or musicians as a way to get tax breaks….

  21. I believe the file on this case was sealed by court order to protect the privacy of the HIV infected person, although everyone knows who it is.

    But what is even more astonishing is that alt of people in the industry dont know about this case, and its legal ramifications. It wasnt until I started posting about it several years ago on industry forums and blogs did anyone start reporting on it, most notably AVN. This was back in 2007. This case took nine years to be settled, which is a travesty of justice in and of itself.

    All of the ‘debate’ over IC vs, employee was settled back then, but the head up it ass industry just pretended like this never happened, as they do today. This story doesn’t jive with the usual preaching to the choir industry bullshit, so they pretend it doesnt exist.

  22. Jilted/Lacey: What Jilted just wrote – that it was a workers comp case and not a civil suit – now makes sense. And the fact that it was either sealed or the identity of one or both parties redacted for medical privacy reasons makes sense also. You’re right Jilted – the bar is a lot lower in a workers comp case. Plus, if the production company had workers comp insurance, the insurance fund pays the claim and not the production company. However, the production company would have seen its rates increase the next year when its insurance reset – kind of what happens to your auto insurance rates if you have an accident.

    You’re also correct that this makes the point we’ve been making about employee versus 1099 for the purposes of workers comp and Cal/OSHA. If she was successful in a workers comp claim, then the state concluded that for the purposes of that shoot, she was an employee, regardless of how she was categorized by the IRS for income purposes.

    My guess is that the production company fought it for as long as it did expressly for that purpose. If the state determines that adult talent are covered by workers comp for injuries on set, including sexually transmitted disease, then they have a lot of potential exposure.

    Good info, Jilted.

  23. That may work in California where the employer is required to purchase their Workman’s Comp insurance from the state-run State Fund but in Michigan where there are at least twenty privately-owned companies in the Workman’s Comp biz the cases are run through the appropriate court (District or Circuit) and the rule is the same as a criminal trial — prove beyond a reasonable doubt. Personally I like California’s system better but since there is now a porn company producing in Detroit (I won’t name names since they are breaking Michigan fornication law and the producers and performers involved could go to prison for life if they are caught) I thought I better highlight the differences between the two states Workman’s Comp laws. Most states have Workman’s Comp laws more similar to Michigan’s than California’s.

  24. And, these various complicated legal issues are EXACTLY why the mainstream industry makes it so difficult to just consider yourself as an “Independent Contractor.” They may have to pay more in payroll taxes, federal/state unemployment taxes, etc. BUT, it takes a huge amount off risk off the production company and, more importantly, the actual producers. When it comes to productions in the millions that’s some serious risk to take…. there’s a HUGE difference between hiring a lawyer who’s sitting in his office 100% confident that he’s actually a 1099 and hiring an actor who will be working on a set somewhere where there are so many ways for someone to get hurt and then blame the production company and every single producer involved.

  25. You are always considered an employee until it can be proven that you are an IC. It is not the employer, or employees decision to determine your work status. The LAW makes this determintation, not the company or individual employee.
    It benefits the employer to classify you as an IC, and that is why there are penalties for misclassifying an employee as an IC. The burden is on the employer to prove IC status.

  26. Jilted: That is correct. However, porn performers probably are properly classified as 1099 employees for tax purposes. And again, that is different from OSHA and workers comp claims where you can be a 1099 for tax purposes and an employee for worker safety purposes.

    I have worked in the media for more than 30 years; I’ve worked in network television in California; I’ve worked in print publishing for publishers and newspaper headquartered in New York City, Massachusetts, Vermont, New Hampshire, Connecticut, Ohio, Maryland, California and Iowa. And, I’ve worked for one network news division out of New York.

    The services I performed for network television were identical to the services I performed for print publishers and newspapers. I’ve always been classified as a 1099 employee except when I was working for a network’s entertainment division or an independent entertainment production company. In fact, for one of the big three television networks, I have worked for both the entertainment division and the news division. The news division treated me as a 1099; the entertainment division treated me as an employee.

    I never asked why the difference, nor did I care because I’m used to making quarterly tax payments. But I really believe that in entertainment its the result of union contracts – I was a member of one of the entertainment guilds, which is a requirement of working in mainstream – and not a matter of whether the IRS would classify you as a 1099 or not. I think the unions have negotiated employee status so that individuals don’t have to pay self-employment tax. Don’t know that for sure. Just a guess.

  27. @BT –
    I absolutely agree with your comments.
    But, I’m going to challenge the “porn performers are probably 1099 independent contractors” just to prove how unbelievably confusing it can be to determine the correct classification:
    The distinction has alot to do with “control” and who “controls” the job. Porn production companies essentially control:
    The location of the shoot.
    The wardrobe for the shoot.
    Hair & makeup for the shoot.
    The exact location where sex is to occur.
    The exact sexual positions.
    If any toys or props are to be used.
    The call time for when to be on set.
    How long they will be required to work.

    In my own opinion, the most important issue is that the film couldn’t even be made without performers. If you don’t hire an independent accountant, your business can still operate.
    But, it is impossible to make a film without performers, which means the performers are necessary for the business to operate.

    As you can see, there are very good arguments on the side of employees AS WELL AS 1099 contractors which is why the distinction between the 2 is so damn complicated. It’s also why you could be classified as an employee for 1 company and a 1099 contractor for another company who hires you for the exact same reason!!

    For the record, I now have a headache. And, you probably do too!
    Hahaha! 🙂

  28. Lacey, you only have to look at a string of decisions at various levels in regards to strippers – they are NOT independent contractors for the most part, but basically unpaid employees. There are various cases that have come and gone in regards to their workplace environment, and every time it comes up as “they really are employees”.

    For taxation purposes, I think that either classification is correct, and really seems to depend on how the company wants to treat it. Many do not want the tax liabilities and therefore 1099 only, effectively making the performer entirely liable. Some I am sure have been burned by this at some point or advised by someone like yourself that it’s a bad idea, so they do it as payroll even if it creates a liability for them tax wise and opens up other areas as well.

    All said, the standing for tax purposes and the standing for laws regarding workplace safety and such do not match up in the slightest, and should never be taken in the same context. In my mind, it should be “contract employee for tax purposes” or “payroll employee for tax purposes” and “defacto employee for all other situations”. The tax side doesn’t change the legal side one iota.

    Now, there is one thing here: If the production companies required all “contractors” to have liability insurance for their work, there is potential to argue who the employer is. It would be as mentioned earlier, the difference between and insured roofer and an uninsured roofer working on your house and getting hurt. At that point, having the business as even a locally registered company with it’s own insurance would potentially suffice.

  29. re: strippers as independent contractors: that is why so many clubs are going to a “no schedule work whenever come and go and work as many hours are you want” deal – no schedule = IC.

  30. OSHA- Occupational Safety Health Act
    EEOC-Equal Employment Opportunity Commission
    ADA- Americans with Disabilities Act
    FLSA-Fair Labor Standards ACT
    OWCP-Office of Workers Comp Programs
    HIPPA- Health Insurance Portability and Accountability (COBRA from 1985)
    ERISA-Employee Retirement Income Security Act

    These are just the BIGGIES covering employment law, and apply to EVERY job in America. Then you have state and local plus INDUSTRY specific rules, policies and laws. The federal government has over 24,000 .gov websites then each of the 50 states has more.

    Defining WHO is an employee depends on WHAT laws and policies are considered. Defining employee classification, (casual labor, contract employee, highly compensated, exempt, non exempt, etc.) depends on many factors law/policy it relates to then accepting that classification even among Federal agencies/commissions aren’t standard and don’t necessarily correspond with state and local applications, Never mind various industries.

    Confusing, you bet. HOW you are paid doesn’t DEFINE employee status or classification it is the reverse. Ig hourly employee is paid at regular intervals per hour. Salary, a set amount per pay period. Contract employee, the amount specified by contract. Etc

    Getting a 1099 doesn’t make you a independent contractor, only specifies that recipient is responsible for all associated local, state and federal employment taxes. The 1099 is an IRS document.

    A surgeon forms an incorpation for tax and personal liability protection purposes. He deducts a home office where he keeps records, he owns a building for his practice and employs a nurse practitioner, a billing clerk, receptionist etc. He is CLEARLY the boss and EMPLOYER until he goes to the hospital/surgical center to see or operate on patients where he bills as an independent contractor for services and claims income from hospital or deducts fees paid to surgical center but he is an EMPLOYEE in that capacity for OSHA despite carrying and providing his own Workers Comp insurance. This points out that even the WC example isn’t adequate.

    OSHA even defines the EMPLOYER/EMPLOYEE differently by varied industries. That is why the draft addressing OPIM-STI is so big!

    Until now outside of a lab or hospital setting it has never been acknowledged that exposure to OPIM-STI could be an occupational hazard!

    Rule of thumb, when trying to define ANYTHING in the world of laws and regulations…look at specific document for the corresponding definition.

  31. @ robo
    Intermittent employees is one way, casual labor for the one timer.

    The OSHA draft allows producers to “pool resources” via the PLHCP for testing/exam expenses. The document doesn’t define HOW they determine WHICH producer WHAT amount, only that it may be done.

    The porn industry isn’t unique to shared mandated employee expenses, look at sports.

    If it were easy or made sense exposure to OPIM-STI protections would have been created long ago. 2004 nhlb (NIH) defined the need and quandary of provisions for porn industry.

  32. @LurkingReader –
    Intermittent Employees/Temp. Employees/Hourly Employees are all considered employees.

    Casual Labor is another term for contract labor, which ultimately makes them a 1099 Independent Contractor.

  33. @Sherry Ziegelmeyer –
    Even mainstream performers who are classified as “loan outs” and receive a 1099 under their corporation are still considered “employees” under OSHA rules and regulations. It’s just about impossible to get away from OSHA for most industries…

    Although, the adult industry doesn’t seem to give a shit about OSHA rules considering they’ve never recognized them so I’m still not sure why they’re fighting against Cal-OSHA so hard?

    Seriously. Just don’t follow them. They’ve never followed them before, so why start now?
    Most performers have stated that OSHA doesn’t have enough inspectors to even enforce the rules so just continue to do whatever you want… if they can’t enforce them then there’s no reason to follow them…

  34. For what it’s worth, which isn’t much… 🙂

    Here’s my personal opinion regarding the Cal-OSHA worker classification debate. It can be summed up in 2 sentences which were taken directly from the Cal-OSHA website under the IIP Model example linked directly from the webpage created exclusively for the Adult Industry:

    “This model program has been prepared for use by employers in industries which have been determined by Cal/OSHA to historically utilize intermittent or seasonal workers. Intermittent or seasonal employment refers to controlling, directing, or directly supervising any worker other than permanent workers.”

    A few very important details:
    1. The word “worker” is used throughout. There is no mention of “employees” unless you consider “permanent workers” as employees, but employees have already been well established as covered under Cal-OSHA rules.
    2. They use the word “Employer,” which would lead you to believe the workers were therefore “employees,” but that’s not what they are implying. They are referring to “employer” as anyone or any business hiring workers of any kind.
    3. This would mean that all Adult Performers are considered “Intermittent or seasonal employment.” This would classify them as neither “employee” or “Independent Contractor.” (You could TECHNICALLY say they were similar to part-time employees, but not exactly)

    This essentially covers almost every single business in operation (aka employer) which then hires any single person (aka worker) to work at a specific location for financial compensation. So, pretty much almost everyone on earth over 18… I guess???

    I’m pretty sure if you hire an independent lawyer to meet you at your construction site for a meeting then you would be required to ensure his safety at all times not just from a liability viewpoint, but from state health regulations as well. Or, if you hire a lighting guy on the set then the company or director would be required to make sure he isn’t harmed, infected, etc.

    They really worded that as broadly as possible, but it does make sense if they were attempting to include employees and Independent Contractors…. At least in my opinion

  35. If you read the proposed guidelines offered by FSC on OSHA site you will see that FSC defined two classes of “actors” one was intended to be excluded. In the OPIM-STI draft OSHA makes it clear with proposed definitions that excluding anyone exposed wont fly.

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