@LurkingReader –
Can you tell me where to find the FSC proposed regulations (where there are 2 classes performers are described.

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.

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

@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…

@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.

@ 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.

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.

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.

@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! 🙂