California Administrative Law Judge (ALJ): Adult Film Workers Are Employees

Note: This is a serious safety topic, it deals with the life and death of employees. To some extent, covering this story does reflect my sense of humor. But what you need to take away from this are 3 things.

First, Bloodborne Pathogens can apply anywhere, especially in places that you may not think. For example, a cashier at a fast food restaurant. A good restaurant will have a dedicated maintenance or janitorial person that handles cleaning. It is not uncommon to have cashiers wipe down tables, mop the floor, or check/stock/clean the bathrooms at slow times.

Cleaning the bathrooms may trigger Bloodborne Pathogens training requirements. What about if an employee (not seriously) cuts themselves. Even if the manager just gets them a bandage and they are fine to return to work, the Bloodborne Pathogens Standard may be triggered. What if the manager tells the cashier to mop the blood drops off the floor?

The second thing to take away is the issue of independent contractors. Most general contractors require all subcontractors and their employees to go through the general contractor's safety training. Even if the GC has an approval process where subcontractors' employees are trained and approved to work for the GC, they are still required to go through site specific training.

Many GCs even go further by covering all subcontractors and their employees under the GC's work comp even if the subcontractors have their own comp. I have even been on site where the GC extended their liability coverage to the subcontractors.

Finally, this ruling may only be California, but California is a precursor to what will follow in the rest of the country.  Don't believe me? Look at gay marriage, pollution control, social program expansion, universal healthcare, immigration, and the list goes on.

Warning: The following and links to the ALJ decision graphically outlines practices on the sets. Some people may find the descriptions disturbing. Some links to entities mentioned may point to adult themed sites.


On to the story....

AHF: Cal/OSHA Issues Landmark Ruling Against Treasure Island Media On Bareback Porn

January 23, 2014
Los Angeles
From Yahoo Finance

In a first-of-its-kind legal ruling, California’s Division of Occupational Safety and Health Appeals Board rejected an appeal by the Bay Area condom-less porn company and issued a broad rebuke to Treasure Island Media, Inc., finding that the issues cited in the company’s bareback porn film citations are serious. Last February, AHF filed Cal/OSHA safety complaints against Treasure Island over its production of condom-less gay adult films; the complaint was AHF’s first targeting producers of bareback gay films.

AIDS Healthcare Foundation (AHF) has learned that in a first-of-its-kind legal ruling against aCalifornia adult film production company, California’s Department of Industrial Relations, Division of Occupational Safety and Health’s Appeals Board (Cal/OSHA), has rejected an appeal of several workplace safety violations issued by Cal/OSHA against Treasure Island Media, Inc., (TIM) a Bay Area adult film production company that primarily serves and produces condom-less, or ‘bareback’ films for the gay market. In a landmark—and at times graphic—36-page ruling filed with the Department of Industrial Relations’ Los Angeles Legal Unit on January 8th, Cal/OSHA Administrative Law Judge Mary Droyovage issued a broad rebuke to Treasure Island Media, finding that the issues in Cal/OSHA’s original bareback porn film citations against the company are “serious.”

“For the first time ever in California, Cal/OSHA’s Appeals Board has, in a formal trial of an appeal of several safety violations lodged against a California adult film company, overruled the appeal and upheld the citations and fines originally issued to Treasure Island Media for its condom-less porn productions,” said Michael Weinstein, President of AIDS Healthcare Foundation. “Treasure Island has been quite outspoken in its opposition to condom use in the company’s films. That is partly why we filed workplace health and safety complaints with Cal/OSHA: to press for the enforcement of existing state and local workplace regulatory guidelines which require the use of condoms in their—and all—adult films produced in California. After Treasure Island took its OSHA case to trial, claiming that the performers in their films were independent contractors and that the section of the regulations regarding Bloodborne Pathogens did not apply to the adult film industry, the court sustained Cal/OSHA’s citations after testimony and evidence were presented. This ruling is a milestone for workplace safety in California, and the first time OSHA has had the opportunity to weigh in so clearly and forcefully on workplace safety on adult film sets.”

In February 2013, AHF filed several ‘Notice of Safety or Health Hazards’ complaints with Cal/OSHA, the state’s health and safety regulatory and watchdog organization, over the lack of condom use in adult films produced by Treasure Island Media, Inc. over its production of condom-less gay adult films. AHF’s complaints asserted that the films demonstrate unsafe—potentially life-threatening—behavior in a California workplace, as the sexual acts filmed without participating performers using condoms depict the unprotected exchange of bodily fluids.

The Treasure Island complaints were AHF’s first in a series targeting producers of bareback gay films. AHF filed similar worker safety complaints with Cal/OSHA beginning in August 2009 against 16 California-based adult film companies, and in the years since, filed additional complaints specifically targeting Steve Hirsch’s Vivid Entertainment as well as Larry Flynt’s Hustler Video. To date, Cal/OSHA has opened investigations into several of the companies, has cited and fined several, and is still evaluating and considering additional investigations of some of the remaining companies.

Several of Treasure Island’s Cal/OSHA citations arose from one 2009 film submitted as evidence by AHF in its ‘Notice of Safety or Health Hazards’ complaints to Cal/OSHA last February. The film depicts unprotected sex involving several men, as well as scenes depicting one of the men receiving the previously collected semen of over 1,000 men into one of his body orifices.

In sustaining Cal/OSHA’s workplace safety citations against Treasure Island Media, Administrative Law Judge Droyovage found that:  

1. Section 5193 (of the Bloodborne Pathogens statute) applies to the adult film industry;  
2. Barrier protection is the only workplace safety equipment that will satisfy the standard;
3. Performers in Treasure Island Media’s films are employees;     
4. They (film performers) were exposed to bloodborne pathogens;      
5. Treasure Island Media violated section 5193 and did not have any of the following at the time of inspection:
1. An exposure control plan
2. Minimize or eliminate exposure by using protective equipment
3. Provide Hepatitis vaccinations
4. Conduct and document exposure incident evaluations
5. Communicate hazard information in the form of training, signs and labels
6. Maintain medical and training records     
6. The violations were serious in that there is a “substantial probability that employees would suffer serious exposure resulting in serious physical harm or death if violation occurred.”

"This Cal/OSHA ruling against Treasure Island is a milestone in three important ways,” added AHF’s Weinstein. “1) the ruling unequivocally states that the adult film performers are employees, not independent contractors, as the industry regularly asserts, and as such are indeed covered under OSHA workplace safety statutes; 2) it was the first time an adult film company cited has actually gone to a full trial for appeal with Cal/OSHA instead of settling, paying—or ignoring--its citations; and 3) it is the first time an adult film company has also lost in this precedent-setting court ruling.”

In closing....

You can find Cal/OSHA's Vital information for workers and employers in the adult film industry here:

You can find the IRS guidance on Independent Contractor or Employee here:

Thank you for reading.

Did you know that the IRS collects fines for OSHA?

As a safety professional I bet you did not know that the IRS collects fines for OSHA. This is not common knowledge and is not really publicized anywhere. This little known fact was brought to light in the following article: Builder's plan to ignore OSHA fine in collapsed home could mean IRS involvement.

The IRS is not the primary collection agent for OSHA, they are only the "hammer" after unpaid fines have gone to collection. According to the article:

Bill Coffin, a supervisor for OSHA's Augusta (Maine) office, said his agency generally collects most of the fines, but there are procedures in place if companies refuse to pay. The process starts with the debt collectors in Washington, D.C. If the company ignores collector's letters the process is turned over to private collection firms and, eventually, to the Internal Revenue Service.

So what does that have to do with me, I am only the safety person. You must impress upon your superiors and the owners that OSHA fines are serious and need to be paid. They are not like herpes, they don't just go away if you ignore them. (Disclaimer: This is an attempt at humor.) Most of the time, you can "negotiate" with OSHA to reduce or to eliminate the fines. I have done this on multiple occasions.

The negotiation is a a give and take. OSHA will expect you to correct any deficiencies in a certain amount of time. They will expect a written safety program is instituted/updated, followed, and training is done.

This goes back to what I have always said: "Are you trying to do the right thing?"

 Your workplace has to have at the very least something that looks like a safety program. OSHA does this to give an incentive to utilize a safety program. There is a certain point of "economies of scale" where it becomes cheaper to just pay the fines. I won't go into the math, but OSHA has to make it more cost effective to do the right thing. If there is no safety at all, OSHA will figure this out very fast, and there is little that you can do.

If you work at a medium sized company, and management deems that it is "not in the budget" to pull everyone off the job and conduct a monthly safety meeting, then what do you do? I had this problem with a manager for one of my clients, here was my solution to him:

Conduct one-on-one training. As you walk around the floor, take 5 minutes and do a mini-training session. Go over what is important, ask the employee what they think is important, if they do not know how to do something show them then and there, and have them sign off on a training sheet. This is just as much about the day to day production as it is about safety.

The other solution was to have a once a month production meeting at the beginning of the month. This made the owner happy because it was a means to plan production, reduce costs, and increase output. Part of this included safety. Safety has a direct correlation with efficiency.

When I started in the staffing industry, my first job was sales. I was quoting a sawmill (this shows how long ago this was), and I asked the owner about his current work comp coverage. He told me that his broker was to have a policy for him.

The next day he was to start production.

I told him that if he has not heard from his broker by now, I doubted that he would have coverage tomorrow. I asked, "What are you going to do?" He answered, "What can I do?" "I have to start up tomorrow with or without comp. I can't afford not to." I asked, "What if someone got hurt?" "I guess I am out of business," was his response.

I walked away and never went back. That was one of those experiences that had a profound effect on me.  heard nothing of concern if someone got hurt, only what he could afford. I realize that you need to support your family and business, but at what cost? I also wondered that if he did have work comp, would he run the business any different? I doubt it.

I think the point to really take away is that it is cheaper to institute a safety program than to throw the dice and hope for the best. I also believe that it is the ethical thing to do. It will allow you to sleep at night. Most important, sometimes you have to walk away.