Oct. 6, 2007
XBiz reports Oct. 8:
Adult industry attorney Michael Fattorosi told XBIZ that once the "Doe
43" case — involving adult performer Brooke Ashley's alleged
HIV contraction from a bareback anal gangbang — determines that
adult performers are considered employees rather than independent contractors,
Cal-OSHA inspections could mean trouble for uninsured adult studios.
..."This state is very pro-employee and it takes care of its employees
probably more so than other states," Fattorosi said. "It's
basically a matter of time until California gets its head out of the
sand and starts looking at this industry."
AIM Health Care founder Dr. Sharon Mitchell told AVN that while she's
been unable to verify why the agency visited the Naughty America set,
"I can tell you typically these things are prompted by an employee
or former talent member that could call and say that they felt they
were in unsafe working conditions. They usually just don't pick out
of a trick bag and say, 'OK, we're gonna do this one today.' They typically
would have a reason for coming, or they would be prompted to come to
a specific location."
Dr. Mitchell went on to explain that what OSHA commonly would be looking
for is proof of compensatory insurance, or of an injury and illness
prevention plan. "This is something that goes along with Section
Title 8 of the California Safety Code," she said. "It's to
make sure that people aren't at massive risk for any types of infection.
"There really is no clear standard for the adult entertainment
industry in that Section 8," she continued. "I mean, technically,
if someone wanted to push it, you could have people having sex in moon
suits; you could really take this to the nth degree when you're talking
about what we [call] 'universal precautions' — that's when we
draw blood, we have to have the goggles and the gloves and closed-toed
shoes and things like that. I think it's really in everyone's interest
to make sure they have [insurance and a safety plan] in place as an
adult entertainment company."
This story broke
Oct. 4 on GFY.
I hear that Cal-OSHA's representative was pleasant and professional.
He wanted to know if the sex on set was protected. He passed his card
out to all the performers and encouraged them to call or email him if
they had any question about their rights.
published guidelines about 18 months calling for an end to unprotected
sex but this was the first time, to my knowledge, that a Cal-OSHA
rep visited a set, inquired if the sex was protected, and handed out his
business cards to all the porn actors.
If Cal-OSHA enforces these guidelines, it would be the end of Southern
California's porn industry.
There's a lot of ammunition pointed at porn now but this is the most
The one genre of porn that won't be much affected by Cal-OSHA is the
homosexual. It already uses condoms.
Naughty America has been shooting like mad for six months and rents out
Remmet Studios a dozen days a month.
AVN knows about this story but they have not yet published anything.
The director copped an attitude, saying we're not doing anything wrong
and here are our permits.
I don't know if somebody called CAL-OSHA in or if this is just a case
of a bureaucracy moving slowly.
Male performer Christian says Anita Cannibal was responsible for this
I suspect there will be many more such visits to come.
Another spur for the visit might be the Brooke Ashley case before the
California Workers Compensation Board.
Kernes wrote July 20, 2007 for AVN.com:
SANTA MONICA, Calif. - The adult industry will have to wait until at
least December 4 before finding out if the relationship between producers
and talent will undergo a revolutionary change, thanks to a legal case
that's been nine years in the making.
December 4 will mark 90 days after testimony in the workers compensation
case known as "Doe 43" will be completed before Judge Lisa
A. Sussman, a judge of the California Workers Compensation Appeals Board.
That final witness will be writer/director Cash Markman, who spent about
a half-hour on the stand yesterday morning, being questioned by Elliot
Berkowitz, attorney for claimant Doe 43, better known to the adult industry
as actress Brooke Ashley.
...Beck's financier for The World's Biggest Anal Gangbang was
reportedly one Robert Dupree, and in the current proceeding, Berkowitz
and Workers Compensation Bureau attorney Nora Tu-Willis are seeking
to have the court declare that Ashley was Dupree's employee. If such
is the finding of the court, Dupree would be required to pay workers
compensation to Ashley, or if for some reason Dupree were unable to
do so, Ashley's compensation would be paid from the Uninsured Employees'
Benefit Trust Fund. Additionally, Dupree might be assessed fees for
not having paid for workers compensation insurance for Ashley while
she was his employee.
The central question, however, is whether in fact Ashley was an employee
of anyone while making The World's Biggest Anal Gangbang,
or simply an independent contract selling her services to the production
company, as is currently considered to be the case with the vast majority
of adult productions today.
Elliot Berkowitz won a key lawsuit in Nevada, forcing the state's strippers
to become W2-filing employees rather than independent contractors. He's
expected to win this suit also. Therefore porn stars will be regarded
as employees rather than independent contractors and porn producers will
be held liable for their workplace health.
Michael Fattorosi (adultbizlaw.com) writes Oct. 7 on XPT:
I was afraid this was going to happen. I really thought it was
going to take another HIV scare/outbreak for them to start visiting sets
Maybe it was Anita, maybe it wasnt. Either way, this kind of governmental
regulation could be worse than 18 USC 2257. If the Dept of Industrial
Relations starts sending people to inspect work comp insurance certificates,
there could be some major shut downs of production companies and heavy
fines. $1000 per day per employee if there's no insurance.
I have had several non-adult clients locked down and fined heavily
because they were operating without insurance.
If this becomes a regular event we are in for some real impact.
T.T. Boy requires performers to sign a self-responsibility release for
STDs. Fattorosi notes that release won't hold up in court. The right to
a safe workplace can't be signed away.
Cannibal has been written up on IndustryBlackList.com:
This skank with the mangled mammaries pretends to be a law student
at a phony, fly-by-night law "school."
She agitates for a condom-only industry, causing trouble on sets and
harping incessantly about it on her KSEX show.
In all likelihood, she is the one who ratted the industry out to CAL-OSHA
She also spreads false allegations of rape on set, cf. Madison Scott.
It's time the Industry stopped subsidizing this traitor, and time for
Joe Brandi to Man Up and pull the plug on her program.
Vivid Video recently sent one of his contract girls to shoot a movie
in Brazil. Shooting out of state and out of the country will become the
rule rather than the exception if Cal-OSHA requires California porn sex
to be protected.
Shooting porn in states outside of California is not necessarily legal.
Lawrence G. Walters writes:
A common question asked by adult webmasters across the United States
is: "Can I create adult content outside the State of California,
where adult films have historically been produced?" The answer
is more complex than one might think.
Caitlin Lui and Eric Malnic write for the Los Angeles Times Sept. 17,
Cal/OSHA said Thursday it had fined two Los Angeles-area adult film
companies $30,560 each for allegedly allowing actors to perform unprotected
sex, the first time the state agency has taken regulatory action against
the porn industry.
The citations against Evasive Angles and TTB Productions, which share
the same Van Nuys address, come six months after an HIV outbreak involving
four actors prompted a temporary shutdown of adult film production in
Southern California. In the wake of the shutdown, Cal/OSHA officials
said they would begin investigating the industry to determine whether
it complied with state health and worker safety laws.
The companies received citations for violating the state's blood borne
pathogen standard, a regulation that requires employers to protect workers
exposed to blood or bodily fluids on the job.
"What this means is that any employer whose workers are exposed
to any potentially infectious material, such as semen or vaginal fluids,
must follow state regulations covering workplaces," said Susan
Gard, a spokeswoman for Cal/OSHA, which issued the sanctions Wednesday.
"Any bodily fluid is considered infectious. That means barrier
equipment must be used."
Health officials have been urging adult film producers to require that
all actors practice safe sex during filming, including wearing condoms.
But gaining compliance has been a struggle.
Regulators and adult entertainment leaders agree that the vast majority
of the Southland's 200 or so porn companies eschew safe sex practices
in their films. Only about 17% of actors use condoms on a regular basis,
according to the Adult Industry Medical Health Care Foundation, a nonprofit
group that conducts sexually transmitted disease testing for the porn
Moreover, many actors say producers refuse to hire them if they insist
on practicing safe sex on the job.
Officials at Evasive Angles and TTB Productions could not be reached
for comment. Cal/OSHA identified the owner of both companies as Phillip
Rivera. The companies have 15 days to appeal the eight citations.
The citations accuse the companies of failing to notify authorities
about actors who contracted HIV on the job, as the law requires. The
producers also failed to have a written injury prevention program and
report a workplace accident to Cal/OSHA within eight hours, as required
by state law, agency officials said.
Reaction in the porn industry was mixed, with some questioning whether
Cal/OSHA's actions would change filming practices.
"It doesn't matter what Cal/OSHA wants. It's a matter of Cal/OSHA's
authority," said Jeffrey Douglas, an industry lawyer and chairman
of Free Speech Coalition, a Chatsworth-based trade group for the adult
The state agency has regulatory power over employees but not over contractors.
Porn actors, many of whom are paid by the scene and change employers
every day, "are not necessarily employees," Douglas said.
But actor Tony Tedeschi applauded the agency for taking action.
"I think it's about time the government addressed work safety
issues that have been a problem for a long time," he said. "It's
a good thing to see the government doing something."
Tedeschi, who has been in the industry for 15 years, said he did not
insist on using condoms.
"If I did, I wouldn't be able to work," he said.
Actor Brandon Iron said he also welcomed Cal/OSHA's efforts but doubted
they would make a difference.
"I'm not sure it's enough of a deterrent to other companies to
change the way business is done," he said.
It is a widely held belief among producers that showing condom use
in their films would hurt profits because the customers do not want
to see safe sex.
The citations were the culmination of a months-long investigation of
a complaint filed by a porn industry worker whom the agency declined
to identify, citing confidentiality.
The agency, which oversees workplace health and safety, has not decided
how it will carry out enforcement in the porn industry.
The agency sometimes conducts investigations only when a worker complains.
But the agency has also conducted surprise "sweeps" at workplaces
in certain high-risk industries, such as construction and agriculture,
to inspect for violations, Gard said.
Employers must not just provide protective barriers to prevent workers
from being exposed to fluids but must also "ensure that workers
use them," she added.
Cal/OSHA has posted a page on the state government website, http://www.dir.ca.gov/dosh/adultfilmindustry.html
, that instructs porn companies that they need to have an exposure control
plan as well as worker safety training. Protective equipment, the site
suggests, can include condoms, dental dams, gloves and eye protection.
It also includes a link on "How to file a complaint with Cal/OSHA."