In the first ruling of its kind, a judge has ruled that pornographic performers in California should be treated as employees and covered by workplace laws requiring condoms, fighting a standard that industry officials say often categorizes performers as independent contractors.
This month's decision comes in the wake of Los Angeles porn production’s third moratorium within a year after performers tested positive for HIV.
AIDS Healthcare Foundation (AHF) on Thursday called the judge’s decision a "landmark" ruling. The nonprofit in February 2013 filed several “Notice of Safety or Health Hazards” complaints with California’s Department of Industrial Relations, Division of Occupational Safety and Health’s Appeals Board (Cal/OSHA) against the subject of the court case, Treasure Island Media, for the lack of condom use in the company’s gay adult films.
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AHF’s initial complaints were part of a series of filings targeting the producers of unprotected gay sex films, but several of Treasure Island’s Cal/OSHA citations were specifically tied to one 2009 film submitted as evidence. The film in question depicts several men having unprotected sex, as well as the collection of an exorbitant amount of semen by one performer, according to a news release by AHF.
Treasure Island was taken to task for its lack of condoms, as well as its absence of an “exposure control plan” that would curtail contact with semen and other infectious bodily materials, according to the court ruling.
“For the first time ever in California, Cal/OSHA’s Appeals Board has, in a formal trial of an appeal of several violations lodged against a California adult film company, overruled the appeal and upheld the citations and fines originally issued,” AHF President Michael Weinstein said in a news release.
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Treasure Island Media did not immediately respond to NBC4’s phone calls requesting comment.
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Weinstein said that Treasure Island has been outspoken in its opposition to condom use in its films, and that the company appealed the original citations it received and took its OSHA case to trial.
The media company, according to AHF, claimed the performers in their films were independent contractors -- meaning, the section of the regulations regarding bloodborne pathogens did not apply to the adult film industry.
“The get-out-of-jail card for porn producers has been that their performers are independent contractors, and therefore worker protection laws don’t apply to them,” AHF spokesperson Ged Kenslea said.
In most cases, producers just settle and pay their fines, he said.
Since 2009, AHF has filed complaints against 16 to 20 different porn producers -- gay and straight –
including Hustler, Vivid, Reality Kings and Bang Bros.
Cal/OSHA rejected Treasure Island’s appeal in a graphic 36-page ruling filed with the Department of Industrial Relations’ Los Angeles Legal Unit earlier this month.
Administrative Law Judge Mary Droyovage issued a broad rebuke to the adult film company and ruled that the issues found in the original citations -- including failure to establish exposure control to bloodborne pathogens and “other potentially infectious materials” (which include semen) and failure to observe universal precautions during production of films -- are “serious,” according to the ruling.
Droyovage found the violations to be serious because of a “substantial probability that employees would suffer serious exposure resulting in serious physical harm or death if violation occurred.”
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Weinstein said the Cal/OSHA ruling against Treasure Island is a milestone in three ways:
- “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.
- “It is the first time an adult film company cited (by Cal/OSHA) has gone to a full trial for appeal instead of settling, paying -- or ignoring -- its citations.
- “It is the first time an adult film company has lost in this precedent-setting court ruling.”
As a result of the ruling, Treasure Island will have to pay a fine of about $9,000 -- an amount Kenslea calls a “drop in the hat” for an industry as lucrative as porn.
Production in Los Angeles County’s profitable porn industry has dropped significantly -- 95 percent within a year -- since November 2012, after voters passed Measure B, which made condoms mandatory during film production in the county.
The AHF-sponsored measure was aimed at preventing the spread of sexually transmitted diseases within the industry’s actors.
Producers and actors within the industry have challenged the voter-approved law, saying that it infringes on actors’ First Amendment rights and is driving the industry out of Los Angeles and California, among other complaints.
In 2012, AHF kicked off a statewide campaign to take Measure B to Sacramento. Furthering the campaign, Assemblyman Isadore Hall, III (D-Los Angeles) in 2013 introduced Assembly Bill 332, a statewide law that would require condom use by all adult film performers in California.
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Kenslea told NBC4 on Sunday the bill has yet to gain traction, but has hopes it will be reintroduced later this year, citing the landmark decision as a step in the right direction.
Since Treasure Island appealed their citations, the recent Cal/OSHA ruling has set a precedent for the performers and producers, as a slew of worker protection laws must now apply to them.
Though AHF plans to to continue to follow its barrier protection campaign, Kenslea said the organization will not go as "full force” thanks to the judge’s plan to enforce worker protection laws.
