Pornographic Performers May Be Employees, Too: Potential Misclassification of Workers in the Adult Film Industry

With the widespread popularity of the recent Rashida Jones-produced documentary Hot Girls Wanted, the adult film industry—and the potential exploitation of the models involved in it—has been subjected to heightened media coverage (link: http://news.yahoo.com/rashida-jones-talks-amateur-porn-industry-documentary-with-katie-couric-203552949.html). One potential avenue of as-yet unexplored territory, however, is the potential misclassification of models in the adult film industry as 1099 independent contractors. Two agency decisions holding that certain pornographic performers were misclassified as independent contractors suggest that the adult film industry may be the latest field to show a trend of workers challenging their independent contractor misclassification status, joining employees ranging from exotic dancers to FedEx drivers.

In the first ruling of its kind, in January 2014, Cal/OSHA’s Appeals Board ruled that pornographic performers in California are employees, not independent contractors, and, as such, are covered by occupational safety and health standards, including those that require employers to establish an “exposure control plan” regarding exposure to potentially infectious materials such as blood and semen. The court found that the employer controlled the work of the participants—the most important factor in determining whether a worker is an employee or an independent contractor—based on such facts as: (1) the employer screened the participants according to their sex act preference and excluded them if they were not willing to do the act in question; (2) the employer rented the set for the shoot, hired the camera and lighting crew, directed the scenes, and arranged the schedule of the shoots; and (3) the employer edited and produced the final product. The court found that other secondary factors also weighed in favor of employee status, including the fact that the participants were paid only for their participation and had no ability to share in the profits from the sales of the materials; the fact that the work in question involved no special skill; and the fact that the work of the participants—adult films featuring sexual performances—were an integral part of the employer’s business. Accordingly, the employer in question, Treasure Island Media, was liable for violating certain OSHA regulations stemming from the unprotected sex depicted in its films.

Similarly, adult film models have also been deemed employees in the workers compensation context. On August 19, 2008, the California Court of Appeal denied a writ in Deupree v. Workers’ Comp. Appeals Bd. (Doe), 2 Cal. WCC 1025 (2008), which found that the pornographic performer in question was an employee because the employer “controlled all meaningful aspects of the business relationship and had primary power over work safety, including the types of HIV tests for performers, the collection of test results, the use of condoms, and the direction of filming.” Rejecting the employer’s arguments that the model was “key talent who retained input and control over the filming in which the actors improvised without a set script)” and despite the fact that the model had negotiated the terms of her contract, the model in question not deemed to be an independent contractor, such that she was able to recover for the fact that she had contracted the HIV virus while filming a film produced by her employer.

This distinction between independent contractor and employee is important for workers in the adult film industry because, although true independent contractors are not entitled to expense reimbursement or other protections of federal or California employment laws, misclassified employees are entitled to a host of protections under California law, including (1) expense reimbursement for all business expenses and (2) the protections of the occupational health and safety laws. For example, many employers require regular STD testing but mandate that adult film performers bear the significant cost of that testing. If adult film performers are misclassified, their employers would no longer be permitted to pass on that cost to the performer.

If you are a model in the adult film industry and believe you have been misclassified as an independent contractor, you should consult with an attorney about your legal rights.