This came out today it is a MUST read for people in this biz.
Date of Hearing: April 2, 2014
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 1576 (Hall) – As Amended: March 26, 2014
SUBJECT: Occupational safety and health: adult films.
SUMMARY: Enacts specific requirements related to injury and illness prevention programs in the adult film industry, as specified. Specifically, this bill:
1) Defines “adult film” to mean any commercial film, video, multimedia, or other recorded representation during the production of which performers actually engage in sexual intercourse, as specified.
2) Requires an adult film employer’s injury prevention program to include a log of information for all scenes produced or purchased, including, but not limited to, documentation that:
a) Each time an employee performing in an adult film engaged in specified acts, personal protective equipment was used to protect the employee from exposure to bloodborne pathogens. This paragraph shall not be construed to require that the personal protective equipment be visible to the consumer in the finished film.
b) Each employee performing in an adult film was tested for sexually transmitted infections according to the recommendations of the Centers for Disease Control and Prevention and the State Department of Public Health current at the time the testing takes place, not more than 14 days prior to filming any scene in which the employee engaged in specified acts and that the employer paid for the test.
3) Makes conforming changes to existing law.
1) Requires every employer to establish, implement, and maintain an effective injury prevention program.
2) Requires the program to be written, except as specified, and to include certain elements, such as the employer’s system for identifying and evaluating workplace hazards and the employer’s system for communicating with employees on occupational health and safety matters.
3) Requires each employer having an employee with occupational exposure, defined as reasonably anticipated specified contact with blood or other potentially infectious materials that may result from the performance of an employee’s duties, to establish, implement, and maintain an effective exposure control plan designed to eliminate or minimize employee exposure.
4) Requires, under specified circumstances, the employer to provide, at no cost to the employee, appropriate personal protective equipment that does not permit blood or other potentially infectious materials to pass through to or to reach the employee, as specified.
FISCAL EFFECT: Unknown
COMMENTS: This bill addresses an issue that has garnered significant attention in recent years among public health officials, occupational safety and health officials, and interested stakeholders – how best to protect workers and performers in the adult film industry from exposure to bloodborne pathogens and other potentially infectious materials.
This Committee conducted an informational hearing on this topic in June 2004.
An analysis prepared by the Assembly Committee on Arts, Entertainment, Sports, Tourism and Internet Media on a related prior bill provided the following summary of the nature of the concern:
“According to information submitted by the bill’s supporters, “The US adult film industry (AFI) produces 4,000 to 11,000 films and earns an estimated $9 to $13 billion in gross revenues annually. California is the largest center for adult film production worldwide, although adult film production occurs throughout the United States. An estimated 200 production companies in Los Angeles employ up to 1,500 workers.
The supporters and opponents of this measure provided the committee with voluminous and often contradictory statistics about the incidence of STDs in the AFI, and the threat that exists for performers in being exposed to these pathogens. There is consensus however, that a number of highly publicized events surrounding outbreaks of the HIV virus within the community of adult performers raised the public profile of this intra-industry issue, and have drawn the attention of various regulatory bodies. A brief recitation of these events includes a 1980′s outbreak which led to a number of deaths and led to the current system of testing within the industry. Another outbreak in 2004 saw three actors test positive for HIV, and resulted in a voluntary month long shut down of the industry. In both 2009, and 2010, one person was discovered to be infected by the industry testing process, however according to a Los Angeles Times story, LA County Public Health officials believe unreported incidents may be as high as 16 in 2009.
Outbreaks such as those detailed above have drawn concern from many quarters, including the American Public Health Association, who wrote the following in their position paper entitled: Prevention and Control of Sexually Transmitted Infections and HIV Among Performers in the Adult Film Industry.
‘The industry’s method for responding to outbreaks of STDs and HIV among performers in the heterosexual segment of the industry is voluntary STD/HIV testing. Although testing can contain the spread of disease, it does not prevent its spread. Another limitation in the industry’s use of STD/HIV testing is the time period in which tests are conducted. The current industry practice is to test performers every 30 days; however, a performer could be exposed to an STD infection immediately after testing, have no symptoms, be highly infectious, and unknowingly transmit the infection to others. The
30-day testing requirement is not consistent with incubation periods for most STDs and may therefore miss detection of disease.
‘Despite repeated recommendations from local public health officials, Cal/OSHA, and a Legislative hearing on how to make the AFI safer, industry practices remain unchanged. … Flagrant violation of other Cal/OSHA worker protections remains. Performers must still pay all STD screening tests – a violation of Cal/OSHA standards, which requires the employer to pay for medical monitoring. Further, to work, performers must take an STD/HIV test and furnish test results to their employer (production company) who posts and shares these results with other production companies in a database to which production companies and talent agencies subscribe. Performers with a negative test result can work, and those who are positive cannot work until they receive a negative test. This practice violates a worker’s right to medical confidentiality and is not consistent with the Cal/OSHA Blood-borne Pathogen Standard, which requires employers to maintain a confidential medical record for each employee.’ American Public Health Association Policy Statement 20102, 11/9/2010.”
The industry has implemented voluntary compliance with existing requirement for employers to have an exposure control plan to minimize the risk of employee exposure to blood-borne pathogens. Specifically, the Adult Protection Health and Safety Services (APHSS) has adopted an industry-specific Blood-borne Pathogens Exposure Control Plan.
APHSS testing protocols require each performer to submit to regular testing for STDs, including HIV. According to information supplied last year by APHSS, performers must be tested at a minimum of every 28 days1, and must take a blood test for HIV (by “PCR RNA” Aptima) and Syphilis (TREP-SURETM) cascading to RPR, and a urine test for Gonorrhea (by “ultra-sensitive DNA amplification”) and Chlamydia (by “ultra-sensitive DNA amplification”). Following the results of these tests, the performers are listed as “Available” or “Unavailable” to work on an APHSS database. Additional testing is recommended for performers new to the industry, and includes specific recommendations for female performers.
The Existing State Law Bloodborne Pathogen Standard
The regulations covering occupational health and safety require employers to develop and implement an Illness and Injury Prevention Program (IIPP, Title 8 of the California Code of Regulations § 3203). Where the work environment includes risk of disease transmission, the Division of Occupational Safety and Health (DOSH) has required employers to address control methods in their IIP. Many industries develop industry-wide IIPPs that individual businesses can follow in good faith and be deemed in compliance with the regulation.
DOSH also regulates workplace exposure to blood and other potentially infectious materials controlled by employers through an existing bloodborne pathogen standard (Title 8 of the California Code of Regulations § 5193).
1 However, there are indications that the industry’s current protocol is for testing every 14 days.
Among other requirements, the existing standard provides the following with respect to personal protective equipment:
“Where occupational exposure remains after institution of engineering and work practice controls, the employer shall provide, at no cost to the employee, appropriate personal protective equipment such as, but not limited to, gloves, gowns, laboratory coats, face shields or masks and eye protection, and mouthpieces, resuscitation bags, pocket masks, or other ventilation devices.”
Some have argued that this existing standard, as applied to the adult film industry, would therefore already require the provision of condoms or similar barrier protections.
Current Petition Before the OSHA Standards Board
On December 17, 2009, the AIDS Healthcare Foundation (AHF) submitted a petition to the OSHA Standards Board seeking an amendment to the bloodborne pathogen standard specific to the adult film industry. In its petition, AHF proposed that the standard be amended to add a new subsection that would clarify required protections for workers in the adult film industry who are exposed to bloodborne pathogens and sexually transmitted diseases. AHF asserted that, although the existing standard provides protection for employees in the adult film industry, the amendments and enhanced enforcement are called for because there is an epidemic of sexually transmitted disease in the industry and the industry refuses to protect its workers from exposure to potentially infectious materials by requiring the use of condoms and implementing other control measures.
It has been reported that since the petition was filed in 2009, the OSHA Standards Board has held a number of advisory meetings, resulting in the circulation of draft language in June 2011. On October 24, 2013, the OSHA Standards Board released a revised draft for circulation. An email announcement accompanying the revised draft stated, “The Division has edited the previous draft, which was provided in June 2011. This draft has been sent to the Board staff for their review. It is not a rulemaking proposal at this time.” (Emphasis provided).
The draft language would establish a new standard Section 5193.1 specific to sexually transmitted infections, and would cover “all workplaces in which employees have occupational exposure to bloodborne pathogens and/or sexually transmitted pathogens due to one or more employees engaging in sexual activity with another individual.” Among other things, the draft language would require an employer to provide all safeguards required by the proposed section, “including barriers, personal protective equipment, training, and medical services, at no cost to the employee, at a reasonable time and place for the employee, and during the employee’s working hours.”
Prior Enforcement Actions
Since 2006, DOSH has issued several workplace safety citations and fines to numerous adult film producers and distributers, including: Next Phase Distribution, Inc. (2006); Evasive Angles and TTB Productions (2006); La Touraine, Inc. (Jan. 15 2009); Hot Desert Knights, Inc. (Mar. 24, 2009); Discount Video (Feb. 18, 2009); Hot House Entertainment (June 27, 2008); HDK Distribution (Oct. 3, 2008); Anthony Gladdney d/b/a MVP Entertainment Co. (Mar. 26, 2010); and Media Products, Inc. (June 9, 2010).
In August 2009, the Aids Health Care Foundation (AHF) filed workplace safety complaints under DOSH against 16 California-based adult film companies, including complaints against Larry Flynt’s Hustler Video. AHF’s complaints asserted that the films demonstrate unsafe and potentially life-threatening behavior in a California workplace, as the sexual acts were filmed without performers using condoms and depicted the unprotected exchange of bodily fluids.
On March 21, 2011, DOSH issued three citations to Larry Flynt’s Hustler Video for workplace safety violations, including the following:
? Violation of Title 8 CCR § 3203. Injury and Illness Prevention Program. Failure to establish, implement, or maintain a written Injury and Illness Prevention Program (IIPP) which met OSHA standards for performers who were exposed to hazards in the course of producing adult videos.
? Violation of Title 8 CCR § 5193(c)(1)(A). Bloodborne Pathogens Program, Exposure
Control Plan. Failed to establish, implement or maintain all the required elements of a written Exposure Control Plan for performers who had reasonably anticipated contact with “other potentially infectious materials” (OPIM), in the course of producing adult films.
? Violation of Title 8 CCR §5193(d)(4)(A). Bloodborne Pathogens Program, Personal Protective Equipment. Failure to ensure the use of appropriate personal protective equipment, such as condoms, to performers who had reasonably anticipated contact with “other potentially infectious materials” (OPIM), in the course of producing adult films.
On April 6, 2011, Larry Flint’s Hustler Video filed an appeal of the citations. The appeal was reportedly settled in a closed session hearing on February 6, 2012.
DOSH Activity and Employee/Independent Contractor Issues
One of the difficulties faced by DOSH in enforcing the existing standard relates to whether the adult film performers are employees or independent contractors. DOSH generally has jurisdiction over occupational health and safety issues only as they relate to employees. Some of the prior citations issued by DOSH were challenged by adult film companies on the grounds that the performers were independent contractors rather than employees, and that therefore DOSH had no jurisdiction.
On March 25, 2010, DOSH issued a series of citations against Treasure Island Media, Inc. (TIM), an adult film production and distribution company. Among other things, the citation alleged that TIM failed to develop an injury or illness prevention program and failed to establish
an exposure control plan under the bloodborne pathogen standard. TIM appealed the citations and argued, among other things, that (1) there was no employment relationship because the performers were independent contractors rather than employees, and (2) that the bloodborne pathogen standard did not apply to the adult film industry.
On January 6, 2014, an Administrative Law Judge (ALJ) issued a decision in the case. After examining the evidence and the legal tests applicable for determining employee/independent contractor status, the ALJ concluded that the production crew and participants hired by TIM were employees and not independent contractors: “Examining the facts in this case, a preponderance of the evidence established that TIM controlled the work of the participants2.”
TIM also challenged whether the bloodborne pathogen standard applied to the adult film industry, arguing that it was enacted in reaction to the HIV/AIDS crisis and its focus was healthcare workers. However, the ALJ concluded that the standard applies to all workplaces (except those in the construction industry which are specifically excluded) where employees are exposed to blood or other potentially infectious materials.
TIM has appealed the ALJ’s decision to the full OSHA Appeals Board, so the final outcome of the appeal is still pending.
In addition, while the ALJ’s decision in the case (especially with respect to employee and independent contractor status) is significant, it should not be overstated. Determinations of employee/independent contractor status are very fact-specific analyses and vary from situation to situation. Therefore, whatever the final outcome of the TIM case, other adult film producers and distributors are likely to argue that the facts of their situation are distinct and different from the TIM case, and will likely continue to argue that their participants or performers are independent contractors rather than employees.
County of Los Angeles Measure B
On November, 12, 2012, Los Angeles County citizens approved the County of Los Angeles Safer Sex in the Adult Film Industry Act (“Measure B”) initiative by a 57-43% margin. Measure B requires the use of condoms for specified acts during the production of adult films. It is reported that nearly 90 percent of all legally distributed adult films made in the United States are filmed in Los Angeles County.
Measure B is enforced by requiring individual adult film producers or adult film production companies to obtain public health permits issued by the Los Angeles County Department of Public Health (“Department”). In absence of such permit, individual producers and film production companies cannot film adult films. Before an individual or production company can retain such permit, the individual must complete a blood pathogen training course approved by the Department. In the case of a company, all principals and management level employees, including film directors, must complete the course. An application fee for the permit must also be paid.
2 In the Matter of the Appeal of Treasure Island Media, Inc., Dockets 11-R6D1-1093 through 1095 (January 6, 2014).
After completion of the course, the individual or production company is issued a health permit that is valid for two years. Measure B requires the public health permit to be displayed at all filming locations and clearly visible to adult film performers. The permit also requires that a legible sign be displayed, in no less than 36 font, that states “the use of condoms is required for [specified acts] during the production of adult films . . . any public health concerns regarding any activities occurring during the production of adult films should be directed to the Los Angeles County Department of Public Health.”
Permit—Suspension, Revocation and Fines
The public health permits issued to adult film producers may be revoked or suspended by the Department for any violation of Measure B or any violation of law that creates a risk of exposing performers to sexually transmitted infections. Measure B explicitly states that the failure of an adult film producer to require performers to use condoms during specified acts is a violation its provisions.
If the Department determines that a violation has occurred, a written notice to comply is issued to the permit holder. The permit holder has fifteen days to request an administrative review; the failure to do so is a waiver of the right to an administrative review. Within five days of the administrative review or waiver, the Department must issue a written a notice of decision specifying the penalties imposed on the permit holder and, if the permit is to be suspended or revoked, terms upon which the permit may be reinstated or reissued, if any (emphasis added). After the administrative review, the Department may modify or continue their disciplinary action. A permit may also be reissued or reinstated if the Department determines that the conditions leading to the permit suspension or revocation is corrected.
The Department also has the ability to immediately suspend the permit, impose any fines permitted by the measure, or initiate a criminal complaint if any immediate danger to the public health or safety is found or is reasonably suspected. The Department must issue to the permit holder a written notice to comply setting forth the acts or omission with which the permit holder is charged. The permit holder may correct the deficiencies noted and request a re-inspection when the producer is actually filming. The Department has discretion to reinstate or modify its earlier action after re-inspection.
Compliance, Enforcement, and Operations
Measure B also imposes civil fines on individuals who violate the act and makes it misdemeanor for willfully non-compliance of its provisions. In regards to civil penalties, Measure B gives the Department discretion to impose fines up to five-hundred dollars per violation on individuals who violates its provisions. For a criminal offence to be found, an individual or entity is guilty of a misdemeanor if he or she violates any of Measure B’s provisions, produces or films adult films for commercial purposes without a valid permit, or willfully refuses or neglects to conform to a county health officer’s lawful order or directive attempting to enforce Measure B. An offence is either punishable by a fine up to $1,000, imprisonment not exceeding six months, or a combination of the two.
A civil action to enjoin a person or entity from filming in violation of Measure B may also be brought by the county’s counsel, the district attorney, or any person directly related to the failure of the person or entity from conforming to Measure B’s provisions.
Finally, Measure B requires producers of adult films to provide a written exposure control plan, approved by the Department, describing how requirements of Measure B will be enforced.
Related Ordinances in Other Jurisdictions
During and following the adoption of Measure B, and after concerns were expressed that adult film producers were moving production out of Los Angeles County to avoid the reach of the measure, several neighboring jurisdictions moved to enact similar ordinances. In April 2012, the Simi Valley City Council approved an ordinance requiring the use of condoms in adult film production. In May 2013, the Ventura County Board of Supervisors unanimously passed a similar ordinance. Prior to this, the City of Camarillo enacted a moratorium on the issuance of film permits for adult film production, and recently acted to extend that moratorium for an additional year.
Current Legal Challenges to Measure B
Attorneys for the adult film industry filed a complaint in January 2013 in the United States District Court, Central District of California seeking an order enjoining and restraining Los Angeles County from enforcing Measure B. Similar complaints were filed by other filmmakers as well as individual performers. Among other things, the complaints allege that Measure B violates the First Amendment right to the freedom of speech, the Fourteenth Amendment right to due process, and is preempted under California state law.
The court allowed the official proponents of Measure B to join the case as interveners, and they filed a motion to dismiss the lawsuit. At the same time, the industry asked for a preliminary injunction to prevent Measure B from being implemented.
On August 16, 2013, District Court Judge Dean Pregerson issued a mixed decision. The court dismissed industry arguments that a ballot initiative cannot implicate First Amendment rights, that state law preempts Measure B, and that Measure B violates their due process rights (with the exception of Fourth Amendments claims related to search and seizure). However, the court refused to dismiss industry prior restraint claims that Measure B does not provide sufficient procedural safeguards, does not have narrowly tailored requirements, and gives the County of Los Angeles unbridled discretion.
One legal commentator3 described the ruling as follows:
“In his 34-page ruling, Judge Pregerson handed partial victories to the pornographers and to the Foundation.
Pregerson agreed with the filmmakers that provisions to enforce the law are too sweeping – including powers to revoke permits, conduct warrantless searches of film sets and charge fees for permits. But Pregerson said the condom law would help protect against
3 Reynolds, Matt. “Pornographers Seek to Overturn Condom Law.” Courthouse News Service (August 20, 2013).
sexually transmitted diseases in a ‘direct and material way.’
Finding the pornographers’ First Amendment claim ‘unlikely to succeed on the merits,’ Pregerson denied a preliminary injunction on that issue.
The ruling cites data from the Department of Public Health showing an increased risk of infection from sexually transmitted diseases among porn actors, including chlamydia and gonorrhea. The adult film industry claims it protects its performers by regularly testing for STDs. But Pregerson said the data introduced by the AIDS Healthcare Foundation told a different story. The filmmakers ‘by contrast, have presented evidence from individuals in the adult film industry, but not in the public health or medical profession, who claim testing is so effective and universal that condoms are unnecessary,’ Pregerson wrote.
But Pregerson found that a permit fee of $2,000 to $2,500 could be unconstitutional because the AIDS Healthcare Foundation failed to show those fees cover only ‘revenue-neutral’ administration costs. The judge was skeptical of a provision that lets the county revoke a producer’s permit without judicial review. He also found the county should not conduct warrantless searches of porn sets to determine whether producers are violating the law.
That left the question of whether Measure B, stripped of those provisions, will be as effective. Pregerson said that with some tweaking the county can still enforce the law. ‘Here, adult film actors must still use condoms. A permit is still required. Although the permit may not be modified, suspended, or revoked, fines and criminal charges may still be brought against offenders,’ Pregerson wrote. ‘While administrative searches cannot occur, nothing prevents law enforcement from obtaining a warrant to enforce Measure B.’
On fees, the judge saw ‘no reason to believe the Department’s Measure B duties cannot be performed without fees – or performed at least until the fees’ defect is cured, either by enacting a new, constitutional ordinance or providing this court with evidence of revenue neutrality.’
The plaintiffs appealed the court’s ruling to the Ninth District Court of Appeals, which heard oral argument in the matter on March 3, 2014. A decision from the Court of Appeal is pending.
Recent Media Reports on Industry Impact of Measure B
According to recent media reports, the number of film permits issued to adult film producers decreased by 95 percent in Los Angeles County following the enactment of Measure B. As of November 19, 2013, only 24 permits for adult films had been filed in Los Angeles County, compared with 480 filed in the same period in 20124. Other media reports have indicated that adult film production may have shifted to other jurisdictions5 to avoid the reach of Measure B, including to Las Vegas, Nevada6.
4 Miles, Kathleen. “LA Porn Industry Disappears After Condom Law.” Huffington Post (November 19, 2013).
5 Also see the discussion above about related ordinances and other measures in neighboring jurisdictions.
6 Dreier, Hannah. “Porn Production Moves to Vegas After LA’s Condom Law.” Associated Press (January 1, 2014).
Critics of Measure B contend that these reports confirm predictions that the measure would drive the industry out of Los Angeles County or underground (continuing to operate in Los Angeles County but not in compliance with Measure B or other requirements).
ARGUMENTS IN SUPPORT:
The author states the following in support of this bill:
“Adult film production is a multi-billion dollar industry. California based production of adult films account for the vast majority of this business, employing thousands of Californians and generating millions of dollars in tax revenue.
Workers in agriculture, food service, healthcare, construction and many other industries benefit from stringent work place safety requirements that keep workers’ compensation costs down and ensure a safe environment to earn a living. The adult film industry, given the type of work required, disproportionately exposes actors to a range of health and safety risks. The industry is largely self-regulated and has done an inadequate job of protecting its employees from disease infection.
According to the Los Angeles Department of Public Health (Department), workers in adult films are ten times more likely to be infected with a sexually transmitted disease (STD), such as HIV, than the population at large. In 2013, there were up to five documented HIV transmissions of adult film actors, leading to three separate self-imposed yet unenforced production moratoriums.
The result of this unsafe work environment is a public health crisis that would be preventable if reasonable steps were taken to protect these employees in the workplace.”
Therefore, the author argues that this bill will require adult film industry employers to ensure that personal protective equipment is used during the production of an adult film. The bill also clarifies that employers must pay for mandatory STD testing of each actor and that adult film actors must be tested for STDs at least every fourteen days. While the bill requires use of personal protective equipment in adult films, it does not require personal protective equipment to be visible in the film’s final product. The author concludes that this bill will provide statewide uniformity needed to ensure that the thousands of actors employed in this multi-billion dollar industry are given reasonable workplace safety protections needed to reduce exposure to HIV and other communicable diseases.
The AIDS Healthcare Foundation supports this bill, stating the following:
“The adult film industry accounts for thousands of workplace disease infections in California every year. During the production of adult films, workers, including but not limited to performers, are exposed to a number of sexually transmitted diseases. While these exposures fall under California’s regulatory definition of ‘bloodborne pathogens,’ the statute that directs the execution of worker safety protections is unclear about the obligations of adult film employers to document their adherence to the law.
At any given time, there are approximately 2000-3000 Californians who are employed as performers, but the roll call of performers is constantly shifting. The Los Angeles Department of Public Health has documented an epidemic of sexually transmitted diseases among workers in the adult film industry. It attributes the epidemic to a variety of high-risk acts which workers are required to engage in, and to a lack of protective equipment for performers, including condoms.
LADPH estimates that condoms and other protection are used in less than 20% of hardcore heterosexual adult film. And in a study of STDs in the Los Angeles adult film industry…published last December in Sexually Transmitted Diseases, researchers found that consistent use of condoms on set was as low as 1%. Aggravating the situation is the tragic decision by some producers in the gay adult film industry to abandon decades of condom-only production in favor of films in which no protection is afforded to the performers.
According to LADPH, workers in the adult film industry are ten times more likely to be infected with a sexually transmitted disease than members of the population at large. Also, the study noted above found that 2/3 of the female study subjects and 1/3 of the male subjects had an STD, vastly exceeding the STD rates in the general population, and that 69% of them had worked in an adult film in the previous 30 days.
The adult film industry has steadfastly refused to take appropriate steps to protect its workers from diseases spread by bloodborne pathogens. Therefore, [this bill] defines without ambiguity the records that must be kept by the employer to document compliance with the requirements that condoms and other protective barriers have been used in any scene in which exposure to bloodborne pathogens might occur and that employees performing in scenes are tested for STIs frequently.”
In addition, the California Medical Association (CMA) supports this measure and states, “CMA has long been engaged in efforts to prevent the spread of and to encourage early detection and treatment of HIV. [This bill] is an important public health bill that aligns with that historic body of work. Adult entertainment workers are at high risk for being infected with a sexually transmitted disease. Requiring the use of condoms and STI testing are common-sense ways to decrease spread of disease.”
ARGUMENTS IN OPPOSITION:
Manwin USA, a leading information technology firm specializing in adult content websites, opposes this measure, which it characterizes as a “misguided effort to expand” Measure B adopted in Los Angeles County. They contend that this bill raises some of the same constitutional issues at issue in the pending litigation over Measure B:
“Most provisions of Measure B have already been held unconstitutional and the constitutionality of the remaining provisions are currently before the Ninth Circuit Court of Appeals (Vivid Entertainment, LLC v. Fielding, et al.). The Ninth Circuit heard oral arguments on these remaining issues on March 3, 2014, and will likely issue its ruling on the matter sometime in the next several months. It is our understanding that the pattern and practice of the Legislature is not to interfere with pending litigation. Accordingly, we request that you reject this measure as premature.”
Similarly, counsel for Vivid Entertainment, LLC states the following:
“Although the amended version of [this bill] stripped out certain requirements, the remaining provisions still raise the same core constitutional infirmities being addressed by the Ninth Circuit in Vivid Entertainment, LLC v. Fielding et al. The additional requirement of a government mandated testing program not only fails to alleviate these constitutional concerns, but, in fact raises substantial additional ones…Given the overlapping legal issues raised by both Measure B and [this bill], Vivid Entertainment respectfully requests that the Legislature forgo any action until litigation has concluded.”
The Valley Industry and Commerce Association (VICA) opposes this measure and states:
“This bill is clearly fueled by alternative motives to force the adult film industry out of California. Yet, this six billion dollar industry generates millions in state and local tax revenues annually. Adult film production is also responsible for a sizeable number of jobs in the San Fernando Valley and Los Angeles County, including sound technicians, propmasters, constumers and craft services that would otherwise be out-of-work due to runaway mainstream film production. These jobs have depleted since the passage of Measure B, L.A. County’s version of this legislation; a statewide mandate will be the final straw.”
Manwin USA raises similar concerns about the potential job and economic impact of this measure, stating the following:
“Where the impact of [this bill] will be felt the most is on small businesses and the thousands of workers who work directly or indirectly for California’s adult entertainment industry. Adult film production in California directly employs thousands of actors, directors, camera operators, gaffers, and other tradespeople and support staff. In addition, there are countless jobs indirectly generated from production, with recent data showing that for each direct job we create, approximately 3 other jobs are created indirectly.
Regardless of whether or not one watches or condones adult films, the industry is responsible for billions of dollars of economic activity in the state, the bulk of which is generated in and around the San Fernando Valley, San Diego, and San Francisco…Now, [this bill] seeks to push adult film productions out of state.
Proponents of [this bill] argue, without any factual support, that this won’t occur, but the numbers tell a much different story.
Since the passage of Measure B, film permits dropped in Los Angeles County from 456 to 24 during the same time period last year. This represented a revenue drop in film permits alone of $450,000, not to mention the millions of dollars lost by those ancillary businesses serving the Los Angeles County adult film productions. Fortunately for California, the scope of the job and revenue loss was mitigated by the local nature of Measure B, as many businesses were able to stay in business by following the productions outside of Los Angeles County. However, not all of the businesses that moved out of Los Angeles County stayed in California. Numerous productions jumped state lines to Nevada, where Las Vegas now represents the fastest growing adult film
location in the country. Were [this bill] enacted, and restrictions placed on filming anywhere in California, defections would accelerate rapidly.”
Other opponents to this measure argue that current industry protocols not only work, they work well. They argue that any legislation that would diminish current industry protocols will not only put performers at risk, but also destroy an extremely effective HIV and STI prevention program. For example, the Free Speech Coalition states, “Currently, the adult movie industry does not require any performer to engage in filming with an HIV-positive individual. The industry adopted the blood borne pathogen plan [BBP) in which EVERY performer is required undergo advanced and regular testing for HIV or wear condoms. Under industry testing protocols, all producers and/or directors require performers to confirm a current negative test panel prior to shooting. Each performer is also entitled to receive confirmation that her partner has current negative test results, thereby protecting EVERY performer from the risk of transmission. The testing protocols are based on recommendations of medical experts. In large part due to the testing protocols, there has not been a single reported incident of on-set transmission in ten years."
PRIOR RELATED LEGISLATION:
AB 332 (Hall) from 2013 required employers engaged in the production of adult films to adopt specified practices and procedures related to protection from sexually transmitted diseases. Among other things, AB 332 required an employer to maintain engineering and work practice controls sufficient to protect employees from exposure to blood and any potentially infectious materials, including the use of condoms and other protective barriers. AB 332 was held under submission in the Assembly Appropriations Committee.
Subsequently, language virtually identical to AB 332 was amended into AB 640 (Hall) in the Senate. AB 640 was referred to the Senate Rules Committee, where it is still pending.
COMMITTEE STAFF COMMENTS:
1) Double Referral
This bill is double-referred to the Assembly Committee on Arts, Entertainment, Sports, Tourism and Internet Media.
2) Employee/Independent Contractor Issues
As mentioned above, a major obstacle to DOSH's previous enforcement actions under the existing bloodborne pathogen standard has been the assertion by adult film production companies that the individual performers are independent contractors, rather than employees, and that therefore DOSH has no jurisdiction. AB 332 from last year attempted to resolve this difficulty by defining an "employee" to mean an employee or independent contractor, thereby statutorily providing that the bill's requirements applied to such individuals regardless of their status as employees or independent contractors.
This bill is limited to the DOSH context, where jurisdiction is generally limited to occupational health and safety issues only as they relate to employees. As discussed above, an OSHA Appeals Board ALJ recently concluded that the production crew and participants hired in one
case were employees and not independent contractors. However, as cautioned above, determinations of employee/independent contractor status are very fact-specific analyses and vary from situation to situation. Other adult film producers and distributors are likely to continue to argue that the facts of their situation are distinct and different from the prior case, and will likely continue to argue that their participants or performers are independent contractors rather than employees.
3) Other Related Issues Raised in Last Year's AB 332
Some opponents of AB 332 from last year expressed concerns that the bill may have resulted in a situation where an individual who tests positive may have a claim under reasonable accommodation provisions of the Americans with Disabilities Act or the Fair Employment and Housing Act that they are entitled to employment, regardless of the safety concerns of other performers.
For example, last year the Free Speech Coalition stated the concern as follows:
"Currently, the adult movie industry does not require any performer to engage in filming with an HIV-positive individual. The industry adopted the blood-borne pathogen plan (BBP) in which EVERY performer is required undergo advanced and regular testing for HIV or wear condoms. Under industry testing protocols, all producers and/or directors require performers to confirm a current negative test panel prior to shooting. Each performer is also entitled to receive confirmation that her partner has current negative test results, thereby protecting EVERY performer from the risk of transmission. The testing protocols are based on recommendations of medical experts. In large part due to the testing protocols, there has not been a single reported incident of on-set transmission in over eight years.
Unfortunately, [this bill] will abandon this testing protocol, leaving performers without the ability to identify the status of their sexual partners. Instead, performers will be forced to engage in sexual activity with individuals who are HIV positive; a significant rollback of the industry’s health and safety plan. According to the FDA, the proper use of condoms still carries a risk of transmission. Therefore, [this bill] will actually put performers in greater risk of infection than under the industry’s own standards; currently, a performer is notified of his or her positive test BEFORE any sexual contact and the positive performer is prohibited from participating in a movie shoot.”
The analysis prepared last year by the Assembly Committee on Arts, Entertainment, Sports, Tourism and Internet Media also quoted the following concerns from a recent editorial:
“Condoms undeniably help lower the risks of HIV infection. But that doesn’t mean the government should mandate condom use in adult movies – and it certainly doesn’t mean that such regulation is a good idea… Nor would adult film producers be allowed to ‘discriminate’ by refusing employment to HIV-positive performers. As a result, untested and HIV-positive performers would be able to work in the industry, raising the risks of HIV outbreaks…”7
7 Padilla, Alexandre. “Not-So-Safe Sex.” Forbes.com (December 7, 2009).
Last year, the sponsor of AB 332 responded to these concerns as follows:
“[This bill] does not change current law; DOSH is already enforcing the bloodborne pathogen standard in adult filmmaking. As far as we know, there has not been a single case of employment discrimination brought against an adult producer by a person with HIV or another STD who has been refused employment as a performer in an adult film. We cannot predict what a court might conclude if there ever is a situation in which an adult film producer asserts that a person’s HIV or STD status is a medical condition that might endanger the health and safety of the performer or others (pursuant to Government Code 12940) and prevents that person from performing. We cannot predict whether a court would find that the use of a condom or other protective barrier constituted a reasonable accommodation. But again, a case like that could happen now, and [this bill] does not impact that possibility.”
It is worth noting that the Fair Employment and Housing Act provides that the prohibition against discrimination based on disability or medical condition “does not prohibit an employer from refusing to hire or discharging an employee who, because of the employee’s medical condition, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.” (Government Code Section 12940 (a)(2))(Emphasis provided).
This is similar to the “direct threat” defense under the federal Americans with Disabilities Act (ADA) which provides that an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that employment of the individual would pose a “direct threat.” The EEOC’s ADA regulations explain that “direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
4) Recent Amendment Regarding “Purchased” Scenes
The most recent set of amendments to this bill provide that an adult film employer’s injury prevention program shall include specified information for all scenes produced “or purchased.” The author’s office indicates that this amendment is intended to make an adult film employer responsible for providing certain information related not only to scenes they produce themselves, but scenes that may have been produced by another individual or entity and purchased by the adult film employer for distribution.
Opponents have raised a series of additional concerns about this specific amendment to the bill with committee staff, but at the time of preparation of this analysis were still analyzing the amendment and its implications. However, opponents did provide a brief initial response as follows:
“The amendment appears to impose burdensome recordkeeping requirements not only on the employer, but also on each entity in the upstream chain of commerce, regardless of the fact that they have no additional knowledge or information regarding the underlying employer/employee relationship. Not only is it unprecedented for an upstream purchaser in this context to be required to keep records of downstream worker safety, but as a practical matter, this will be very costly, complicated, and burdensome to implement.
Many ‘scenes’ are licensed to hundreds of different sites and/or distributors (i.e., those who ‘purchase scenes’). Under the proposed amendment, each will have to maintain detailed records about the shoot, about which they have no actual knowledge, and which raise serious and complex privacy and compliance concerns (with respect to various state and federal privacy and healthcare laws). Such concerns are heightened and compounded given that many of those who ‘purchase scenes’ are not large sophisticated operations, but small businesses, who may not have the expertise to manage and protect sensitive information, such as documentation of medical testing.
In addition, the record keeping provisions would be subject to additional Constitutional challenge, regardless of the outcome of the Ninth Circuit’s consideration of Vivid v. Fielding. As the record keeping requirements are limited to ‘adult film employers,’ and ‘adult films’ are defined in the statute based upon content, they are considered content-based restrictions, and are subject to higher constitutional scrutiny. The breadth of the amendment’s requirements, particularly targeting those who have no independent knowledge of facts, cannot meet intermediate scrutiny, let alone strict scrutiny.”
REGISTERED SUPPORT / OPPOSITION:
AIDS Healthcare Foundation
American Congress of Obstetricians and Gynecologists
California Academy of Preventive Medicine
California Communities United Institute
California Employment Lawyers Association
California Medical Association
California Public Health Association-North
California State Association of Occupational Health Nurses
Fielding School of Public Health, UCLA
National Coalition of STD Directors
Planned Parenthood Affiliates of California
Professor Jeffrey Klausner of Medicine and Public Health, UCLA
Cutting Edge Testing
Free Speech Coalition
Sean Darcy, MD Professional Corporation
Valley Industry and Commerce Association
Vivid Entertainment, LLC