Quote:

Michael, if you don't mind, I'm curious. I used to work H/R both in officer and consulting capacities. Was the daily worker employee qualification based upon the federal test or a California state law?




Its a California standard.

Here's some case law on point from the Second District Court of Appeals which is all of Los Angeles and would encompass most of the adult entertainment business and its production.

260 Cal.Rptr. 67
Craig JOHNSON, Plaintiff and Appellant,
v.
BERKOFSKY-BARRET PRODUCTIONS, INC., Defendant and Respondent.

FACTS

Johnson, an actor in television commercials, obtained acting jobs through a company called L'Image. Generally, L'Image directed Johnson to the shooting location of the commercial and advised him how to dress. The commercial production company then paid L'Image for Johnson's acting services and L'Image, in turn, paid Johnson after deducting its percentage fee.

On December 3, 1985, L'Image sent Johnson to the filming of an I.B.M. commercial produced by BBP in Lacy Park in San Marino, California. In answer to an interrogatory Johnson described what happened during one of the takes of the commercial as follows: "The scene was a softball game and I played the pitcher. I was instructed to dive for a grounder, miss it, and ham it up. I dove for a ground ball, landing squarely on my shoulder, causing my injuried [sic]."

On July 16, 1986, Johnson filed a civil complaint for personal injury against BBP. Johnson admitted both in answers to interrogatories and at his deposition the director and assistant director of the commercial had supervised him and instructed him how to perform.

On or about June 25, 1987, Johnson filed a claim with the Worker's Compensation Appeals Board (WCAB) against BBP for injuries arising out of the accident.

BBP filed a motion for summary judgment on February 26, 1988, on the theory Johnson was a "special employee" of BBP and therefore limited to workers' compensation remedies for the personal injuries suffered while filming the commercial. [3]

In opposition to the motion for summary judgment, Johnson claimed he was not an employee of L'Image but had hired L'Image as an agent to obtain work for him. He concludes he could not be BBP's "special employee" because he had never been an employee of L'Image.

Page 1071

Although the parties have not supplied a reporter's transcript of the hearing on the motion for summary judgment, Johnson contends, and BBP does not dispute, that the trial court found Johnson's workers' compensation claim constituted an admission he was BBP's employee and granted summary judgment on that basis in favor of BBP.

CONCLUSION

Johnson's concession that BBP controlled and directed every aspect of his employment and our consideration of secondary determining factors renders Johnson an employee as a matter of law. As such, Johnson's exclusive remedy for his work related injury is workers' compensation.

I left out 90% of the decision, but you should get the idea. Johnson WANTED to be an independent contractor not an employee. Independent contractors, ie performers that contract a disease on set would actually be able to recover more damages than an employee performer because of punitives.

Michael
AdultBizLaw.com
_________________________
Michael www.AdultBizLaw.com