Gene Ross posts:

" Porn Valley- Whether former porn performer Brooke Ashley [aka Fantasia, China Lakke, Anne Marie, Tae] will be eligible for worker's comp or not will be determined when Judge Lisa A. Sussman renders a decision on December 4.

According to an AVN story, the worker's compensation case known as "Doe 43" involving Ashley will be completed by then. Sussman is a judge of the California Workers Compensation Appeals Board.

Writer/director Cash Markman was the final witness this week to answer questions posed by Ashley's attorney Elliot Berkowitz.

In 1998 Ashley was one of several porn stars including Tricia Devereaux, Kimberly Jade and a European actress named Caroline, who were discovered to have been infected with HIV, allegedly by actor Marc Wallice. It's thought that Wallice had been working with a forged HIV test from a clinic he had been using at the time.

It's also commonly accepted that Ashley's infection came on the set of The World's Biggest Anal Gangbang in March of '98, a shoot that was produced by Dan Beck.

According to the AVN story, Beck's financier was Robert Dupree, and that Ashley's attorney is trying to have Ashley declared as Dupree's employee.

"If such is the finding of the court, Dupree would be required to pay workers compensation to Ashley," the AVN story goes on to say. "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."

Also at issue is the question of whether Ashley was an employee or an independent contractor selling her services to the production company.

Ashley has already given a deposition. And on Thursday Ran Munee, the cook on the shoot was called as a witness. Munee who was subsequently enlisted as the production manager of the shoot collected the HIV tests of the performers.

According to Munee's testimony, some of the performers didn't have the correct paperwork. And Munee claims he never saw Ashley's test, that it was collected by Dan Beck.

Munee also voiced doubt about the authenticity of Wallice's test. The AVN report quotes Munee as saying it looked like "a forgery all the way." Munee said he was going to tell Wallice to go home and get the original test but Beck apparently intervened and accepted it.

According to what Munee also said, Wallice's wasn't the only test that appeared suspicious that at least one member off the street recruited for the gangbang had a 5 month old test but claimed he hadn't had sex with anyone since the test was taken. Munee said Buck Adams was also in the shoot.

Markman's testimony contradicted Munee's to the extent that Markman said no one was hired off the street.

"Everybody who came in was professional talent," Markman is quoted as saying. "They all had paperwork, although the paperwork may have looked a little shady with some of them and certainly with one of them [Wallice]... It was a photocopy; I remember that."

According to Markman, Beck had 50 guys booked for the shoot and was paying them $150. At those rates Beck was having problems filling the roster and Markman concedes that beck may have scraped the bottom of the barrel to find ralent. Markman also says that Beck was pretty much the "point man" who booked the talent, arranged for the stage and other technical details.

Markman describes the shoot as "bizarre" and not the type of thing he had done before. It was Markman's opinion that the shoot which went on for two days was very visually boring, basically repetitive but at the same time a grueling shoot for Ashley. Markman said it had become such an ordeal for Ashley and degrading, that she broke down in tears. And according to Markman, there were several performers Ashley didn't want to work with because they looked dirty. Ashley wanted them wearing condoms.

Markman says Ashley was fine working with Wallice, however. Markman also references a "contract" several pages long which, according to the AVN story, could play an important role in the proceedings. The contract also called for Ashley's participation in the subsequent promotion of the event.

On the condom issue and because Ashley had been insistent on them in some cases, Markman quotes Beck as saying, he had a contract and wanted primarily non-condom.

"I remember there was a clause in there about condoms," states Markman. "I just can't remember if it was none at all or it was a small percentage was allowed."

Judge Sussman's final decision could force producers to treat talent as employees who needed to be accorded certain employee benefits, rather than independent contractors."

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I open this up to the many lawyers on the premises.

I imagine Luke will be all over this

While you're at it, when it was released, I paid top dollar for "The World's Biggest Anal Gangbang (herein referred to as "CRAP")" I subsequently felt VERY misled by the "CRAPs" "implied" contents, and thereby suffered damages due to my inability to reach orgasm over said "CRAP," in the process doing great harm to my mental well being.

Just look at me now!

Can we get goat lawyer to delve into warranty and merchantability since I'm sure the average porn viewer would also feel the same, a consensus of "it sucked ass" would greatly enhance my chances of a full refund.

Only then could I possibly go on living a full and meaningful life.

Its not the "porn" industry itself that has to really worry about this in my opinion; its only a matter of time before enough talent gathered together and demanded this or a court decision came down because of an infection or set accident. The "independent contractor" status has been on the verge of extinction for years (in California at least).

Realistically in California how many active male and female "stars" are there? 800-1200 at any given time? I think it would be much easier to deal with them given its a relatively isolated group and easy to track down (with what, 10 different talent agencies representing 80% of them?). I'd like to hear numbers proposed for the cost per scene to insure and what type of costs would be involved with the health benefits if the "independent contractor" category is abolished.

I think the effect on the "porn" industry would be minimal to the type of upheaval and chaos this would cause at California strip clubs. Its my understanding almost all strippers work as "Independent Contractors" within California (and across the country). There are strip clubs in almost every city in California with TENS of thousands of dancers.

Or consider the fact that California strip clubs are still *very* heavily mob and organized crime influenced; this will not bode well with them when they're forced by the state government to cut into their profits.

I saw a documentary on this and independent contractors a few months ago (after coming off traveling the strip club circuit and seeing all these issues first hand and up close); I can't remember the name for the life of me but it was about a group of San Francisco strippers at the Lusty Lady who attempted to unionize to avoid the "independent contractor" status. Pretty informing about the issue, but its a few years old so it seemed slightly outdated by the time I saw it.

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I'd like to hear numbers proposed for the cost per scene to insure and what type of costs would be involved with the health benefits if the "independent contractor" category is abolished.

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I already have a broker ready to go and step into the industry and its $21.15 for work comp for a b/g scene.

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I think the effect on the "porn" industry would be minimal

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No it wouldnt. Most companies dont carry it and it would cause quite a few problems for the smaller companies. Without work comp the state can actually shut down a company and impose fines until it secures insurance. It can also be considered a felony to shoot without insurance.

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There are strip clubs in almost every city in California with TENS of thousands of dancers.

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Dancers are somewhat different than porn performers, but you are correct that the ruling could be a basis for the same finding for a dancer injured at a club.

I actually just got a call for a girl that dislocated a shoulder on set today. She does in fact have a work comp claim. The company, a larger one, probably does carry comp though so she should be okay.

BTW - I know Judge Sussman, she's young, liberal and I would not be surprised by a finding that Brooke Ashley was an employee. The WCAB is very employee friendly. Elliot Berkowitz is also one of the most aggressive injured worker attorney's in the biz.

Michael

Pornlaw could a performer who contracts herpes through porn file for workers comp?

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Pornlaw could a performer who contracts herpes through porn file for workers comp?

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Yes

Also if this stands up will there be a rush of claims from past performers? If so would that put finicial strain on alot of companies who have not paid comp or for insurance?

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Also if this stands up will there be a rush of claims from past performers? If so would that put finicial strain on alot of companies who have not paid comp or for insurance?

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I doubt it, but there might be some performers that have more serious issues that could file claims. I have known of girls that do a lot of anal having problems with a prolapsed colon. They certainly could.

When I represented Warner Bros and Fox, we had a lot of stuntmen that filed claims against 6 or more studios for injuries sustained through-out their careers right before they retired. Usually the studios split the benefits and settled these cases out. This is also true of abestos claims. Lockheed and the other multiple defendants would assess exposure vs. coverage and contribute to a pooled settlement.

However I doubt if the average porn girl is going to come forward to get a perceived payday - which by the way - work comp benefits are not. These are not civil cases.

Michael

so this case is not that big of a deal and really wont affect the the day to day operations within the industry?

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I already have a broker ready to go and step into the industry and its $21.15 for work comp for a b/g scene.

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I actually wrote a sentence in my original post about that asking you to confirm it but deleted it as I couldn't remember if that $21.15 quote was for workman's comp or a lesser form of insurance (and figured you'd be pretty on top in responding with it nonetheless).

What's an average star's rate for a BG scene? $800? And it would only be $21 to insure *both* the male and female actors? (Say five scenes a DVD, and it would only cost $100 to comply with state law and at least offer some peace of mind to performers?) Would this service only be available to producers in California?

I'm really curious about this company (as I'm going to be filming a few projects soon and want to to it above and beyond "the book") and its prices...do they have any estimates for girl/girl scenes, gangbangs and does the price depend on the level of risk? (Condoms vs none/anal scenes/creampies) What about the rate for the gay side, say a boy/boy scene? Or solo girl scenes, etc? What type of time frame are we talking about when they would be able to offer their services?

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No it wouldnt. Most companies dont carry it and it would cause quite a few problems for the smaller companies. Without work comp the state can actually shut down a company and impose fines until it secures insurance. It can also be considered a felony to shoot without insurance.

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Interesting...

Realistically how long would it be (unless a law was passed in Sacramento) before this would take effect (assuming the decision comes through that performers are employees)? Three to four years? Wasn't TT Boys company already hit up with major fines for the outbreak from a few years ago? How related to the workman's comp issue was that fine levy against him? (I believe though it was a local fine and not from the state, I'm too lazy right now to google the damn thing).

I'm all for a (divisive) issue like this: if it forces performers, directors, companies and talent agencies to sit together and figure out how to approach this issue and comply with state laws, thats fine with me. Really if its only $21 a scene and directors are bitching about it after they just hired a whore for two hours of work at $800 (or more), they need to re-negotiate with talent and agents on rates with some sort of industry wide standards.

The way I see it it would be well worth the $21 a scene to film in California given that this state is the only one to actually protect production of adult material under the First Amendment. Fair trade if you ask me. It would be nice to see the industry on its own actually organize this rather than being forced by some government entity.

If Mc-fucking-Donalds can pay its employees $6 an hour and still offer workman's comp, yes, the porn industry can find a way too. Fuck, its a crime to even drive your car without insurance in California (and I consider porn production a hell of a lot more complicated than driving). If I'm able to afford it for scenes that I film (where I never make a dime of profit), companies that are in this industry solely to make a profit can do it too.

HIV may fall under force majeure?

"Force majeure (French for "greater force") is a common clause in contracts which essentially frees one or both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as war, strike, riot, crime, act of God (e.g., flooding, earthquake, volcano), prevents one or both parties from fulfilling their obligations under the contract."

I don't think so, since STDs, including HIV, are a foreseeable consequence of performing in an adult movie. But I've been , this is not my area of expertise and I know nothing about Workers Comp law in the State of California. What do you think, Michael?

How on earth did a workers comp case go on for nearly 10 years? Is there a weird statute of limitations that allowed it only recently to be filed? Whatever the result it will be appealed. So don't plan on a final decision until another year at the least.

Workers Comp is actually looked upon as a very employer friendly system and is hated by trial lawyers. An injured employee is required to go to workers comp and CANNOT SUE THE EMPLOYER for on the job injuries including personal injuries. Why the adult industry would not want this protection escapes me. Its lawsuit insurance. I assure you that workers comp will pay far less for exposure to HIV or a lost limb than a civil jury.

The AVN article says:

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if Ms. Ashley was found to be an "employee" (as opposed to an independent contractor), "Dupree would be required to pay workers compensation to Ashley, or if for some reason Dupree

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I believe that's incorrect. Workers Comp is an insurance program and the insurer or general fund would pay Brooke Ashley, not the employer. So why not a civil lawsuit instead I wonder? Perhaps she knows the producer is judgment proof and wants to recover from the general fund. Perhaps she blew the statute on the civil suit.

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Markman also said that whatever the outcome of the workers comp proceeding, he expected Ashley to file a civil lawsuit as well.

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This happened in 99. The statute of limitations is 2-4 years tops. So no way there will be a lawsuit unless the workers comp filing tolled the statute of limitations on the civil suit.

Michael is correct that the judge will twist herself like a pretzel to find a way for Brooke not to get screwed in this case. The article says she had a contract, which should make it an easy decision. But if the independent contractor is directed on how to perform their work they are generally not an IC, but an employee.

Workers Comp (at least in Canada) is a NO-FAULT compensation system funded by assessments on all businesses in each province. The assessments are based on the size (# of employees), nature and claims history of the business.

If an employee is injured in a 'work-related' accident then the Workers Comp board approves the claim and it is paid out of the fund. The only effect on the employer is that its base premium increases, although not significantly.

As Moxie said, a determination by the board that a claim falls within its jurisdiction bars all lawsuits against the employer and other employees.

The injured employee usually gets an award of a portion of lost wages - NO MONEY FOR PAIN AND SUFFERING.

The whole process is usually way cheaper for the employer. The only exception is where an employer has the misfortune to have lots of employees who injure THEMSELVES through their own clumsiness/stupidity. Workers Comp compensates them too, and the Employer's assessments still go up.

This is a wider question and will need someone with a science background to answer. Is is possible to test at a DNA level for herpes to find out the exact strain? And could this information then be used against whoever is alleged to have passed this strain on to another performer?

I'm just wondering if Brandon has anything exciting planned for the end of the year, court-wise.

I'm not a lawyer, and I don't even pretend to be a douchebag lawyer on the internet, but it's pretty clear to me that porn whores and dicks are not employees.

Maybe, just maybe, a contract whore could be considered an employee because they draw regular compensation regardless of their output, but I think most other arrangements (i.e. 1k for anal, 1.2k for adp, etc) fall under piecework and the true definition of an independent contractor.

No, thats not the control i'm refferng to. If you control the outcome, but not the way its accomplished you have an IC not an employee. The standard definition of the control test is:

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If the one who pays for the labor and services of another has the right to control what will be done and how it will be done, this other person is an employee. This will be so even though the employee has been given some degree of freedom of action. The key determinant is the existence of the right to control the details of how any work is done. Whether such control is actually exercised is irrelevant.

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Still not 100% accurate. I can not only tell the painter what color, I can tell him I want it scraped, not stripped with a heat-gun, and that I want the paint brushed on, not sprayed. I can even tell him to start on the left side, then the rear, then front then right and he's still an IC.

Now the painter, he has two Mesticans working for him- he pays them 10 bucks an hour cash and intends to give them a 1099 every year. Using hand gestures and speaking spanglish very loudly, he tells them to scrape and brush on the paint. One of them falls off the ladder and he learns quickly that they are actually employees, and he's responsible for their workers compensation. (Well, he would have learned, but since the Mestican is illegal, he is afraid to file a claim).

I guess this is why it'll wind up in court.

I have little doubt that Ashley will be found to be an employee. Cal?OSHA has already determined performers to be employees - see the TTBoy case.

The $21.15 is for W/C insurance and we have a state run insurance company of last resort called State Fund that has to provide insurance to the adult industry. Adult is a legal business here so they are require to insure companies that are otherwise uninsurable.

HIV or any other STD with lasting medical treatment and permanent disability would be covered under work comp.

Moxie is 100% correct as to the control test, but there are generally 7 areas that the IRS uses to determine IC vs. employee status.

The REAL problem here isnt porn girls coming back for benefits on injuries. The REAL problem here is withholding of state and federal taxes on employees. If there is a movement by the state of California to go back and collect taxes for all of the performers numerous companies could be put out of business.

Assemblyman Calderon is trying to impose an 8% tax on porn in the state to raise money for California. Collecting on back taxes could be a money grab for the state.

The smart companies who insure and use payroll services will survive those that dont could face tax liens. As well as being shut down because of a lack of insurance.

As for civil lawsuits, if an employer doesnt have comp, it can be sued in civil court, its the lawyer's choice. However, if a lawyer suspects there are no assets to grab, you would go to the WCAB since the Uninsured Employers Fund would pay benefits and then they would go after the principals of the company.

Michael