Who Should Pay for Performer Testing ?

On July 24, 2012, Manwin the owner of membership websites known as Brazzers and Mofos and tubesites such as YouPorn, PornHub, and Tube8 made an announcement that they would donate $50,000.00 per month to create a “Performer Subsidy Fund” to reimburse performers for the cost of testing in the adult industry (See story here).

This fund would be administered by the Free Speech Coalition through their APHSS program. Basically, Manwin stated that they would reimburse all performers the costs of their tests within a given month up to $50,000.00, whether those tests were for Manwin productions or not. Manwin also called for other production companies to join with them in their generosity and also donate to the fund. They further donated a total of $35,000.00 to FSC/APHSS to administer the fund. However, they did place a time limit on the program indicating that the program would only run through the end of 2012. At which point it would be re-evaluated to determine if it would be continued into 2013.

Many people within the industry pointed out that this was a very generous, albeit suspicious offer from Manwin. There is a general opinion within the industry that Manwin, through their tubesites, was a direct contributor to the economic downfall of porn production. Why now would they voluntarily come forward and support performers to reimburse testing costs ? Some people even opined that they believed this was Manwin’s attempt to take over medical testing procedures in the industry.

However I think the answer can be found in California Labor Code section 222.5 which reads in relevant part;

“No person shall withhold or deduct from the compensation of any employee, or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment, nor shall any person withhold or deduct from the compensation of any employee, or require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.”

In short, employees in California cannot be made to pay for pre-employment medical testing, which is exactly what the STD testing is within the adult content production business – a pre-employment test. Without a clean test no production company will or should hire a performer to perform in an adult production.

I realize that many performers in adult do not and refuse to consider themselves employees. Rather they wish, for whatever reason, to be called independent contractors. I can assure anyone reading this article that performers, for purposes of worker safety laws, are indeed employees and not independent contractors. Perhaps for tax purposes they may be independent contractors. It is possible to be an employee for worker safety laws but yet be an independent contractor for tax purposes.

Further, on January 1, 2012 additional laws went into effect in California making the “willfull misclassification” of employees as independent contractors even more dangerous for employers. Labor Code Section 226.8 imposes significant penalties ranging from a minimum of $5,000 to $25,000 for “each violation.” The civil penalties for one misclassified individual could be tens of thousands of dollars depending on the interpretation of “each violation” and the penalty imposed. Obviously, if Manwin does not take remedial steps to comply with California law in regards to the classification of employees they may face significant penalties as well as potential lawsuits under California’s Private Attorney General Act, which allows individuals to file lawsuits to enforce California law.

It is this author’s opinion that Manwin is starting to realize that the performers are indeed employees and are taking steps to comply with California law. Obviously, they are trying to set a precedent with the reimbursement of testing costs, however they still fall short of actual compliance with Labor Code section 222.5. Since the “Performer Subsidy Fund” requires a performer to sign up for the program instead of Manwin paying for the pre-employment testing outright.

None-the-less, Manwin is taking a step in the right direction when it comes to the treatment of performers, however, it is only a half step. At some point all production companies will have to address not only peformers’ testing costs but also the issue of workers’ compensation for on-set injuries.

If you would like to read more on the issue of workers’ compensation and porn production here is a two part interview I did for XBiz Magazine in 2007 … Part I and Part II

In future posts I will be covering the issue of workers’ compensation insurance and its application to porn production sets further.

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5 thoughts on “Who Should Pay for Performer Testing ?

  1. Needed to post you one little bit of word so as to thank you as before relating to the amazing secrets you have shared in this case. This is quite pretty generous with you giving unreservedly all a number of us could have supplied as an e-book to get some money for their own end, precisely considering the fact that you might well have done it in the event you considered necessary. These tricks also served to be the fantastic way to fully grasp that someone else have the identical keenness just like my own to know a lot more with respect to this issue. I think there are some more fun instances ahead for many who start reading your blog post.

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  2. Yes, but they maintain that the requirement is that performers seeking subsidies must be on the APHSS database. After what happened with the industry database last time (through AIM), I’m wary of adding my information to any database.

    Why this requirement? If we can prove that we are getting tested for the purpose of being in a scene, the database inclusion requirement seems unnecessary (unless they intend to use the information for other purposes).

    I’d rather just pay for my own testing if that’s the case, and I’m sure other performers who experienced the backlash of being in a database last time feel the same way…

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  3. Thank you Anthony. As for your question, I think Manwin is still going to reimburse TTS testing costs. At least that’s what their press release said and what Fabian tweeted at me last night. Testing will never be a moot point. Talent & producers should always want it in case a condom breaks.

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  4. Hmmm…that brings up some other interesting legal issues, especially considering Manwin’s recent annoucement that they would not accept test results from Talent Testing Services because the latter hadn’t yet accepted the APHSS system protocols.

    Couldn’t there be a possiblity for legal action by, say, TTS, on the grounds that Manwin sponsoring the testing subsidy fund for FSC/APHSS/CET while excluding TTS-back performer tests, would constitute a conflict of interest, or even a monopoly??

    Also..wouldn’t all this be a moot point if the condom mandate is passed in Los Angeles County, or when the Cal-OSHA proposed “barrier protection” regulations are finally enacted??

    Questions, questions….

    BTW, Michael….great to see the blog back in action…and thanks for all the support.

    Anthony

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