Tomorrow the California Assembly’s Appropriations Committee will vote on AB 1576 , a bill that would mandate condoms for all penetrative sex acts in porn. It also requires porn companies to indefinitely carry medical records for each contractor they shoot, and the vague language of the bill leaves room for Cal-OSHA to also mandate barriers, including protective eyewear and gloves, as well as disposable plastic covering for sets, so that performers can enjoy fucking on a Saran Wrap-covered couch.
This legislation presents itself as advocacy for sex workers’ healthcare, despite a majority of adult entertainment workers opposing it loudly and clearly. The bill’s sponsor, representative (and former minister) Isadore Hall and major supporters the AIDS Healthcare Foundation have refused to take the voices of the community into account, instead collaborating with such organizations as Pink Cross, a Christian ex-porn performer nonprofit.
I’m currently in the beginning stages of suing local Portland strip club Casa Diablo. So of course when last fall the Oregon chapter of the National Association of Social Workers hired lobbyists from lobbying firm Pac/West to find out what protections strippers need and to craft a bill that offers these protections, I was very interested. But by the second meeting it was clear that as far as knowing strippers’ rights was concerned, both groups were starting from a blank slate.
To clear the matter up, I talked via e-mail to Corinna Spencer-Scheurich, a lawyer from the Northwest Workers’ Justice Project, an Oregon organization that represents workers in wage claims, does education and outreach about wage theft, and works on other ways to promote human and labor rights. This fall, Spencer-Scheurich represented a dancer in a lawsuit against Portland club Rose City Strip, which won in arbitration. She’s also done two presentations on the legal rights of strippers for SWOP-PDX.
Red:In most of the country, strippers are working thinking they’re independent contractors. But are they really? We’re winning these lawsuits for employee status across the country—Rick’s, Sapphire, Spearmint Rhino, Rose City—what are the indicators of independent contractors status?
Corinna Spencer-Scheurich: Those are a lot of big questions so let me see if I can break it down. Many workers (including dancers) are treated as independent contractors, when they are actually employees. This happens in a lot of industries.
Red: Like FedEx drivers it turns out! And Uber drivers.
Spencer-Scheurich: Exactly. So this is a big problem overall. It is especially rampant in the exotic dancing industry. Clearly, there are independent contractors who are dancers. The clear cases are where people are headliners or traveling acts, etc. Where they are their own business entity separate from the club. But, there are many more dancers who are employees. And those are the cases that you are seeing dancers bring across the country.
Red:So to really be an independent contractors would you have to be registered or licensed as your own business?
Spencer-Scheurich: That would be one hallmark of an independent contractor. Another might be that the dancers could actually negotiate their contracts (instead of everyone [being] subject to the same rules).
Red:So being able to change prices for dances, or [deciding] when they show up to work and leave?
Spencer-Scheurich: Right, the less control the club has over the dancer, the less likely the dancer is going to be an employee. So, you are more likely to be an employee if you are subject to fines, can’t set your own schedule, have to dress a certain way, can’t control how you are paid, etc. No particular factor determines whether you are an employee or [an] independent contractor. Courts just look at the whole picture. One big piece of the whole picture is whether the dancing is an integral part of the club’s business. As we know, strip clubs need strippers.
This isn’t so much a blast from the past (although, I was shocked to learn that 1997 was fourteen years ago) as it is déjà vu (no, not the place with the three ugly girls). I randomly came across an old issue of Hustler last week because I had a part in an indie movie that takes place in the nineties and it was a prop. It contains an article written during the first round of stripper employee-status and back wages lawsuits that started in San Francisco, focusing on the legendary Mitchell Brothers O’Farrell Theater.
It was an interesting read despite the opening sentences: “Six nude nymphs rise into the air. Writhing together, they kiss and giggle, licking one anothers’ perfect pussies, nibbling nipples, tickling and fondling pert breasts.” What else do you expect when you have to sandwich something substantial in between a photo editorial of a woman whose “favorite pastimes” are “tanning, exhibitionism, and masturbating” (not that there’s anything wrong with that) and an illustration of Abe Lincoln with a raging boner? I learned a few things, most notably that very little has changed. The independent contractor vs. employee debate is just as relevant as ever.
Now that California’s AB 1576—which would mandate condom use on porn sets—is in committee in the California State Senate, we wanted to follow up on our earlier coverage of the legislation. We asked two progressive porn performers, Jiz Lee and Conner Habib, about how they felt the proposed law would affect the future of California porn.
Jiz Lee is a genderqueer porn performer known for their genuine pleasure and unique gender expression. In the past nine years, Jiz has worked in over 200 projects spanning six countries within indie and mainstream adult genres, and balances sex work by working behind the scenes at Pink & White Productions, as well as writing and speaking about queer porn as a medium for social change.
Conner Habib is an author, gay porn star, and lecturer. His book, Remaking Sex, will be released in 2015 by Disinformation. His Twitter handle is @ConnerHabib.
Do you feel that AB 1576 will be helpful to porn performers?
Jiz Lee: Not at all. In fact, it will only be harmful. It legally controls (“forced consent”) the way performers have sex, eliminating—and criminalizing—their choices. It also creates major legal concerns that would force productions out of the state of California, creating relocation, decreased work opportunities, and other difficulties for performers and people working behind the scenes. Testing and barrier use is great! I should know! I’m a performer who is in the minority; because I perform infrequently and like to use my work to promote pleasure and safer sex practices, I often prefer to use barriers. I value having the choice to use risk-based assessment to practice safer sex, something I do on screen, and off. But this bill would do nothing to actually ensure safer practices and only make the situation worse. Having attended the Appropriations Hearing in Sacramento, it was obvious that the AHF and AB 1576’s sponsor, Isadore Hall, had no interest in listening to performers’ needs, including those of over two dozen industry professionals who traveled to City Hall to testify. It was incredibly disappointing.
The strippers at Tits and Sass have gone on record as being, in general, in favor of independent contractor status for strippers, because we like working at will, not having to be on a rigid schedule, having the ability to travel and work when the whim strikes, not turn over most of our money to the club, and taking Schedule C deductions. There have been a lot of lawsuits filed by strippers seeking to get paid back wages from clubs, and what usually happens is they are determined to be employees (because, honestly, most clubs do treat dancers like employees, mandating shift times and other controls over work), they get paid a small settlement, and the strippers still working at the club or clubs named in the suit inevitably wind up paying more to the club than they did before.
However, the one time we’d actually WANT to see a court determine that a dancer had employee status, as, again, almost inevitably happens, the South Carolina Court of Appeals finds her to be an independent contractor. The reason she was seeking employee status? To collect worker’s compensation after she was SHOT IN THE CLUB in 2008. This is absolutely horrible.