ONE SIMPLE SOLUTION
op/ed by Tim Tritch
I would like to offer this one simple solution to this particular problem that the industry is facing today.
Cal-OSHA has been trying to get access to AIM test results for years. They have been denied by the courts, but they still keep coming back. For some reason OSHA believes that AIM has employment records of performers. http://adultfyi.com/read.php?ID=44533ers.
AIM doesn’t keep employment records of performers. I called Deborah Gold a few weeks ago and asked her why OSHA thinks that AIM even has records like this. She had no answer for my question. Deborah Gold is an OSHA official directly involved in the current hearings.
I think one of the problems is the waiver that performers sign at AIM. I completely agree that there needs to be a comprehensive testing program, and those results need to shared among the people who are affected by it. But it can be done another way. I propose giving every performer internet access to their own results, and let the performers send their results to whom ever they wish. A simple program that allows performers to fax or email those results anywhere could be easily implemented. No need for a waiver, and no reason for OSHA to claim that if AIM gives results to producers, or any other password holders, then AIM should give those results to OSHA.
Does anybody remember the ‘old days’ at AIM. Every performer got paper copies of their results with the sticker and the embossed stamps? I personally sat at AIM’s front desk and did this hundreds of times. Then LABDAT came along. LABDAT was actually HLC’s internet reporting system. It was HLC, at the request of AIM, who granted the passwords. It was a great little system. When HLC was purchased by Westcliff Lab the Labdat system was not integrated into the new company. AIM then developed their own system that is in place today.
But somehow they system changed form performers checking other performers tests, to producers checking performers tests, and this was the opening of the door for OSHA. AIM’s main competitor, Talent Testing Service has no waiver, they send the results to the person being tested, or to one other place that is specified by the person being tested. And you don’t see OSHA going after TTS.
I think adopting a system like TTS would solve this one problem, and this is just one component of a multi-prong plan to improve the AIM system, and we don’t need any permission from anybody to do this. This would also protect producers. I think the current password system walks a very fine privacy line. But that line can be erased, and relieve not only AIM, but producers from possible litigation in the future.
So, what do you all think. One step at a time, and we can improve the system. I am anxious to see what you all think. And I am always open to suggestions. I don’t want to come across as someone with all the answers, I just want to make things better.
Thank-you again
Tim Tritch
tritchtm@ca.rr.com
There is HUGE and very LEGITIMATE reason why you, Cal and no one else can get “test results”. Can you guess what it is? It is called HIPAA and it is one of the ONLY laws that actually helps/PROTECTS the “regular person”. It keeps our health PRIVATE!! It protects you, me and everyone else EVEN “PIs” like Clark Baker who thinks he should b e privy to every fact about his enemies!! As citizens of a “State” we do not have all that many rights and privacy is one that we deserve!! If you do not understand that, then you do not deserve to operate this very website.
Here is a site to help you and your readers understand this very important piece of legislation:
http://www.hhs.gov/ocr/privacy/hipaa/understanding/index.html
JTD
isnt the only reason OSHA is after AIM and not TT just because AIM is so much larger target for them?
How will this system relieve responsibility on the producers?
compared to the current system where producers are required to verify tests either by internet access or by phone call.
i agree on the privacy invasion, anyone with a pw for aim can pull all performers private information incl drivers lic, home address etc etc.
Thanks for your question Sirecumalot.
This entire system is voluntary. Producers are not required to check test resutls, actually, it is illegal for producers to require potential employees to be tested for HIV. In the same way that OSHA does not enforce its regulations, a blind eye is also turned to the illegal practive of ‘requiring’ HIV tests for performers.
AIM is being targeted because they make the test results available to third parties. The change I am proposing does ot relieve producers of responsibility, it releives them of the possible litigation in the future regarding privacy violations, and illegal access to those results.
No law requires performers to test. OSHA does not go after TTS becuase they have no legal right to. OSHA goes after AIM becuase they claim that AIM is acting as an agent of the employers, and is directly involved in the employment process of producers. By removing the producer and talent agents DIRECT access to the results, AIM removes the legal theory on which OSHA has been making their claims. Let the perfomers give the results to the producers and their agents. Performers can give their own results to anybody they wish, and nobody can stop them from doing so.
And we must remember, OSHA isnt looking out for the well being of perfomers, they are trying to identfy employers, in order to issue citations.
With the advent of new technology, the password system is just not needed anymore. The waiver may have been necessary in the old days of paper results to allow other performers and producers to verify results. But adopting a system similar to TTS releives everybody of the possible litigation on privacy grounds. Consider the current lawsuit(Desi and Eli). There would be no grounds for this lawsuit if this system I am proposing were in place.
Thank-you for your questions Sire. I am always open to suggestion, and always happy to answer questions. I dont expect changes over night. At an industry meeting in 2004 I said, “If you guys dont change and improve your system, somebody else is going to do it for you.” I personally thought it would happen sooner, but it is happening now. The industry does not need anyone’s approval to improve the system. The potential for abuse of the current system is too great.
Sirecumalot, a future article will address what I think producers should be held accountable for.
the poopular belief is that the producer is responsible for the safety of the talent including checking and verifying they have tested within the past 30 days etc.
popular belief is also that talent is not employees but rather contracted artists.
The talent are employees. This issue was settled long ago. In the past OSHA has successfully cited several adult companies, and all of those citations have been upheld.
I agree that producers are resposible for the safety of talent, but for producers to maintain that the testing program fullfills their legal obligation is just plain wrong. It does not. This too will be the subject of a future article Sirecumalot.
I agree that these are popular beliefs, but that does not make them right.
Thanks Sirecumalot, if you have any suggestions then by all means suggest away. Your comments are welcomed, thank you.
Tim,Did you really work at AIM? What were the performers like when they came in for tests? Why would you give your real name on this crazy site?
i can understand contract performers are employees but most producers i know of hire a performer for one shoot, have them fill out a w9 and be done with it.
also the photographers and make up artists i know of are hired on same terms.
look forward to your future article on producers.
Missbiatch2U,
I was not an employee of AIM, I worked for HLC, and Westcliff Labs. I was the Account Rep. I spent alot of time at AIM, and some people thought I was an employee. If I had a nickel for everytime I said “I am not an employee of AIM,” I would have a truckload of nickels.
I often say that I didn’t meet the ‘performers,’ I met the real person behind the performer facade. I know them by their real names. In the past I have had friends ask me, “Have you ever met so and so?” I would tell them “Probably, but I dont know most stage names.”
I’m trying to make some real change for the performers, and I cant do that unless I use my real name. I helped build AIM, literally with my own hands. I would work their booths at AVN and L.A. Erotica, as well as spending alotof time at the clinic. AIM is not perfect,the industry is not perfect, I am not perfect, nobody is perfect, and their are no perfect solutions, but everything can be made better,thats what I am trying to do.
Missbiatch, performers are just like everybody else, some educated, smart,funny, and friendly, others just the opposite. But the large majority fit into the first group. About six months go I ran into two perfomers at a resturant in Burbank. They were in the booth right next to me. I was there with three of my sisters(I have six). One of the girls said, rather loudly, “Hey, theres the guy from AIM.” One of them was a rather well known performer. I steppped over to their table and chatted for a minute, and picked up their tab. I sat back down with my sisters and said,”Work is tough.” We all had a good little laugh. When they got up to leave one of them asked my sister about her ear rings and necklace, just regular girl talk. Another sister said somehting like ‘you would never guess those two were porn stars.’ That is what most perfomrers are like, just like you and me, regular people.
I could probably count on one hand the number of performers I have met that I really didnt like
Although OSHA citations have this far been upheld, the issue of employee vs. independent contractor is far from settled. OSHA’s policy is to construe as many workplace environments as employer-employee relationships as possible. They choose to construe these relationships as broadly as possible because regulatory agencies always seek opportunities to regulate things. It’s their essential nature. It justifies their existence, and their paychecks.
That said, there are many requirements for safe workplaces that are not waivable by contract, and thus even those who hire independent contractors must abide by those particular requirements. It’s a complicated issue, but the fact that certain adult content producers may (or may not) have violated those workplace requirements by which ALL providers of workplaces must abide is not dispositive.
@ MW
that makes sense, so from an OSHA perspective keeping the workplace safe is required regardless of the employee/contractor status.
@Tim
Now i doubt you have really worked at AIM.
fact is most performers prefer to go by their stage name, even outside the industry.
secondly, someone working at AIM would never pay the tab of working porn girls, AIM does not pay very well, and porn girls make lots of dough..
thirdly, i have never seen you at AIM though i have been coming there regularly in the past 6 years.
@sirecumalot Another way to look at it is, from an OSHA perspective, keeping more workplaces REGULATED is required regardless of the employee/contractee status. Their job is to regulate. It justifies their existence. No regulatory agency in history, to my knowledge, has ever refused the opportunity to regulate something.
@Tim, I just received, vis email, some info from the UCLA panel — information packets, etc. You probably have as well.
The OSHA packet makes it very clear that the ladies from OSHA who “just happened to be in the audience” were disingenuous to say the least when they asserted, in response to my question/statement about independent contractors vs. employees in the adult industry, that the mater was simple, and quite simply settled.
In part, the OSHA packet includes the following
Cal/OSHA Jurisdiction depends upon employment relationship:
Some workers in AFI get pay stubs and are treated as employees
Some workers are working “informally”
Some workers are being paid as “independent contractors”
Some workers are also producers and/or directors
Employment Relationship:
Employer exercises all necessary control by direct or indirect means over the work details of the individual.
Even where there is an absence of control over the details, an employer-employee relationship will be found if the principal retains pervasive
control over the operation of the whole, the worker’s duties are an integral part of the operation, AND the nature of the work makes detailed control unnecessary.
Multi-factor Test for Employee vs. Independent Contractor:
Employers have responsibilities – state disability and unemployment taxes,
workers compensation, employer’s share of social security tax, wage and hours laws, overtime pay, OSHA [THIS IS A BIG ONE — a real hurdle]
The existence of contract does not COMPLETELY determine the issue
Method of payment or tax records do not COMPLETELY determine the issue
This is an incomplete, HIGHLY abbreviated enumeration of the factors, tests, and case law — because this is the law AS IT IS VIEWED by OSHA (it’s the state of regulations and laws through OSHA-colored glasses). But it’s STILL not as cut and dried as they claimed at UCLA. There exist many differing perspectives on workplace / employer-emplotee issues. What’s why businesses hire OSHA lawyers. If it were all cut and dry, there would be no need.
Again, thank you for your responses.
@Michael The employee v. IC is a complicated issue. Maybe we could talk this out privately instead of goinf back and forth here. There are valid arguments on both sides of this issue.
@Sirecumalot. The picture of me that is on top of this article is taken right off of one of AIM’s old calendars. I am not sure which year. I was never an employee of AIM.I was employed by Health Line Clinical Laboaratories, and Westcliff Labaoratory. AIM was my account.
Sirecumalot, if you tested at AIM you know that it is the legal names that go on the tests, not stage names. I havent been involved with AIM for about two years now. And regarding performers using real or stage names let me tell you another little story.
At the old AIM location on the corner of Corbin and Ventura there is a Coffee Bean in the same parking lot, and a little sandwich shop called The Tomato Patch. I bought so much coffee and so many sandwiches that both places started giving me discounts. One day while having a coffee with a perfomer I kept referring to her by her real name. When we were about finished she said,”Youre the only one who has called me that in six months.” I replied,”You were ******** long before you became ******.” She gave me hug and went on her way. That was a good day.
One thing I always liked about that Woodland Hills location was seeing Speigler there all the time. He would buy us lunch a few times a month. Nothing better than a free lunch.
I physicaly helped build both the Woodland Hills location and the place on Van Nuys Bl. I hung doors, painted walls, set up computers, whatever was needed. I even cleaned Boo’s bird cage once or twice.
Sirecumalot, I have not asked any of the AIM eimpoyees for permission to use their names. But feel free to ask anyone there about me. Ask the black guy with dreds, he’ll tell you all about me.
Thanks for the comments. The more dialogue the better.
You’re right, it is a complicated issue. Far more complicated and nuanced to discuss here, and even more complicated and nuanced than the women from OSHA who “just happened to be in the audience” at the UCLA panel cared to admit.
Before you start testing anyone, you should probably establish exactly WHERE, WHEN, HOW and WHO proved that 1) HIV attacks cells and 2) causes AIDS.
Once that’s done, it might be a good idea to establish a “gold standard” so that tests can establish that someone is actually HIV+ before you start selling tests.
Now THAT’s a simple solution.
Here’s an offbeat question:
Who would you rather have as President?:
1. Arnuld Schwarzenneggar?
2. Sarah Palin
3. Al Sharpton
4. Zbigniew Zibbizinski
5. Darrah