On December 16 2019, the Adult Performers Actors Guild hosted a meeting with representatives from the California Labor Federation to discuss concerns and ask questions about California Assembly Bill 5, known as AB5. AB5 is the legislation that takes the Dynamex Decision from April 2018, the ABC test, and turns numerous independent contractors into employees.
As a federally recognized union comprised of adult workers, including adult film actors and webcam performers, it is our mission to inform our members of changes in our workplace. By providing this forum with the California Labor Federation, we were able to learn how AB5 will potentially affect our industry, and how we can work to reform the bill.
We have two versions of the meeting available; the full recording of the meeting is below, along with a partial transcript. The recording contains the meeting in it’s entirety, but the performer conversation afterward has been removed to protect the privacy of our members.
AB5 TRANSCRIPT-
December 16th, 2019
APAG Union
Name of Association: APAG Union
Type of Meeting: Townhall on AB5
Date: December 16th, 2019
Time: 10:00 am PST
Meeting Facilitator: President Alana Evans
Call to Order: At 10:06 am PST
Roll Call: Taken by President Alana Evans
Attendees Present:
President: Alana Evans
Vice President: Ruby
Secretary/Treasurer: Kelly Pierce
Sergeant at Arms: Amber Lynn
Parliamentarian: Jorge Reano
Not Present:
Board Member: India Morel
Board Member: Tony Tedeschi
Guests: California Labor Federation Steve Smith and Caitlin Vega
Steve: Great, thank you so much. Thank you everybody, for taking the time to join today. I know that there is a lot of information sort of swirling about around on AB5, five employers in different industries are reacting in different ways. So I know many of you have some concerns, or at least would like some clarity on the law so hopefully we can begin to address those today. But I also just wanted to give the caveat that you know, we really want to we want to hear those concerns. We want to hear the feedback. We want to hear what’s happening in your industry. So then we can take that information, working with the authors and other legislature to make sure this is still implemented in a way that it was intended, which is protecting workers and making their lives better.
Steve Smith: I really want to, I want to turn it over to our policy expert, somebody who has been living and breathing this issue for well over a year and has worked with the legislature as well as many, many other groups and industries in terms of passing the law, getting it signed, and now working on implementation, which is our legislative director here at the California Labor Federation Caitlin Vega to just kind of walk you through some of the history behind the law, what it’s intended to do, why it’s so important and Then we want to, of course hear from you all, in terms of what’s happening in your industry. So with that, Caitlyn, would you like to take it away?
Caitlin Vega: Sure, thank you Steve, Good morning, everyone. I just want to say thank you to all of you and to your President Alana Evans and your leadership, for inviting us today. And also for the great opportunity to advocate for the workers in your industry. We recognize that and are proud to be working with you. I do hope we can be helpful here in this discussion today.
I’ve been with the Labor Federation, which is the umbrella group of all of the unions in California for 16 years on bills and that impact working people health and safety, basic rights that work over that period one of the major challenges that we’ve faced, is that you know about a few decades ago companies, corporations started moving from muted a direct model where they hire employees and they’re responsible for those employees to a contractor model where they say each of you is your own business. Basically saying you’re an independent contractor, I’m not responsible for ensuring that you make minimum wage, I’m not responsible if you get hurt at work, there won’t be any unemployment if you get laid off, no workers comp if you’re hurt, and all the risks shifts from the company to the worker. So this is a problem that we have seen in just about every industry throughout California and tried to battle on a lot of different fronts over the last few decades.
In April of 2018, we were quite surprised to read a court decision issued by the California Supreme Court. It was a unanimous decision and it said this practice of worker misclassification is widespread across our economy. It’s breaking the law and it’s bad for the state of California, and so we want to clarify the law around this classification as the clarity that they provided. And that decision is called the ABC test. And the ABC test is a three-part test. And basically the court said, if a company wants to get away with calling a worker, a contractor, the company has to prove they need all three prongs. Prong A is they have no control over the worker, either in practice, or through the contract or in real life. Basically, prong B is the most important one. It’s the one that was the most significant change from previous law. And that says the company has to prove that that worker is not doing The usual work of the business. So in the case, you know that if it was a package delivery company, if you’re delivering packages, you’re doing the regular work of the company, and you’re an employee. And then the last part was the company has to prove that individual went into being their own independent, separate business, by themselves without any help. Because often in in this classification situation, the company will say to a worker, you have to go, you know, set up your own business. So this looks like you’re not my employee. And the court said, No, that doesn’t work. You have to have chosen to go into business for yourself. So the court established that test. And the court also said that the company asked the court, can you please make clear this is not retroactive. It’s just going forward. The court said no, which means three years of retroactivity, it means this is the law. This has always been the law. You guys were looking at it the wrong way. Dynamex is the law of the land, including back liability. So this was a major kind of earthquake in labor relations. What we saw in response to it was a massive campaign by every industry in California to undo the law to suspend the law. And we thought, well, you know, this is a big important protection for workers, right? We recognize it may not need to apply in every setting, but we can’t lose it all together, which is what’s going to happen if we don’t do anything. So what we decided to do was introduced AB5, which basically says, Yes, Dynamex is the law of the land, but we also understand their settings where it may not make sense. One of these settings for example we us is ER doctors, and they said, in California hospitals are legally prohibited from hiring doctors directly. So Therefore Dynamex doesn’t work in that setting. And he said, Well, that makes sense that can be created an exception based on that situation. So what we tried to do with AB5, which is certainly not a perfect bill, but we work and kind of had to deal with the entire economy really quickly and had to figure out what are the right protection, also with the mindset that the court granted this protection across the board, and this is the law. This is how you tell an employee. So we were in that position with normally we are fighting to extend laws to workers access protection workers. We were in that position of having faith. You know, where do we feel comfortable with taking back certain protections for workers and you won’t be surprised by we generally were not comfortable doing that we wanted to make a report protection unless we heard very strongly from workers this doesn’t work for us. We don’t want it and so what we ended up doing in the bill and is negotiating some professional exemptions, but not in all professions, obviously, a very fine art, and we captioned questions for other artists, like performing artists, so for performance artists, there is not an exception, and that’s because over all what we heard actors and performers wanted these protections. We see a lot of exploitation in that industry, so the final product is what ended up being AB5 being a codified version of the dynamex decision unless you want an exemption and the only exemption for you all is the exemption for two separate businesses contracting with each other. So if a person sets up their own business and is a separate business, providing a service to the other business maybe you could call it parent company or the bigger company, and they would be exempt from this cloth. Otherwise, if they are hired to perform the regular work of the business, they are probably going to be found an employee. And then I’ll just close by saying, we recognize this is not as I said, not a perfect solution. It was the best we were able to do given the dynamex decision and the very, very fierce opposition we faced from every single company in California to this. But we do plan to do what we call a clean-up bill this year to try to catch the mistakes or tests the things that need little tweaks or need things to be fixed. And so our our hope is to think both about how do we implement this law? How do we try to protect workers in the face of implementation? And also, are there are there tweaks or changes that need to be made in order to do that? And then just the final thing I’ll say is, in every industry, we are hearing now, employers saying things to workers, you know, this is going to force us to take away your flexibility, this is going to force us to lay you off, this is going to force us to, you know, US workers out of state, lots of different threats. And so you’re aware, that is kind of across the board. They are angry that they’re being asked to take a higher level of responsibility for the people who do the work for them. And they are you know, using these threats against workers to try to kind of scare them about what the impact of AB5 is. And, our goal is to start by kind of educating, making sure people know that none of that is required by AB5. None of that is the way they are supposed to respond to AB5. But we do want to understand what they are actually doing in practice and how we can try to make this the best way possible to be implemented. Thank You.
President Alana Evans: Wow thank you, that was so informative and Steve did you want to add anything?
Steve Smith: YES, I just want to reiterate the dynamex decision has been heralded as one of the biggest labor rights for workers. In the last twenty years or more in the old model we’ve seen where companies have no responsibility whatsoever when people work for them and this law recognizes that that trend is happening and exhilarating and as a result there is a basic insecurity that workers in our economy have been getting worse and worse by the year. So I just wanted to put a fine point on that, that, you know, we understand that in every setting the law, as written, may not be the perfect solution, but it was vitally important to us the integrity of that decision. Again, it’s been one of the biggest victories for labor rights, generated. So that’s that was the focus of the author and our focus in the process. But now, we go into a new legislative here in January, as Caitlyn mentioned, there will be legislation that addresses AB5 and perhaps where we can make some improvement. So that’s why it’s so important that we hear from you all and how your industry has reacted, the companies in your industry and how they reacted so that we can take that information back to the legislature in the author of AB5 and have an informed discussion of where we go next. Thank you again everybody, and thank you Alana for putting this together.
President Alana Evans: Absolutely, I think I can speak for all of us, myself included, have a lot of questions, and definitely curious about how this at the end is going to affect our workers. I’m going to open it up for questions. For those of you that are on the line, thank you so much, and for keeping yourselves quiet. This has been seamless so far. So thank you, Amber, because you spoke up and you’re on our board. I’ll start with you with some of your questions because I definitely know that they mirror some of the concerns that our models have. And for those of you as we get started, once someone asks a question, and then it gets answered. If you have a question to ask, just say Hi and say your name. I’ll pick you as you come. No preference based on anyone or who you are. everyone’s questions are welcome, and your comments and thoughts. So thank you and Amber, we’ll start with you.
Sergeant at Arms Amber Lynn: Thank you Steve and Caitlin on that wonderful explanation, my name is Amber Lynn I’m an officer of the Adult Performers Actors Guild Union and I’m also a worker in the industry. I am a registered trademark and I also am a corporation and one of my main businesses just informed me due to this law, we are being told immediately as Jan 1st, 2020 we will no longer be able to work for the company directly. That we have to be hired by a third party employer, and making no provisions or exceptions for California models. This basically means if I’m not hired that’s $10,000 a month out of my household income. Historically as I am a corporation of my own free will I’d be able to bypass this law to work business to business. Correct me if I’m wrong, I understand that now this law has been implemented that we can no longer work as a corporation to these businesses. Can you please explain to me why this is and why this right is being taken away from Californians and not at the federal level?
Caitlin Vega: Yes, I think I can. I think what I would say there is a business to business exemption in the law, so I don’t know why, in fact, I should say dynamex court decision has been the law of the land since April 2018 did not have any exemptions, so for a company to now say they they can’t have anybody working business to business in that context makes no sense because dynamaxx has been the law all the time. All we did was carve out some exemptions. And one of those exemptions is the business to business exemption. I will send you guys the language on that, because there are specific criterias. And so it’s hard to say in a particular situation, whether or not it fits. But it sounds like from what you’re saying, there’s a strong argument that it would. So what it seems to me is that some companies are claiming this law is the reason for things that it’s really clear to us it isn’t, so that’s part one, part two, if I didn’t say it clearly enough, but just to say, particularly, to your organization, because part of it is helpful to us to work through organizations that are able to kind of talk to a lot of different members about a lot of different situations. There are in in the bill. There are partial exemptions. So there are some there are some exemptions that apply to a specific kind of worker under specific circumstances. So depending on the nature of the situation, if you guys said to us, under these circumstances, we want to be out of dynamex, but only under the circumstances, we would certainly try to do that. We want to make it work for you. So, if you’re able to kind of, you know, listen to the feedback of your members and other workers in the industry, come up with where you don’t think that protection makes sense and just let us know. We’re not trying to force anybody to be covered by us. We want to start being as protective as we can, and then we say, hey, if you guys don’t want it, or if you don’t want it under these circumstances, then we’ll figure out a way to do that breakthrough, but we want to make sure you have some protections.
Sergeant at Arms, Amber Lynn: I appreciate you saying that so let me give you some specific circumstances okay? I am, well one of my businesses is that I am a cam model which makes me appear on camera in a chatroom. I not hired, I am an independent contractor or my trademark master and I have a fame that generates off a entirely separate business. Yes, when I am working on these sites under these circumstances I am operating within the normal course of business, but separate because I am known for bringing traffic and business as a result of what I did separate of cam work. Allow me to reiterate I am also a registered trademark and a corporation, and now I am not being allowed to do business to business anymore with this business to maintain my life and independent contractor status because when I am doing this work I’m operating under what they normally do, so therefore this company is deciding not work with California models, only the ones they hire or find another third party employer. So many models are losing their jobs due to this bill.
Caitlin Vega: so, what I will do is ask you guys to work on getting us maybe some examples of fair exemptions or ideas that would make sense to you guys if you feel that there are certain circumstances. Where my starting point assumption is that there are circumstances where it is beneficial to workers within your industries and we wouldn’t want to carve out the whole industry. What I assume is that there are settings where what you’re describing sounds like a business contracting with another business. We should be able to come up with a way to categorize that where it doesn’t jeopardize corporate settings where they need these protection or other kinds of performance partners who maybe don’t want to get rid of all of AB5, it is a tricky, tricky area with everything and everything in the bill is tricky and it feels to be like something who would be able to capture and remedy it, it’s just a question of us understanding the different typesetters standing and again, kind of putting our heads together on how to describe what’s different in a setting where we don’t want this law to apply and then particularly an aesthetic where we would want it to apply.
Secretary Kelly Pierce: Can we specifically say it’s one company and not the whole cam industry? Let’s give them context of what streamate is doing. Streamate is basically saying that they are doing a third party employer, and models who aren’t hired by this employer will no longer be able to stream on their site Jan 1st, 2020 unless they can come up with another third party employer option. So far it’s nobody else, nobody else said they will be limiting or changing California webcam models.
Caitlin Vega: I also just have to point out, because I know that companies are making threats literally in every industry. We’re hearing it from almost every single one.
Sergeant at Arms: This is not a threat
Secretary Kelly Pierce: No, they are doing this, it is not a threat, but it is just streamate at this time.
Model: They are definitely doing this not a threat, they already started.
Representative of Model: I really want to talk about today is basically what Amber Lynn is already discussing, which is this possibility of companies are going to end the relationships with all the independent contractors that are currently working for them, this is something that we might have seen a while back with the Sesta/Fosta changes, in California, where we saw a 200% increase in street work in the San Francisco area, increases in homelessness, increase in bankruptcies and other issues, monetary concerns of families and low income neighborhoods in California. And this is probably more specific to sex work. Sex work, cam work, any sort of adult industry performers are going to be the marginalized groups that are the ones that are going to be hurt most by these decisions, I believe that the work that the California Labor Fed is basing on this. Honestly, there are a lot of people that are going to do well to actually decrease their employees by the companies that they’re working for rather than independent contractors. However, I think you also might have the needs to be some exceptions down the line. I believe when Amberlynn and the Board has been discussing, companies are not just making threats, but it’s true, on January 1. If you are in California, you cannot use our website. Unless you are working through this third party contractor. I know this is something that’s coming up from a couple different sites. precisely to say that you know, we’re not really changes at this time, I think the fear in the industry is that there will be litigation down the line for this. And that basically puts it up to judge whether or not you’re a sex worker, cam industry worker, adult industry worker would be able to continue their work as an independent contractor, which obviously, I believe, based on the membership we have currently, is what a lot of these workers would like to do. I know that APAG has done a lot of great work and ensuring that adult industry workers such as film industry workers, would become employees and I think that’s amazing, that’s really great. We applaud APAG for that, honestly. And the support of the bill might not have thought of cam models. Or, for instance, full service sex workers who, under you know, under, under the exemptions and rules based on the ABC dynamex case, might be considered employees in some cases, which you can understand, would be a little bit strange. As far as the clean-up bill is consider, what sort of things do we need to do to ensure that we get the correct stories across the board, that we get the correct information, knowledge, data collected from the industry to ensure that some of those positions are included as an exemption, not something that would eventually be brought up for litigation? Not something that you know, it looks like maybe we pass a B test, it looks like it’d be really nice to see that actually add an exemption for streamers as the full service sex workers, and others in the industry are about to lose their jobs. It’s not a threat they’ve already told us they’re going to be dropping models as of Jan. 1st, 2020. Thank you so much for your time.
Caitlin Vega: Thank you that that also totally makes sense. I, I guess I should say, Sorry, I do. I work so much with different kinds of employers that I tend to call things the threats. I didn’t mean that to say empty threats like they’re not going to do them. I meant to say they’re choosing to their interpretation of AB5 is, you know, they’re choosing to to say they’re going to take an action that is obviously detrimental to their workers. And so I deemed that a threat not meaning it in the sense that they won’t actually do it just meaning they’re being kind of jerks. To your point. I think all of that makes sense. And I think from our perspective, what we need are are just clear guidelines on what you don’t want covered. Once we have that…Now, obviously, a bill doesn’t get done immediately. But once there is a bill moving that says these particular situations are not going to be covered, and that will protect them from litigation because it I assume, the other exemptions were all retroactive, meaning what we made simply said is, if we’re saying you’re not covered by design, and that right now today, we’re going to say you’ve never been covered by dynamex. So if there is pending litigation, it would basically tell the judge that the legislature didn’t want that scenario to be covered. And you would signal to your industry that they know, changes to the extent that they’re doing them in good faith trying to comply with the law, it would say to them, you don’t need to do that because the law is changing. So I would say from our standpoint, and I should be clear, all of this does have to go through our author. I don’t make unilateral decisions. She’s in charge of the bill. But I think that she is very sympathetic to these kinds of issues and really wants to make sure that workers aren’t being harmed by this. That was the whole reason we did AB5 is because we wanted to try to balance you know, saving the the law for the workers who need it. And but also clarifying it doesn’t need to apply to all workers or all situations. So, from our perspective, what we need most is, you know, either bill language kind of like, you know, that says this is the situation that we want exempted, or just a clear description that we can put into the language that says under these, you know, scenarios, the worker is back under the previous law before dynamex was passed. I think I hear your stories, I think they’re very compelling. I don’t think you need to worry too much about a story production or or convincing anyone that this makes sense. It’s more just how do we do it technically? Because that can be the challenge and how do we make sure that it doesn’t catch up, you know, workers that we don’t want to be caught up or workers who might be in a different organization that has a different perspective, because that can also be challenging.
Vice President Ruby: We can do bill language
Representative of model: Thank you so much for that answer. Would you be willing to meet with our group in Sacramento, sometime in the next two weeks to kind of go over those things?
Caitlin Vega: The next few weeks might be hard due to the holidays. I would say next month or so, absolutely. Really what Steve and I both need is the language just to get things moving.
Sergeant at Arms Amber Lynn: So if we made an exemption how would that work exactly?
Caitlin Vega: All of the exemptions, I think it’s fair to say I’m just talking them through in my head. And I think all of the exemptions kind of override the problem of doing the usual work. That’s why they needed an exemption. So for example, you know, doctors in a hospital obviously are doing the usual work of the hospital, travel agents in an agency are doing the regular work of the agency. So the fact that is that they are doing the usual work, I don’t think it’s the hard part. Honestly, I think the challenge will be with other actors who do similar types of content or provides similar types of service. I don’t know if you call it content through the webcams, like if there are other actual organizations that do want that kind of work covered, is one question. The second question is, is what you’re thinking about for the exemption limited to work done through webcam only. All that help us figure out, you know, the scope of the exemption. But just as a starting point, I would say from what I think Amber described in the first place, that seems doable to me as an exemption as long as that’s something that you guys think makes sense. And it’s just helping us figure out how to write it. And I heard you say, you can do bill language and that’s wonderful. Thank you,
Sergeant at Arms Amber Lynn: Thank you Caitlin I appreciate that!
President Alana Evans: You know Caitlin and Steve I’d like to ask, because what’s being discussed so far on this call is the things that people don’t want and how they’re concerned and from the couple of people that we’ve heard from, can you also explore the benefits that would come along with being actually labeled as an employee, how it affects tips in the state of California. Social Security, disability, things like that having to be paid via payroll because here’s my concern.
I’m just going to be honest been in this industry for 20 years. Since 1998. Majority of the people that have paid me my entire career did not pay into payroll, responsible this entire time for Social Security, and things like that to pay into it. With five years of a payroll job. Social Security is paid into for my entire retirement. The reality is for someone like me for someone like Amber, and the rest of the people on this call, by becoming an employee, you earn benefits that you would otherwise never see for some of the workers that are on this call and and yes, my bosses are on this call too, by the way, so that you will know, the people I work for on cams are on this call. So they hear what I’m saying and it’s not for my own interests, it’s for everyone to understand. There’s two sides to this story. And so for the girls that work strictly on tips in California, for employees, your bosses are not allowed to touch your tips. That’s probably the biggest financial gain for performers and I want everyone to understand that as well. So while most are only focusing on the negatives about the bill, also understand that there are positives. I don’t personally think that this was created and implemented for our industry of course. Obviously def not with cam perfor in mind, we’ve been working alongside telephony California Labor Federation, Lorena and myself, simply of how this affected performers on sets, adult actors and actresses that show up every day, they’re told where to be, told what to do, how to dress, how to perform, they are employees. And so from my stance as the union pushing for this, that’s where we were looking at our representation. It wasn’t until Streamate put out this statement that they were going to be letting California models go, except for maybe people at stripperweb.com eventhought that this affected cam models so as Caitlin has clearly stated there are obviously things that we can discuss, as well as ideas so that we can help potentially to have this carved out to not affect cam models. Just understand the benefits and the rights that you’re giving up. That also means employee taxes that are paid and if you are sick and you know, can’t work. There’s sick pay, things like that. So just be aware of everything before you make that decision and say this isn’t what I want.
Model: Can I weigh in?
President Alana Evans: Absolutely
Model: I’m mostly concerned about models who do webcam for survival work, and even though they may only make $20 that week it’s enough to pay groceries. And I believe that makes up 80% of cammodels those doing it for survival. I am a independent contractor and this is all I do. I barely break through making $46,000 a year and I’m not a corporation. I’m just a contractor..mic cuts out (technical difficulties on models end)
Secretary Kelly Pierce: Can I ask about the exemptions though Caitlin?
Caitlin Vega: Yes, of course
Secretary Kelly Pierce: This is secretary Kelly Pierce, is there a compromise where like, there could be an exemption that what models who wanted to stay independent could become an S-Corp and then people that wanted to be able to employees could stay as an employee at the cam site. Is there a way to structure that? That way there is no drama and it everyone is happy?
Caitlin Vega: Yeah, and I think that you know, there are many industries where we kind of had to bifurcated like that and actually for hairdressers is one of them because there are hairstylist who have a lot of independence and a lot of freedom and you call the shots and are kind of running their own business within a bigger salon. And there are lots of hairdressers who don’t have any of those things and are getting a lot more direction and are mostly generating money for the salon. And so, there is a similar kind of personal exemption for hairdressers only under certain circumstances where certain criteria are met. So I think that yes, most of the exemptions require certain criteria. So that hopefully that allows workers the choice. work under either form, I will just say back to Alana’s and Amber’s original point. And I totally hear that there is an interest in finding out ways to remain contractors and I think that is totally doable. I also think that there are many set for many workers. You are much better off I mean if you if you are not kind of established and have your own business, and/or even if you are, being an employee gives you an entire safety net that most of us at some point in our lives need, whether that’s, you know, unemployment, whether that’s workers comp, if you’re if you’re hurt a disability, family medical leave Social Security benefits that, you know, in my cc that is largely the way the economy was meant to operate because workers who are booted from that don’t have access to any of those benefits. And that might work for them for a certain period of life. But when you get to the part of your life where you know, your health may be impacted, you may have family obligations. You will all get older, those are the times when you realize how valuable that safety net is. And so, I think that, you know, there has been a lot of kind of misinformation put out by the opponents of this proposal, this bill and law, that have made it sound like employment is full of all of these negatives. And really, you can design an employment situation that gives you all the flexibility that allows you to work part time. But that gives you access to that whole safety net. So just going back to your question, absolutely. There are ways to come up with a compromise that workers can work under either model.
Steve Smith: Hey Steve here, I just had a quick question. So the communication that I saw from streamate indicated that what they were looking at was actually having models work through a third party agency, that would then be the employer of record. Has there been any further communication from them about I think they said in the, the email that I saw that, you know, they were going to be Figuring out details in the coming week, has there been any further communication from them about that arrangement that they were proposing? And who would be able to take advantage of that?
President Alana Evans: So as of right now they have been limited in the information they have been giving out to models. Some models have been offered employment via this third party, but they aren’t clear on the details. The company is called Cal-Gem which I believe was created by them.
Sergeant Amber Lynn: That is correct, and I also sent out a letter giving streamate ideas how to make it better for workers let go, while they were open to my ideas, they have not accepted or opened dialogue about them
(Basically what was learned is that there is a business to business exemption already, they are willing to help us carve out the bill to work for our industry, and want to make sure we are protected).
