I wrote some brief commentary previously about the Kink Live models in the past, but I want to be clear right here and now about why I support a class action lawsuit against Cybernet Entertainment, Kink.Com.
What the class action lawsuit comes down to is the difference between an independent contractor and a de facto employee. It is a very, very, very common tactic for employees to take advantage of their labor pool by calling some people “independent contractors” when they have the work load, responsibility, and challenges of a de facto employee with none of the benefits.
This lawsuit isn’t about porn, sex, kink, or trafficking. It’s about an age old trick played on labor every single day in this country. It is no more acceptable for a gardening company to pull this same bait and switch on their staff than it is for Kink.Com.
“De facto means “in fact or in reality.” A de facto employee may be referred to as an independent contractor when they are “in fact” an employee. The degree of control often influences the worker’s classification as a true independent contractor or a de facto employee.
The IRS definition of independent contractor is much more lenient than workers’ compensation use of the term. No withholding taxes and operating under a separate entity name (along with a few other qualifications) may be all that is required for the IRS to consider a worker an independent contractor.
However, workers’ compensation rules are more stringent regarding the true classification of a particular worker. The higher the degree of control over the worker, the more likely he will be considered an employee rather than an independent contractor. If the employer sets the hours and methods of doing the job; supplies the tools and materials; and is the sole source of income for the contractor the higher the likelihood that the worker is a “de facto employee” under workers’ compensation law.” -Christopher J. Boggs, CPCU, ARM, ALCM, 2008
Or, to be more clear:
There is no set definition of the term “independent contractor” and as such, one must look to the interpretations of the courts and enforcement agencies to decide if in a particular situation a worker is an employee or independent contractor. In handling a matter where employment status is an issue, that is, employee or independent contractor, DLSE starts with the presumption that the worker is an employee. Labor Code Section 3357. This is a rebuttable presumption however, and the actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which is controlling by itself. Consequently, it is necessary to closely examine the facts of each service relationship and then apply the law to those facts. For most matters before the Division of Labor Standards Enforcement (DLSE), depending on the remedial nature of the legislation at issue, this means applying the “multi-factor” or the “economic realities” test adopted by the California Supreme Court in the case of S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341. In applying the economic realities test, the most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed. Additional factors that may be considered depending on the issue involved are:
- 1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
- 2. Whether or not the work is a part of the regular business of the principal or alleged employer;
- 3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
- 4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
- 5. Whether the service rendered requires a special skill;
- 6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
- 7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
- 8. The length of time for which the services are to be performed;
- 9. The degree of permanence of the working relationship;
- 10. The method of payment, whether by time or by the job; and
- 11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.
Even where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary. (Yellow Cab Cooperative v. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288) (CLICK FOR SOURCE HERE)
The Kink Live Models:
* Were scheduled for work shifts by Cybernet Entertainment, Kink.Com, rather than designing their own indepedent work schedules.
* Were provided official work equipment including cameras, computers, sex toys, etc. The models provided hair, makeup, and wardrobe. Mostly.
* Were being supervised/observed for violations of the Kink Live code of conduct.
* All shows were taped and often used for disciplinary action.
* Model shows were very often re-edited by Kink.Com and sold for individual download on Kink.Com with no royalties or residuals going to models.
* Models were compensated for their time, not by the job.
* The models did their work solely from The Armory and they were mandated to arrive 1 hour early to their shifts.
* Kink Live model slots were referred to as “shifts.”
There is a lot to be debated because the nature of work that involves self-electrocution, anal sex, humiliating/degrading language is really up in the air. Is it a skill to be a Kink Live model or not? I think it is going to be a fascinating court trial and it will set a historic precedent. However, had Kink.Com worked like any other cam site by having models work from home and on their own self-chosen (not assigned) schedule, they would be CLEAR independent contractors. This lawsuit has merit and is worthy of a court room decision. It will also have rolling implications for the precedent it sets.
This lawsuit is not just about Kink.Com. It is about any employer that is under the impression they can move, bend, rotate, and schedule human beings in their labor force at their financial whims. This is not ethical, it is not moral, it is not business being conducted in good faith. This is an important lawsuit because it has repercussions beyond sex work and to all independent contractors in the state of California especially at a time when more and more and more people are working as “independent contractors” when their rights and responsibilities as the law is applied are drastically different.
Moreover, I was appalled by the outright lies by Peter Acworth in regards to this situaion. When asked about Maxine’s termination for labor organizaing, Peter Acworth said this:
According to Holloway, she was fired from Kink.com immediately after she started trying to get KinkLive models to sign a letter protesting the new system of payment. Peter Acworth, CEO of Kink.com, denies that she was fired at all, instead saying that she was asked to take a temporary leave. “It was only a temporary thing,” Acworth says. “We asked her to take a break because her shows had turned nonprofitable. If she’s no longer on the site for a while, then she comes back, maybe it’ll be a different story.” According to Acworth, Holloway has already been invited to perform on KinkLive at the end of June. She acknowledges the invitation, but says she received it only last week, after the situation had gone public. -SF WEEKLY ARTICLE, Chris Hall, June 18, 2012.
Thing of the matter is, Peter Acworth had been spamming this blog and my Tumblr with MULTIPLE postings of his official response to the allegations made by Kink Live employees.
“PS As for Maxine, I don’t relish what has happened, but she is currently making open threats of legal action on kink live blog postings. I am happy to reach out to her and attempt to make amends, but the fact is that KL is just not profitable with the prior payment structure. If she’s willing to join the debate about a future for kinklive that is beneficial to both models and us, she should be part of the debate starting at a meeting next week.” -Peter Acworth, June 5, 2012
“I don’t know if Maxine told you this, but KinkLive commissions were increased at the same time the minimum was removed. Those models who had figured out how to do better than the minimum are better off with the new structure and appear upset by the backlash. This tension between these two groups of models with different perspective is of concern. However, Maxine is welcome back for July bookings, and an e-mail is going out to her today.” -Peter Acworth, June 6, 2012 Email
Maxine Holloway was offered her job back after she filed suit and after there were complaints about the patently ANTI LABOR initiative of firing her for organizing models to review their work and whether or not it was independent contracting or de facto employment.
This alone depicts bad faith on the part of Peter Acworth and Kink.Com. I am also amazed at the sheer number of emails I have been receiving from former Kink.Com staff who have been continuously getting in touch with me and making claims that they were: told to lie to San Francisco city inspectors about models living inside the armory, dangerous levels of drug and alcohol inebriation by directors leading and actively creating intense BDSM scenes and bondage suspensions, equipment failures and backfires, and more.
If you have been impacted by bad faith employment standards at the Armory, please contact me and I will help put you in touch with those who can help.
As a final note, support your local indie porn producers! Buying sustainable and fair trade goods is not only more ethical, it feels better too! Maybe you like my porn (which would be super cool) but there are lots of up and coming erotic content producers all over the world who believe you can get someone off without fucking anyone else over. Also, keep in mind that Kink.Com resides in a building that Peter Acworth purchased for $14.5 MILLION. Kink.com has a staff of (clearly, very, totally) competent lawyers to protect their interests. The models have very little support and advocacy for what they do. Not only will they face serious judgement for speaking out, their employment options will be greatly reduced for coming forward, and they will be judged for being sex workers and not multi-million dollar producers by the general public purely because they are sex workers.
Lend your support and remember that this is a lawsuit about defining independent contractor and de facto employee and what the rights and responsibilities of an employer are for hiring people in either capacity.