Labor Attorney Karen Tynan Talks About COVID in the Workplace and More!

Karen Tynan is one of the world's leading Labor Attorneys... she talks about COVID in the workplace and how employers in the Adult Industry and other industries can provide safe work environments and avoid being negligent. She also gives us an update on California AB5 and new rules in place for companies in California. The information in this podcast is incredibly valuable to anyone who produces content or runs a small business! Follow Karen Tynan on Twitter: @karenattorney

Episode Transcript

(00:10):
Hi everyone, and welcome to anotherepisode of Mature Audiences Mayhem. My name
is Glenn King. It is mygreat honor to bring you this program,
this podcast where we talk about thethings that other podcasts either cannot or will
not or just fear to talk about. That is things for Mature Audiences only.
And today one of our favorite guests, she's recurring guests on the podcast

(00:33):
here. It would be not doingher justice to just say that she is
the premier and greatest labor attorney inthe adult industry. She is one of
the premier and greatest labor attorneys inthe world. I can say that with
certainty. That's a fact. Facts, that's right, and she is the

(00:54):
great. Karen Tynan got you.Welcome. It's great to see you.
So Karen and I are on Zoomtoday, so I can actually see her
for the first time in a longtime. And COVID, I feel like
we've been so far apart. Yeah, it's funny that, you know.

(01:14):
That's part of what I want totalk about today is the world of COVID
and how COVID is this new worldand in some ways I feel so isolated
because I don't get to see peoplein person anymore. But at the same
time, I actually, because ofZoom and the technologies that have been emerging
to respond to the COVID crisis,I'm seeing my mom, and I'm seeing

(01:36):
my family, and I'm seeing myfriends in some cases that I hadn't actually
visually laid eye eyes upon it along time. I think it's really cool
that we all kind of figured outways to do this. I never imagined
remote depositions, remote hearings, havingso many conferences that aren't just on high

(02:00):
phone conference line. And I likedthe Zoom platform. I'm not trying to
endorse that they're not my clients,but I actually find it's great. I
could share documents and we can dothis and record a podcast, but we
can see each other, which Ilike, Yeah, that's great. Well,
let's talk about the world of COVID. The last time we talked,

(02:23):
we were trying to figure out howto get the industry the adult film industry
started again. And here we arethree months later. I knock on wood
here, I think I'm twelve,and oh versus COVID in the tests or
maybe yea. And so we've beenshooting every week for the last three months
and there have been a lot ofcomplications and things that we had to work

(02:46):
through, but overall, I wouldsay it's been a big success. And
I wanted to get you back onhere to talk about workplaces, both in
the adult industry and in general,because everyone, whether you run a small
business or you're part of a largebusiness, we have so many issues that
have moved to the forefront here interms of you know, what happens if

(03:07):
somebody is exposed and comes to theoffice, or how do you quarantine people?
Or how do you what happens ifsomebody gets it and is in the
office, and what happens you knowwhose fault is it's and all these great
things. And let's just start byasking, you know, general question here,
how's it going in the workplaces thatare part of your client base?

(03:29):
Well, of course, having clientsother than the adult industry, and certainly
firm industries are more impacted than others, right retail, meat, processing,
warehousing, anything where there's either closework together, which the adult business also
has, right where we have peoplethat must work shoulder to shoulder and those

(03:53):
that interact with the public or interactin healthcare settings. So you know,
I have a pretty good Kalosha perspective, and I have some numbers for you,
Glenn. So since the beginning ofMarch through about August first, in

(04:14):
California, there have been five thousandand seven COVID related complaints to KLOSHA.
That's workers complaining about COVID, andthat's a variety of workplaces. So it's
it's very much across the board.Of course, heavier in healthcare, meat
processing, you know, food processing, agriculture, but certainly that's a pretty

(04:40):
big number considering the number of inspectors, the state resources. What I'm seeing,
and I'll share this anecdotally with youguys with COVID is that mask and
face covering enforcement seems to be anissue. And you and I've kind of

(05:01):
talked intermittently since March about trying toget people to wear masks. What some
of the barriers are, some people'spersonal beliefs, but in the end,
the CDC, and I think everyepidemiologist that we know says wear a mask.

(05:21):
So I think that's something that employersare still struggling with enforcement of that.
Certainly, increased sanitation, increased housekeepingis required now that seems to be
easier in the workplace because it's justa process. Just do it. I

(05:42):
did a webinar on Nevada OSHA thismorning, and in that webinar, we
were talking about the enforcement efforts inNevada. Now, Nevada is just sending
out inspectors to random workplaces and doingspot checks and is actually getting close to
ninety percent compliance. When they goout, they check on something, they

(06:05):
maybe give some advice about face coverings. Then they go back for a second
visit and they're getting very high numberson compliance. So that's a technique that
Nevada is using. And the Nevadadr Department of Industrial Relations has some pretty
good charts they update every week,and so maybe that's something that you could

(06:29):
share on Twitter land for the industry. Let's make a note and we can
share that maybe when the podcast ispublished or at another time, and we'll
let people see kind of what industriesare getting inspected. You know, what
compliance looks like. Because if youcan know what's going on in your community,
I think that's helpful for everybody.And there's so much production in Nevada.

(06:53):
I really want to make sure everybody'svery educated, not just in California,
but also in Nevada. That wouldbe great. Eight. I do
keep abreast of the Nevada numbers.Every day. I track the number of
new cases, number of hospitalizations,the positivity rate. You know, you

(07:14):
can look at these things and sortof and you know, what I'm looking
for is trending. Really, we'reseeing some great things in Nevada right now.
People. We were averaging at ourworst somewhere around twelve hundred cases a
day, twelve hundred new cases aday, and over the last let's say
week and a half to two weeks, we've been dropping pretty significantly. And

(07:40):
as I look right now at myscreen, we did six hundred new cases,
six hundred thirty two new cases yesterday, but over the last five days
it's six thirty six, five thirtytwo, four hundred and three, two
fifty three, five fifty four,six thirty two, a little bit of

(08:01):
a trend over the last three daysback up. But you can never really
look at things in terms of thatshort. I usually track things by I
make a little spreadsheet and track thethree day rolling average and the seven day
rolling average, so that you cansee is in some cases it's just a
matter of when test results are reported. They tend to come in in batches.

(08:22):
So the average is significantly dropping.Right now, we're probably right around
half or less if I look atthe three day average. Yeah, as
to where we were, deaths arestill significantly higher because that's a that lags
behind new cases by a few weeks. So right now we're seeing people pass
away, but we as a generalrule, we're seeing a lower percentage of

(08:46):
deaths from COVID. I think thatwe are seeing good treatments therapeutics in place.
They just know how to treat thesebetter than they did six months ago.
So people are a little safe.You know, you're very familiar with
testing as prevention because of the industrypractices. Right we've had testing protocols for

(09:11):
you know, over a decade,and thinking about the COVID testing when you're
testing numbers are going up. Testingas prevention. If you find out that
you have it, quarantine, youdon't expose your family members, you don't
expose your coworkers, and so it'snot something that we see talked about all

(09:33):
in mainstream. But as the testingnumbers have come up, as people are
getting tested, I think testing asprevention is playing out, and that's something
that we're just so familiar with inthis industry, but it's a little nuance.
The average person doesn't think of testingas prevention, but it is.

(09:54):
It absolutely is. And this Idon't understand why is somewhat let me to
our industry. I get tested everyMonday, and that's assuming that I'm shooting
every Wednesday. But our industry hasbeen pretty successful at screening out COVID from
getting into the workplace by testing everybody. And yet I speak to people in

(10:16):
the park every night. I getit that testing is somewhat expensive. So
maybe that's why a lot of notthat many industries are doing it. I
mean everyone. I think I'm theonly person I know who's ever even been
tested in terms of the people thatI see at the park every night.
That makes no sense. Why isn'teveryone getting a test at this point?

(10:37):
And are you getting no swab test? No, they swabbed the back of
our throat. But it is aPCR test. It is a proprietary test
that was created by Talent Testing,which is part of a larger company and
I can't remember their name at thistime of the parent company, but they

(10:58):
are also doing test for cruise linesand a lot of big industry places where
they need to make sure that they'renot passing from the employees to the public.
But do you foresee at some point, either regulations or court decisions that
cause workplaces to be forced to testtheir employees once a week or once a

(11:20):
month or something. I don't thinkwe're going to see forced testing. I
think that the federal government has beenvery clear and the testing you're talking about
that you get is very much improvedand endorsed, and if you look at
it from a workplace safety standpoint,it is part of trying to minimize a

(11:45):
hazard in the workplace. A lotof people are getting confused about the difference
between the PCR testing and then anybodytesting. And of course I'm not a
doctor, but I can tell youthat the Eocal government has said that the
antibody testing, which also tells ifyou had an infection, is not appropriate

(12:09):
for the workplace because it's identifying aprior illness and it's not really what you
would use to minimize an active hazard. So I think it's important You've been
really good about edifying people about testing, and I hope that the fans that
listen, your followers that listen willunderstand the difference and be educated about it,

(12:35):
and I think that's very important.Yeah, there are actually three types
of tests. Let me break thisdown for the listeners here. There is
the PCR test, which is thegold standard of testing as best we can
tell with the highest reliability. Thenthere's the antigen tests, and those are
what you're seeing when you're talking aboutfifteen minute fifteen minute testing where somebody's going

(13:01):
to see the President of the UnitedStates, so they test him and then
fifteen minutes later they have a resultand they let him in the door.
Those tests are much less reliable,but what they're also a lot cheaper,
so they're better for environments where you'regoing to test somebody every day or often.
The PCR test more effective, moreexpensive. And then there is the

(13:28):
antibody test. My consulting physician andthis you know, everybody's speculating in opinions
whatever. My consulting physician says,those are worthless the reliability. So it
turns out this is there's some researchnow that shows that the antibodies go away.
So okay, let me get backup a second. You use the

(13:48):
antibody test to see if you've hadCOVID previously. Theoretically, if you had
COVID last week and now you're cured, you would still have antibodies in your
system that would fight off COVID,And it would be good to know,
because if somebody's already had COVID,then there's much there's a very low probability

(14:09):
that they're going to get it again. So far, there's only one semi
confirmed case in all of the worldwhere somebody got COVID twice. But the
problem is is that apparently the antibodiesgo away. So if you think,
like I think I had COVID backin February, and I took I took
an antibody test in April and itwas negative, and I said, oh,

(14:33):
I guess I was wrong. Ididn't have COVID. Now what we're
learning is they should have figured outa way to look at my T cells.
T cells control the antibodies, andso if we could do that,
then we'd have a better idea asto who's had it and who hasn't.
So I'm just giving you the adviceof my consulting physician guys, but they

(14:54):
don't a lot of physicians at thispoint think it's there's no point to getting
an antibody test at this time anddon't get the testing incus like you.
I would think in March. Inearly March, I couldn't get a test.
When I called UM, I won'tsay my healthcare company, but it
starts with a KAY, and theyasked me two questions. Hadn't been on

(15:16):
a cruise ship and then one inmy house have COVID? Okay, And
so of course I hadn't been ona cruise ship and I didn't. Nobody
in my house had COVID. Ididn't know, and so I couldn't get
a test, and so I've neverhad a test either. And like you,

(15:39):
there's just so much in the newsand people just say COVID testing.
And I'm glad you were able totalk about the testing and you've really edified
yourself as production geared back up,because if we're not educated about it,
and we're cavalier or we're kind ofunsure, it's really gonna buy itis.

(16:00):
I think the only way for productionto continue is through effective and efficient use
of testing and compliance by those peopleon sets with the protocols. I know
you have protocols, We've talked aboutthose. There's some best practices out there
that certainly include social distancing testing,mask face shields, gloves, things like

(16:26):
that. So you know, that'sthe only way that I see the adult
industry being able to continue filming untilwe have a vaccination. Really, even
then, I don't know if thatreally solves the problem the vaccination. But
let's talk about adult sets then specifically, because so I'm a producer, which

(16:48):
makes me a small business owner,and one of my number one or two
top responsibilities is to provide a safeworking environment for anybody who works for me.
They are contra actors in Nevada.But either way, whether you're an
employee or contractor, and we're goingto talk about that in a minute here,
you as an employer are responsible forproviding a safe working environment. So

(17:11):
here's what we do on adult sets. I try to shoot on Wednesdays,
and I have everyone tests on Mondays, and that means the director, the
camera person, the makeup artist,the production manager, and then all of
the talents. Everyone gets tested forCOVID. We get the results back on
Tuesday late in the day, andthen we shoot on Wednesday morning, and

(17:36):
then everyone's temperature is taken before theyarrive into the building just to make sure
we're not seeing any symptoms. Andthen once we get on set, everyone's
wearing a mask except for the performers, and then we limit somewhat what the
performers do. We used to havespitting as a prominent feature of our videos.

(18:00):
We're not spitting anymore, at leastnot. We can't have a performers
spit in another performer's mouth or theirface. Because if so, here's the
hard part. People start to tryto if you're listening, try to stick
with me on this. We're notworried about somebody because there's so many people
confuse. We're not worried about somebodytesting on Monday and then going to a

(18:23):
party on Monday nights and getting COVIDand being contagious on Wednesday morning. That's
highly unlikely. The problem is fivedays ago or six days ago, we
don't know what that person was doing. And so we've actually seen a case
where somebody tested negative on one day, went to set and had tested again

(18:48):
to go to another set the followingday, but tested, got the results
back and we're positive on set thatday. So they were negative the day
before, positive the day after.So we have to allow for that as
a possibility and what are we goingto do. What we're going to do
at that point is we're assuming thatit is possible that one of the two

(19:11):
performers has COVID, and that's whywe want to prevent. Okay, well,
maybe if the two of them areinteracting and one of them had the
person that's on the receiving end hasa strong immune system, they won't get
COVID. But if you have theCOVID person spitting in the non COVID person's
mouth, they probably have a greaterchance of getting COVID. So that's what

(19:36):
we're trying to prevent there, whichbrings me to you. First off,
do you know of any cases yet? Have there been any cases where someone
feels like they got COVID on setand want to file a complaint or a
lawsuit against their adult employer. Ihave not heard of any. I think
that most of the production companies thatjumped back in has taken precautions like you're

(20:02):
talking about, with procedures about shooting, and also a lot of cohabitant filming,
you know, partners together UM filming, UM not doing multiple partner scenes,
just having the two people just toum minimize the people you know,

(20:22):
involved in activities and also minimizing thenumber of people on set um you know,
whether it's that your videographer is alsogoing to shoot your still photos or
you know how it works, noboyfriends on set, no, you know,
all of that kind of thing.I think even if you think,

(20:44):
well, you know, what's onemore person, well, it is one
more person and it and it increasesyour risk and and there's no reason to
have that. I think. Ithink production has changed. I don't know
about it changing back and when thatwill be, but production has changed to

(21:04):
trying to deal with this hazard,and producers should realize their legal, moral,
and frankly fiscal responsibility on the setfor safety. Right, whether you're
the employer or not. At somepoint, if you're you know, creating
this set, you're bringing everyone together, you're arguably responsible for safety. We

(21:29):
know in California, you know there'semployees. In Nevada, you guys are
using independent contractors, a little differentsetup. But in the end, whoever
has kind of direction and control overthat set needs to be the person responsible
for safety. You're going to needto provide ppe right and do and enforce

(21:59):
the pride just is that minimize We'renot going to eliminate the risk. I
mean to eliminate the risk. Youjust have to film solo, right,
you have to have someone do caming. But if you're going to have content
in a more traditional sense, itis about minimizing the hazard of COVID.

(22:22):
Yeah, yeah, absolutely. Asan example, we had a scene planned
that got canceled because of COVID rightwhen the shutdown happened in April, we
had a fight consultant coming in tohelp us. We wanted to do a
wrestling video, and so we hadan expert on pro wrestling and fighting and
so on come in to show ushow to hit each other and wrestle without

(22:45):
hurting each other. And I've putthat scene off. I can't do it
right now. I don't want tohave an extra person on set. I
think the producers need to think ofthis as the new way of doing things
until further notice, like way,eating it out is not an option.
I don't think. I don't.I just don't see how I fully expect
next April for us to still beoperating under these same restrictions. It wouldn't

(23:11):
surprise me. I think there's somany variables. We don't even know about
a day for a vaccine. Wedon't know how it'll be rolled out.
Certainly, my elderly mother is goingto get the vaccine before me, right,
I mean that just makes sense,and so we don't even know.
I think that for producers, performers, those people working in the industry,

(23:38):
just trying to accept this as thenorm, work within this system of safety
protocols and make your best efforts.Don't be cavalier about being a young person.
We all see the news. Weknow that it's not just that elderly
or someone with an underlying condition whois going to become severely ill. And

(24:03):
also the idea that you would comeon set and be exposed and then expose
others, people that you love orcare about, or in your household.
So with that, I think you'reright. The safety protocols now this testing,
like I know some people are gettingtesting more than once a week because

(24:25):
they're shooting more than once a week. I think they need to plan on
continuing with that and you know,for the foreseeable future. And then the
other part that I like that youmentioned that I would like for other producers
to adopt is an awareness of lookingat the data, looking for hot spots
like you look at the Nevada websiteright right, and so having an awareness,

(24:49):
am I in a place and myshooting where there is heavy community spread?
Am I? You know? Bringingflying people in from a place where
there's community spread. You know,go online, all of this information is
very available, and I think thatkind of edification, like you're talking about

(25:10):
that awareness and trying to be moreeducated about what is happening and where the
risk are is what every producer shouldbe doing. Great point, absolutely,
especially when you're talking about flying peoplein, you know, which is something
that you know I said I wasn'tgoing to do a few months back.

(25:33):
But then you know what happens isan agent calls and says, hey,
this super duper star performer is comingto town. Do you want to shoot
her? This may be your onlyopportunity in the next twelve months. And
so I end up shooting her.And I think that's a again, you
know, correct me if I'm wrong, but I believe it's my responsibility.
If that performer ends up getting iton the plane and infects somebody on set,

(26:00):
you know, we could end upin a situation where I'm liable,
and I guess let's talk about Walmartand Safe Way. Then I know those
are two companies that have already beensued by their employees for providing environments where
the employees feel like they got COVIDas a result of their negligence in some
form or fashion. So what arewe seeing in terms of nationwide cases of

(26:25):
people suing their employers? While wesee a couple of different kind of I
would call it classifications of lawsuits aroundCOVID. You have, even though you
have workers compensation exclusivity, a lotof attorneys are trying to get around that.
They want to have a civil lawsuitaround COVID, so they're trying to
find ways around that for employees.We're seeing those lawsuits where planiffs attorneys are

(26:53):
saying, Hey, the workers compensationbargain is for if I come to work
in a way where I'm provided for. We have this bargain where I'm going
to work for you in a safeway and you're going to provide me a
safe workplace. We're not meeting.You're into the bargain, so I should
get out of workers camp. That'sone theory that plaintifs attorneys are having.

(27:15):
What we're also seeing our lawsuits wheresomeone, let's say they go to work
at Glen's Manufacturing and they operate thepunch press and another punch press operator has
COVID. They get COVID at workat Glenn's company. Then they come home
and they give COVID to their wife. Well, now we're seeing lawsuits where

(27:41):
wife is suing Glenn. Yes,so there's a couple of big cases in
New York and in California where spousesor household members have sued the employers.
Those are in very earthly stages.Well, that brings us to a discussion

(28:02):
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need for insurance in the world ofproduction. I want to talk about another
kind of lawsuit that we've seen,and I wrote an article about it about

(30:38):
two months ago, where people atwork are suing their employer for creating a
public nuisance. Now, public nuisanceis kind of a legal term, and
people think, oh, isn't thatwhere like the Smelly Factory creates a nuisance,

(30:59):
and all of us neighbors hated.Well, that's that is traditionally what
a public nuisance is. It isyou see it in property litigation, what
they called real property litigation. Butnow there are some attorneys suing and there
was a major fast food chain thatwas sued in Oakland around the theory that

(31:26):
because their their employees are interacting withthe public and their employees have had COVID,
that it's a public nuisance, it'sharming the public, it's harming the
community. That's another area that wasnever anticipated. Wasn't it anything anyone was
talking about back in March. Butit's something that's developed. And if we

(31:49):
could roll this into a conversation aboutinsurance, Glenn, I think a lot
of people think that their insurance,whether their homeowners or maybe they've got a
policy for their production company. Um, they're thinking that, Well, if
I get sued, I'm going totake that twenty page lawsuit and I'm going

(32:12):
to scan it and send it tomy insurance broker, and I'm just gonna,
you know, wipe my hands andwalk away. And unfortunately, I
don't think that's what's going to happen. So Okay, that's yes, that's
a can of worms. Let's openthat up. So somebody gets COVID on
your setting. Now obviously that's yourworkers comp insurance that you're talking about,

(32:35):
But you don't think workers comp insurance, which actually brings us to the to
the Kink case, which I thinkyou were involved in and can't talk about
specifically, but you could talk aboutinsurance as it has it relates any work
workplace. So I'll mention the Kinkcase real quickly. It's just so people
understand the perspective here. There wasan adult industry performer who got HIV and

(33:02):
they had performed in a scene thatthey believe was a dangerous scene. And
so they concluded this performer and Ithink there was her boyfriend also got HIV
and then one other person that wasinvolved with them somehow, so they got
HIV and they blamed it on theemployer who had put them in the scene.

(33:24):
Now you could you could also ifyou're doing an investigation, you're you're
them, You're going to point toother places they might have gotten HIV.
And that's certainly what their argument was. Since there wasn't a case where two
performers who had performed together. Actuallyboth got it. But the part that's

(33:47):
relevant here is that the employer wantedthe insurance company to pay for this,
and the court ruled recently that theinsurance company would not be on the hook
for this. And that's what we'retalking about here, right, is that
you're not going to be able tocount on your insurance company to be responsible

(34:07):
for something that can't be proven actuallyhappened on your in your employee. Is
that about the long and short ofit that it is. And let me
say Glenn, that insurance is complicated. We all have car insurance, right
and so we know we get inIraq, we call our insurance agent,

(34:27):
fill out the forms. Maybe ifyou're hurt, you know, it gets
a little complicated with the medical partof it. But when when you have
insurance for your business. Maybe somepeople do have workers Comp because they're in
California, they have employees, theyhave the workers Comp insurance. You know,
there's a lot of there's kind ofthe top five carriers, and it

(34:52):
should be the matter of filing aform and getting coverage and the person getting
benefits. General liability insurance for yourpremises or your business where activities are taking
place is the kind of insurance thatwe're talking about. And my admonition and

(35:14):
a best practice for companies is totake a look at the addendums and exclusions,
because many insurance policies have exclusions andthey've developed over time because they've ended
up paying money out on claims.For example, companies many years ago paid

(35:36):
out massive claims for Legionnaire's disease,right, And so now there's a communicable
disease exclusion, and many policies,well, guess what, COVID's a communicable
disease. Right. So we hada conversation on an FSC attorney call where
a bunch of US attorneys are talking, and you know, because I've done

(35:59):
so much insurance, it's litigation.I wouldn't say I corrected a fellow attorney.
I would say I edified them andjust said, look, you know,
the idea that you know you're goingto have a policy that doesn't have
an exclusion for communicable diseases isn't veryrealistic. You may be that kind of

(36:19):
one in a hundred or two ina hundred that does not likely. So
typical policies have exclusions for communicable diseases. Typical policies have exclusions for sexual assaults.
That is based on prior cases involvingchurches and youth organizations where insurance companies

(36:43):
were left hold in the bag forassaulted behavior either among you know, in
a power dynamic from an adult toa child or you know, an adult
to another an adult. So mostpolicies are going to have exclusions for sexual
assault or or intentional torts like battery. So I think what I'd like for

(37:05):
the takeaway for you know, peoplein the industry is to just be aware
that, yes, if you haveinsurance, it's great. If someone slips
and falls, you know, tripsover a power cord, chips their tooth
while eating a sandwich during lunch,or you know, pick pick an event
like that, you're going to havecoverage likely. But but there are complexities

(37:32):
and they need to make sure they'recommunicating with their broker and understand because look
at COVID case. You know,I'm not a nurse or a medical professional,
but I think we all have asense of what a day in the
ICU probably cost on a hospital bill. Right, It's not thirty two dollars,
it's not three hundred dollars, it'snot three thousand. It's probably thirty

(37:55):
thousand or some forman an amount.So if you get someone really sick from
COVID and they spend two weeks inthe ICU and then they have to recover,
you know, you're talking about medicalbills that could be a million dollars.
I think they have insurance. Butyes, yeah, there's a lot
of the industry does not have healthinsurance. A lot of performers in our

(38:17):
industry, So yeah, they're youngand may not have you know, healthcare
coverage. So I don't think that'sthe average COVID case. Obviously, I
read the news and the average caseif you had a hundred people that got
COVID, a hundred of them wouldn'tend up in the ICU, not even

(38:37):
fifty of them, not even seventyof them. But certainly you know more
than one or two would end upin the hospital if you just look at
the numbers. So being mindful ofyour risk and protecting your assets is important.
I think it's kind of a secondtier of risk manage compared to managing

(39:01):
your risk on the set. AndI just like for people in the business
to you know, try to bea little bit sophisticated in how you run
your business and understand what is myinsurance? You know, if someone does
trip over a corn, what wouldI do if they wrote their leg?

(39:21):
Would I roll them up to thehospital and tell them to tuck and roll
and kick them out? You knowwhat am I going to do? Yeah?
Well, let's talk about specific scenariosthen. Okay, So in scenario
one, somebody, you know,two performers are performing together on set,
five day or a week later,one of them tests positive for COVID.

(39:45):
We test everyone else that was onset, and nobody else has nobody else
test positive. So that person gotCOVID. They think they got it on
your set, but there's no directtracing that shows anybody else. Scenario two
is where you get one person testpositive for COVID and then the person that

(40:06):
performed with them, or the makeupartist or somebody else that was on set
that day also tests positive, andthen you have a direct link. Now,
let's assume for a moment that Ihad everybody signed as a producer.
I had everybody sign a COVID waiversaying that they understand that they're facing risk
here. And let's assume that they'reall contractors, since we're talking about at

(40:27):
the moment, but I mean takeit from both angles. What kind of
trouble is the producer in at thatpoint? Well, you talked about a
waiver, and I think it's agood time to talk about that as a
practice that many producers are using.So many producers are having performers or crews,

(40:50):
especially if they're independent contractors, signa COVID waiver or acknowledgement. And
what it says is, HI,I'm glad, I'm performer, I'm going
to perform today. I understand therisks. I'm waving my right to sue
you. I'm assuming all the risks, and I'm averring and promising that today

(41:14):
on you know, August whatever,twenty twenty. I think that that is
also a best practice. They're notnecessarily bulletproof. Of course, any plants
attorney's going to say, well,the waiver was signed under dress, Glenn
didn't really read it. It withinten point fawn not twelve point fawd.
You know, little things like that. But but isn't the best practice absolutely

(41:38):
to have that COVID waiver? AndI think that's what we're going to see
through twenty twenty one is people acknowledgingthat if they are going to work on
an adult set that they are assumingcertain risk, much like if they chose
to go to an amusement park orsomething else. Now, in the case

(42:01):
where we have just the one personon a set that ends up being COVID
positive, when you can't really figureout where they got it, I think
the evidence or the standard is reallygoing to be, Look, we can't
show that that person got it hereat work. And you know, if

(42:24):
you ever had either Ocean investigate youor a lawsuit or the Department of Public
Health show up, they could showup and knock on your door. I
think you could say, hey,I interviewed everybody, we were all tested,
we wore masks, we social distanced. We can't figure out where they
got it. That's assuming that youproducer followed proper protocols, which is what

(42:46):
we're trying to emphasize today. Right. And you compare that to your second
scenario where you end up with twopeople that test positive for COVID, it's
a little tougher sell, right,which one had at first? Did the
transmission happen on set? Did thetransmission happen if they took the train to

(43:06):
Glens to shoot that day, andthat's when you have to really look at
you know, was their community spread, were they from the same community,
you know, did they carpool thatday? Was there some time on the
set where people lowered their mask?And so, you know, coming back
to that reminder that you just saidof, hey, that's why you follow

(43:30):
the protocols, because hindsight is goingto be twenty twenty. And would you
want to be the person answering thequestion of well, why didn't you wear
a mask? They cost three centsapiece. You know, yeah, we
all hate wearing them, But weren'tyou interested in health and safety that day?

(43:51):
You know, why weren't people wearinggloves and cleaning the bathroom? You
know all those kind of questions.It's hard to go back and explain why
you didn't do something as simple aswearing mass social distance sanitizer set or have
people tested and take a look attheir results. So I think what you're
saying is, if I could summarizefor our listeners, is that if you,

(44:13):
as an employer or producer, wantto protect yourself, the most important
thing to do is to provide anenvironment that no one can accuse you of
negligence, and no one you canaccuse you of not providing reasonable safety protocols
that adhere to industry standard. Correctfair, That's very fair, Glenn,
and I think that for many producers. And we know how the industry works

(44:38):
now and how much money people makepursing, and certainly there's not particular fat
to cut as far as money,you know, on a per seen basis.
So I can see how people think, oh God, one more thing
for me to spend money on.But think about what we just talk about.

(45:00):
With no insurance coverage, it's likedriving a car without insurance down the
freeway. Don't do it. You'veyou've got to wear your seat pelt.
You've got to do those activities thathelp minimize your risk, the harm on
the set, the risk to yourbusiness. Um, you know, don't
be cavalier. I've heard other peopleover the year, Sam judgment proof my

(45:22):
wife owns the house, my car. Sure you know you've heard it too,
Bland, Come on, yes,no, that's a saying. I
have heard people speak like that,right, and nobody's going to sue me
because I don't have any money.Is the is the you know, prevailing
we've thought, and it's like,okay, well, first off, you

(45:43):
have some money, doesn't mean you'renot going to be named in the in
the lawsuit for whatever company it wasthat you made content for and sold it
to. Right, It doesn't meanthat you know, you're just going to
write a letter to the attorney afterthe lass gets filed and say, you
know, dear Karen Tinah, Isee that you represent Glenn. I don't

(46:06):
have any money, please go away? Yeah? Absolutely, and um so
especially and I think what happened sometimesis people that feel their judgment proof um
are also posting on Twitter, youknow, pictures of them and their Lamborghini
or their Rolls Royce or whatever.Well, then it's a hard question.

(46:27):
You know, well, you youhave the money for this Rolls Royce.
Why don't you have money to payfor Glenn's COVID recovery and his respiratory therapist.
Yeah, that's a good question.I will well, I'll relate in
a specific incident. No, you'resmiling because you somehow I've struck a nerve
I can I wish people can seesmiling. Well, I mean, I've

(46:52):
been around for so many years andI've heard those exact things that you have
related where you've got people who theybrag on Twitter about the millions of dollars
they have, they drive around inhummers or whatever expensive vehicle, and then
when it comes time to pay outfor an incident that happened on set,
they immediately say, we got zeromoney in the bank, and you know,

(47:15):
the story changes. And so maybemy advice to people is don't be
so visible with your money to startwith. I mean, heck, you
know, make your bag and spendit on things, and don't brag about
it constantly. I knew a performerwho went on Instagram rolling in money.
She had all this cash and sheput it on her bed and she was

(47:37):
rolling in it, showing everybody howmuch money she has, and then she
got robbed a few days later.But I want to relate a specific incident
that happened for producers to think abouthere and maybe get Karen's thoughts on it.
But just a couple of weeks ago, we had a performer we were
shooting a scene. On a Wednesday, we all went and tested. I

(47:57):
spent I paid for everyone to havea COVID test that was going to be
on set. And then on Tuesday, she said, I'm having car troubles
and I'm in Los Angeles right now. I can't get to Nevada on Wednesday
for the scene. So then yougot the problem of She says, okay,
but I'll be there Thursday. Atthat point, it was too late
in the day for all of usto go get tested again to be able

(48:20):
to do this. Now, theindustry standard is two days right now,
but three days is viable. It'ssomething that the agencies are agreeing is reasonable
under circumstances like this. We pushedit and we were going to work with
everybody on a three day test.Then she checks in the next day and

(48:40):
says I can't make it. Didn'tgive us a reason, but says I
need to push the scene to Friday. I said, well, we have
to test again. At that point, this is the thing, guys,
producers. Let's get Karen's opinion.But I believe if I would have said,
let's just go on a fourth dayon that test, I would have

(49:04):
opened us up to a lot moredanger in terms of a lawsuit on us
once I started going outside of industryguidelines. Right right, of course,
whenever you're in litigation or an investigation, whether it Department of Public Health,
labor or whatever. That's always twentytwenty as to why you did something or

(49:29):
why you didn't do something, Andso I do think you're right. A
common question in any type of whetherit's a deposition litigating, whatever it is,
is what is the standard industry practice? And sometimes you might be litigating.

(49:49):
I had a case in a Lettisfactory once about how the gals chopped
the little heads off the cabbage andthrow the cabbage down the conveyor belt.
And there is an industry practice forhow many gals are up there. They've
got these little like many machetes,and they're they're going away, chop,
chop, chop, and the cabbagegoes onto the conveyor belt at a certain
speed and then it goes up intothis giant salad spinner. And and it's

(50:15):
very standard in that salad washing industryand industry standards are generally very relevant,
and deviation from an accepted industry standardum can be very important, and state
agencies, whether it's a Department ofPublic Health or a Department of Industrial relations,

(50:37):
will consider that. And I've heardother people. Are you the other
side, Glenn, about well,you know, our testing protocols aren't law.
It's just something the FSC says,so it doesn't really matter right right,
But here's here's let me be devil'sadvocate. Um. There are industry

(51:00):
standard practices in content creation, abouttesting, about how people are paid,
about typical activities on the set,about whether or not you know you have
a bathroom, or expectations about makeupor ordrobe, things like that that you

(51:20):
would know if I if I wasdeposing you, you would be able to
answer questions about typical industry practices.When you're deviating from those practices, you
are making yourself vulnerable. That's theword we want to use. Vulnerable.
Why make yourself vulnerable. Maybe you'llbe lucky and you'll just march on and
nothing will happen, But why bevulnerable when you do not need to be

(51:45):
vulnerable? There you go. Sothe bottom line is listeners, if you're
producer, understand industry standards. It'svery important. And by the way,
I get it right now, theFSC had a big falling out with TTS
with talent Testing. Talent Testing isthe only provider that's providing reasonably priced COVID

(52:07):
tests that come back the next day. So right now a lot of producers
are using TTS and not really usingthe FSC. And my advice, see
you guys then is to contact thetalent agents. Ask the agents what are
And I'm not talking about some dudewho represents his girlfriend out of Ohio.

(52:27):
I'm talking about ATMLA and OC andI'm one oh one modeling. You know,
the ones that are at the forefrontof this and have the most performers,
and they can tell you. AndI talked to them all the time
about this and they tell me what, you know, what is industry standards
right now? If everyone else isdoing two days, then you can't do

(52:51):
five days without making yourself vulnerable.Go ahead, and I would trust what
Sandra or Mark says that those twoagencies you were talking about, they know
what's happening, their boots on theground, and um, I frankly also
use them as a resource at timesabout you know, typical practices or what's

(53:14):
happening with you know, a particularcompany, or how things are working out,
and um you know, because theythey're also trying to minimize their risk
as talent agents. They are licensedby the State of California or the state
of Nevada or whatever state they're operatingin, and they have particular standards,
and I know, um, youknow, Mark Scheckter is a friend of

(53:37):
mine. Sanders a friend of minean OC Modeling, And they take their
personal responsibility very seriously, and theytake their license m very seriously. They
guard it as an asset. Theyunderstand their ethical duties. And so I
like how you said, you knowwhen you when you talk about talking to

(54:00):
agents about this, Yeah, it'snot it's not somebody's boyfriend. You're talking
about the professional licensed agents. Yeah. Absolutely, And to be fair,
um, Chris from Fox Modeling isvery much on it. Um so is
who or the other spiegler. I'vetalked to him about it, but at
one oh one is very much tunedinto these things. Um. I just

(54:22):
I don't know if I've spoken indetail to any other agents, but a
lot of the other agents are heavilyinvolved as well, So check in with
them. Okay, So let's moveon here. Well, I have one
more thought about COVID, and let'sjust then we'll move on because I sent
Karen a list of like twenty topicsto talk about. And then, as

(54:43):
usual, we're almost at a timeand we're we've gotten through one. But
there are a couple of other importantthings I got to ask you about.
But I just want to leave you, guys with the thought about COVID.
If you're thinking about waiting it outagain, let me come back to what
I've learned about vaccines. My informationcould be slightly outdated, but the last
time I checked, the flu vaccinewas about sixty percent effective. Sixty percent,

(55:06):
so that means four out of everyten people who take the vaccine it
doesn't help them one way or theother. And as a result, a
lot of people still get the fluevery year, even with the vaccine that
comes out every year. This vaccinethat's going to come out, which is
being rushed by the way, wehave no idea whether it's sixty percent reliable

(55:29):
or sixty five percent reliable or fiftyfive percent reliable. But it's not going
to be a one hundred percent reliableThere's never been a vaccine I don't think,
although maybe polio is one hundred percentreliable. I could be wrong,
But the point is is that thisis a lot you need to think in
terms of the flu vaccine reliability ascompared to the polio vaccine reliability. And

(55:50):
don't think that this is going tobe over the minute that the President announces
that there's a vaccine. Fair enough, fair enough. So let's move on.
We've got a couple of important things. I need to ask Karen for
an update on AB five, becauseI'm not in California and I have no
idea how it's going. How's itgoing? Is everybody now employees in the

(56:12):
adult industry pretty much there's been norelief from ABE five, which of course
change the labor code and pretty muchenacted the Dynamics test, the ABC test,
and transitioned us from the Barrello test, and so now it's much much

(56:37):
more difficult to be an independent contractor. Most people are employees now except for
some very narrow exceptions. And sowith that, it goes back to our
discussion about forty minutes ago about employerliability producer liability. Last year when AB
five was enacted and you know,passed by the legislature and signed by Governor

(56:59):
Knewso know many people said, oh, you know, these ride sharing companies
and mainstream are going to go toSacramento and lobby and get it all changed
back. And I knew that wasn'ttrue, and you know, kind of
waiting for the white knight on thewhite horse with the sword. That's never

(57:19):
a good business plan, just inmy humble opinion. Right, So it
didn't happen. If you're in California, certainly there are still people who say,
well, I'm going to ignore itand just do my own thing.
You're at risk for edd audits,lawsuits and everything else. AB five's here
to stay with the ABC test anda lot of difficulties in trying to classify

(57:45):
people as independent contractors. That wasit in forty five seconds? How is
that? Glenn fantastic? Can letme translate that? For producers, if
you're a producer in the state ofCalifornia, you need to use payroll to
pay your performers, your makeup artist, your crew, probably your video editor.
You need to start doing this becauseif you don't, eventually the state

(58:08):
of California is going to come downon you and get you for They're not
just going to get you for lastweek. They're gonna get you for months
and months with big fines. Isthat right. They typically do a five
quarter or audit, so that's ayear and a quarter and the unpaid payroll
taxes will be due at ten percent, ten percent interest, and twenty five

(58:34):
percent penalty. So do the math. And I've been around this business over
ten years now, working with productioncompanies, talent agencies, and performers.
I've handled many an add audit evenunder the old standard, and the dollars
can add up quickly if you're producingone or two times a week. Yeah,

(58:55):
so if you're a producer and you'redoing a one boy girl scene a
week, your costs are gonna besomewhere around eighty thousand a year. That's
eight thousand dollars in the ten percenttaxes that you didn't pay, plus fines
that you're gonna get hit for justfor the last twelve months of what you
didn't do. Excuse me. That'sjust the talent costs. Then you add

(59:16):
in the makeup artist and the videoeditor and anybody else that and basically the
test is if they contribute to theend product, then you need to think
of them as an employee and nota contractor. So you know, I
listen to what she's saying. Guys, A lot of you are probably ignoring

(59:37):
this at this point. Have weseen the state of California go after anybody
yet, I haven't heard of anyonein the business, but they're quite a
few easy audits. They were startingprior to COVID. Of course, COVID's
really jack things up with the unemploymentand audits and disability and all that.

(59:57):
But they'll eventually come around. Neverfear. The gears and cogs of the
state government turned. They turned slowly, but they don't stop turning. Leab.
Yes, yes, the state ofCalifornia is as aggressive as any state
I've ever heard of. So I'mjust telling you, guys, this is

(01:00:19):
what we're doing this may By theway, guys, you know, I'll
say it again at the end ofthe podcast, but thank you Karen for
coming on. She's donating her timetoday. She usually gets paid a pretty
good significant rate per hour for hertime. So this is just her trying
to give you free advice on howyou can protect your business from horrible harm.
So please just give some thought towhat she's saying here in terms of

(01:00:44):
how you're handling your performers in thestate of California. Okay, so let's
see. There was one other thingthat I thought was very important to ask
her about, and that is ahso supposedly there was an incident on set.
A lot of allegeds and suppose it'shere, but let's just talk theoretically.

(01:01:05):
Producer goes out. So for thoseof you don't understand how the industry
works, most companies don't have astudio that they shoot in every week.
I think that's the right way todo it, by the way, is
to just get your own studio,but most of them don't, So they
rent houses to shoot in on aevery time basis and they just pay at
the end of the day for thehouse that they rented. We call that

(01:01:28):
location scouting, a location rental.Supposedly, a producer over the last few
weeks found a location that was downin a very unsafe neighborhood of Los Angeles.
Believe it or not, there areunsafe neighborhoods in Los Angeles. The
story, as it goes on oneof the news websites, is that then

(01:01:50):
the performers were terrified walking into thislocation and parking their cars at this location.
Somebody was harassing a performer on theway in. You know, they
spotted a hot girl going into thisplace and they were like, oh,
we gotta see the guy then brokeinto or walked in, depending on what
kind of security they had at thislocation, pull out a gun and supposedly

(01:02:13):
there was some kind of a confrontationwith that person and the people that were
on sick. So obviously you're notpart of this case. Otherwise you would
have already said I can't talk aboutthis. No, I hadn't heard about
it. Yeah, I mean Idon't. It's better to talk about hypothetically
anyway, because stories tend to beexaggerated and I have no idea what really

(01:02:37):
happened here. But it brings upinteresting questions in terms of producer liability and
agent liability. The article that Iread actually was talking about agent liability and
how this agent should be ashamed.I don't know of any agent that really
googles any address and looks at theGoogle Visual map to determine what kind of
nice places are around there. Solet's start with the producer. Obviously,

(01:03:01):
the producer was responsible for providing asafe work environment. Yes, and and
if you're in California, you dohave a duty to protect your employees from
workplace violence. Now, now inCalifornia, there's a standard for healthcare because

(01:03:22):
there's so much violence, Like inpsych units and in emergency rooms things like
that. But but just for allother industries, there's just more of a
general duty to provide a safe workplace, and so a location like that,
I think, you know, itcomes back to what we were saying about

(01:03:43):
Hindsights twenty twenty. Do you wantto be the person they're answering, well,
I picked this place because it wascheap. You know, well,
didn't you realize you know, thecrime rate in the area, or you
know, the fact that there weredisabled cars or whatever the factors are right
that might lead you to believe thata place was unsafe. So I think

(01:04:06):
the producer does have a duty,And I know what people talk about with
talent agents. There is under theTalent Agency Code, talent agent does have
a duty to make sure that theplace they're sending talent is a safe location.
It's kind of vaguely worded and it'svery old labor code, but it

(01:04:29):
is also true that talent agents havea duty. And allegations around unsafe work
locations related to talent agents have traditionallybeen around bachelor parties, just to share
that anecdotally, where maybe a performerends up being contract to go to a
bachelor party and then it's not thesafe kind of set or location she was

(01:04:54):
expecting, and there can be somedisputes around that. So yeah, the
producer has a duty, and yes, the talent agent see has a duty.
And I'm now I'm interested. Whenwe get done with our podcast,
I'm gonna have to go on thenews sites and see. Yeah, check
that out the news site. Youknow. Their angle is that these performers

(01:05:19):
can sue for the trauma that theyyou know, for the mental trauma that
they endured as a result of this. I don't know. I think that's
a tougher sell to basically have aperson go to court and say, well,
I was scared as somebody waved agun in our general direction, and
so I need you to give meone hundred thousand dollars or whatever makes it

(01:05:39):
worthwhile to sue. But certainly ifsomebody had actually been robbed or shot right,
then you've got a case. Ido find it fascinating to wonder if
agents need to think about that andstart checking locations in some way to make
sure that they're safe. Problem.All right, Well, Karen, as

(01:06:04):
always, you're so gracious to giveyour time to people in the industry like
this, she can't advertise her services, so I want to do it for
her here and point out that A. If you are a producer and you
need a COVID waivers, this iswhere I got mine. Karen has one
that she can modify or customize tomeet your specific needs, so feel free

(01:06:28):
to contact her about that. Andalso, if you are a producer or
agent, or anybody who has anykind of a concern about a legal issue
that may arise from your productions,you should give Karen a retainer because the
person that has the retainer already isthe one that's going to be able to
hire her, as opposed to whenyou already. If you've waited too long,

(01:06:50):
then you both get into a positionwhere you're both parties are racing to
sign you up. Is that no? Oh, you froze up on me.
I couldn't hear anything you said forthe last minute. I'm sorry.
Sorry, Now I'm getting a thingon my screen saying your internet connection is
unstable. Damn well hopefully okay,let me cover that again. I was

(01:07:10):
just pointing out that you want tohire Karen in advance if you are a
producer, because in the end,if there is. If you wait until
there's already a labor dispute, theperson that already has the retainer is going
to be the one who gets touse Karen services if you get if otherwise,
you're gonna end up in a race. Everyone knows about Karen. So

(01:07:33):
that's why I'm saying, get yourrelationship with Karen now, you're very kind.
I've enjoyed lots of litigation and adviceand counsel work over the years with
the industry. I've had some funfights about some fun fights, and I
miss didn't get to go to Miamiand May, and it looks like it'll

(01:07:57):
be a long time before I seea lot of people that I used to
enjoy having a cranberry juice and vodkawith. But there is next year,
and we'll hope for that. Let'shope. So let's hope we can all
see each other again in twenty twentytwo most likely. Now who knows,
So your Twitter information is again,go ahead and tell everybody how they can

(01:08:19):
contact you. I'm on Twitter.I was an early adopter, so it's
at Karen Attorney, which is easy, and I tend to post some fun
stuff on Twitter and some educational things, and as laws change, I try
to keep everybody updated, so goahead and follow me. And of course

(01:08:42):
Glenn and I post things together quitea bit, so make sure. Glenn's
one of my favorites in this business. And I appreciate all that he does
because this is above and beyond forother producers, for fans, and for
four performers. So let's keep itup. Let's do so, we'll plan

(01:09:02):
on if she'll come again, forKaren to come back in a few months,
So feel free always to send mean email or a tweet saying,
hey, next time that you haveKaren tinan on, could you ask her
about this topic here? And we'lltry to keep this as an ongoing,
say quarterly thing for the industry wherewe continue to get her excellent advice without

(01:09:23):
having to pay her her exorbitant rateper hour. So okay, there you
go. I'm Glenn King xxx onTwitter. That's gl E n N K
I n g x x X.If you're listening to the podcast for the
first time, please hit the subscribebutton give us a good review. All
of those things. We thank youagain, Karen, and we thank everyone

(01:09:45):
who listens to mature audiences ma'am,the team mixing