Beyond Decriminalization: Sex-work, Human Rights and a New ...

BEYOND DECRIMINALIZATION: Sex Work, Human Rights and a New Framework for Law Reform3. “100 percent commission”: the worker keeps only the “tip,” and is not paid a fixed amount per client.4. “Shared commission”: the client’s flat fee is split on a percentage basis between the worker and thebusiness.5. “Hourly wage”: in some cases, workers are provided an hourly wage for all of the time that theyare at work, regardless of whether or not they are with a client.What types of wage protections do sex workers want?Generally, sex workers want freedom to enter into a range of financial arrangements with theiremployers and have formal bargaining power. Decriminalization is an important first step towards thisgoal, because sex workers would be able to create clear contractual arrangements with their employerssetting out the nature and conditions of their employment, including pay. The ability to enter intolegal employment contracts would be an important first step to increasing protection of sex workersemployment rights. With legally binding contracts, sex workers would be able to seek legal recourse ifan employer violated their statutory and contractual obligations.Sex workers entering into a strict commission structure would be characterized independentcontractors, thereby making them ineligible for most labour and employment protections.When determining whether a worker is an employee or an independent contractor, one factor toconsider is whether the person has a chance of profit and a risk of loss. If they do, they are more likelyto be considered an independent contractor. While many people who work on commission are stillconsidered employees under the ESA, one factor that enters the equation is how much risk they facein conducting their work. Therefore a worker who does not receive any guaranteed minimum wageper client and only earns that which is paid to her in the form of a “tip” will likely be considered anindependent contractor, since the worker bears the entire risk for the vagaries of business, whereas anemployer must pay an employee, or make them redundant on grounds of financial exigency.Many sex workers supported the idea of a minimum wage, but the actual rate in B.C., $8 per hourat the time of writing, 22 was thought to be so low that it was not particularly helpful to sex workers.One project participant stated that a minimum wage would be appropriate, but it would have to beset at a much higher rate for sex workers:Q. Should there be rules about wages like should there be a minimum wage or . . .A. Oh definitely. If you’re working for somebody the ultimate thing is the employer’smaking money off of you. I just keep using this escort as you’d see, the internet, theycharge 200 bucks an hour and out of that you get . . . I just remembered the actualprice it was $97.15 an hour and it’s all legal. They still have to make their money butthere should be a minimum wage and their minimum wage is 97 bucks an hour so Ithink that’s fair.- male street-level sex workerEven with a guaranteed minimum hourly wage, workers would be free to negotiate higher hourlywages or a base salary, and would still be able to operate on a commission basis. At least a guaranteedminimum hourly wage would provide an important protection when work is slow or when clients failto give adequate tips.The application of the ESA minimum hourly wage would mean that sex workers would be paidfor all work, including the non-prostitution related tasks that they perform (e.g. straight massagesand escorting, receptionist work, cleaning, and administrative tasks). As one worker stated, it isimportant that, even if you do not get any clients, you get paid something for your time at work. In22 Employment Standards Regulation, B.C. Reg. 396/95, s. 15(1).97