By Diane Krausz
On September 5th, the New York State Register contained a proposed rule from the Department of Labor concerning 12NYCRR Part 186 (Part 186), entitled "Child Performers." The Members of the EASL Executive Board have been asked to provide comments to the current draft of the regulations and intends to do so by the second week in October. Any comments or questions concerning this article or the regulations may be sent to DKrausz@DianeKrausz.com.
The proposed rule establishes, consolidates, clarifies, and (in some instances) updates all regulations and requirements regarding child performers within New York State. It also, for the first time, includes and defines what is a "reality show", filling in necessary protections for minors in this popular programming genre, especially outside of Hollywood. When Part 186 becomes law, it will be the "go-to" section for producers, agents, parents, and anyone seeking comprehensive and detailed information concerning the New York State requirements for a child performer's employment. As with any new law, many issues and questions remain to be resolved, but its eventual passage will be a solid and important step forward in assisting industry professionals (including the parents of professional minors) in protecting the dual goals of income retention and safe, healthy, and appropriate working conditions for underage entertainers.
1. What the Law Does: The promulgation of this law will supplement, update, and clarify existing laws that currently deal with the area of minority, New York State, and the entertainment industry:
(a) Section 35.01 of the Arts and Cultural Affairs Law discusses the ability and circumstances of a minor in the entertainment industry to legally be bound to an agreement with an employer;
(b) Labor Law Article 4-A, including Section 151, discusses the requirement that 15 percent of all of a child performer's earnings (regardless of a New York State or Surrogate's court approval of any particular contract) be put into a so-called "Coogan" account;
(c) Estates Powers and Trust Law Article 7, Part 7, discusses the details of "Coogan" accounts as trust instruments;
(d) Education Law Article 65, Part 1, sets forth for a child the specific requirements for schooling and tutoring; e.g., such as when an appropriate teacher is to be provided; and,
(e) Section 154-a, Article 4-A of the Labor Law, which is proposed to be inserted and deals with specific regulations stating the work conditions and hours required to "safeguard the health, education, morals, and general welfare of child performers."
2. The law initially outlines its main core requirements, which are:
A. Requirements for a Parent/Guardian of a Child Performer:
(i) A Child Performer Permit, which must be obtained by a parent or legal guardian before the child may engage in services; and
(ii) A Child Performer Trust Account, which must be established by the parent or legal guardian for the child's benefit.
B. Requirements for an Employer of a Child Performer:
(i) An Employer Certificate of Eligibility, which must be obtained by an employer before the use of the child's services;
(ii) A Notice of Use of Child Performer to the Department of Labor, before each production event by employer; and
(iii) Minimum Standards for education, hours of work, as well as health and safety requirements for the child during employment.
3. The proposed Section 186 is divided into 10 subparts, which predictably begins as Purposes, scope, and exemptions (186-1); thereafter, Definitions (186-2), Responsibilities of Parents and Guardians (186-3), Responsibilities of employers (186-4); Educational Requirements (186-5); Hours and Conditions of Work (186-6); Records; Contracts (186-7); Variances (186-8); Suspension or revocation of permits and certificates (186-9); and Penalties and Appeals (186-10).
4. Some facts of which to be aware in the current draft of the regulations are:
• The law applies to all child performers (under the age of 18) who either reside or work in New York State AND the entities employing them.
• Any child performer below 16 years of age is to be accompanied throughout the work day by a "responsible person" (186-2(t)), parent, or guardian. In film, television, and other non-live type work, the responsible person is either the parent, guardian or someone named by the parent or guardian. In live theater or performances, the employer may name the person responsible if parental accompaniment is not possible.
• The law applies to live performances and film, television, and Internet/social media; however, the actual requirements for an employer producing a live performance (as opposed to any other types of performances) differ, particularly in the amount, and type of supervision ("parental vs. responsible person"), and the specific hours and days of work.
• The cost for an employer for an initial three-year Certificate of Eligibility is $350, except for theaters with fewer than 500 seats, renewals of the Certificate and "Employment Certificates of Group Eligibility" (the hiring of a number of children as a group for a certain project for not more than two days of work) which each cost $200.
• In addition to this cost, an employer will incur significant reporting, recordkeeping (required to keep all records for six years), and other compliance requirements (trust account documentation, on-site tutoring). The employer will be responsible in each instance for collecting a copy of the Child Performer Permit from the parent or guardian.
• There is no cost for obtaining a child performer's permit, with the exception of the obtaining a statement of fitness for the minor. This is a new requirement for a certification by a physician, nurse practitioner, or physician's assistant that the child performer has been examined within 12 months of the date of application or renewal and is physically fit to work.
• There is a regulation for obtaining a temporary child's permit (valid for a first time applicant for 15 days), as well as for an annual renewal (12 month) of a regular Child Performer Permit.
• The proposed regulations require employers, at their costs, to provide for the education of child performers from certified or credentialed teachers when children's schedules conflicts with school commitments or schedules. A sex offender check of each proposed teacher must be made prior to hiring.
• For infants between the ages of 15 days (NYS does not allow an infant younger than 15 days to perform; see 186-6.2) and six weeks, the proposed regulations require employers to provide a nurse with pediatric practice experience to be present at the location.
• There are specific activities and performances that are exempt from the requirement of obtaining an employer certificate or a child's permit, or both. For example, when a child performer's performance is part of the activities of a school (whether academic or artistic), or broadcast from a school, or under the supervision of a department of education, or as part of a recognized course of academic study to receive credit, it is most likely exempt from the requirements of Rule 186 - unless the program in which the child is participating is a "reality show."
• In 186-1(s), "reality show" is defined as the "visual and/or audio recording or live transmission, by any means or process now known or hereafter devised, of a child appearing as himself or herself, in motion pictures, television, visual, data, and/or sound recordings, on the Internet , or otherwise," and, shall not include the recording or live transmittal of non-fictional athletic events academic events, "such as, but not limited to, spelling bees and science fairs" and interviews in newscasts or talk shows.
• An Employer who feels that he or she would "incur significant hardship" in complying with some or all of the regulations is able to apply for a variance (in conformity with 186-8).
• The Commission may suspend or revoke an Employer's Certificate of Eligibility for good cause or if an Employer has failed to provide inaccurate or false information on an Eligibility application, or has committed a violation that may be "hazardous or detrimental to the physical or mental health, morals, education," or general welfare of a child performer, or has not obtained a parent's permission for a child on a Group Eligibility form, or has not made the required deposit into a child's trust account, or has caused a minor to engage in or be scheduled to engage in an activity that "may be hazardous or detrimental the physical or mental health, education, morals, or general welfare of a child performer."
• In addition to revocation or suspension of an Employer's Certificate of Eligibility, civil penalties may be assessed against the Employer for violation of any provision of the part of the regulations. The penalty is currently limited to $1,000 for the first violation, $2,000 for the second violation, and $3,000 for the third violation. Each violation shall constitute a separate offense. Any final order issued by the Commissioner of Labor is subject to review by the Industrial Board of Appeals (pursuant to Labor Law Section 101), prior to any appeal to a regular State court.