Getting Good at Holding Our Breath 

Each week, we continue to hold our collective breath while waiting for the New York Department of Labor (DOL) to publish the amendments to their proposed changes to the Child Performer regulations.  News ~ Child Performers Coalition (CPC) has received a response to our Freedom of Information Law (FOIL) Request filed December 20, 2010. 

In our FOIL Request, we asked for:

"documents supporting the Regulatory Impact Statement (RIS) prepared by your agency [DOL] as required by the New York State Administrative Procedure Act (SAPA) . . . "  "To that end, I respectfully request documents in support of your agencies RIS including, but not limited to, research, reports, studies, data collection, analysis, interviews and alternatives explored.  In addition, and of particular interest, are the following Cost-Benefit Assessment issues:  Cost to Child Performers;  Cost to Employers;  Cost to Off-Site Education Tutors;  Cost to NY Economy;  Cost to NYC Economy;  Cost to Department of Labor."

Specifically, CPC requested the following documents:

Physician Certificate Form

Employer Certificate of Group Eligibility Form

Procedures to Protect Against HIPAA Violations

Eating Disorder Guidelines to be reviewed by child performer parents

The DOL "conduct[ed] a search of approximately seven years of records to identify records that are relevant to [our] request." ". . . the "total amount of material to be released consists of 850 pages."  There is a statutory charge of $0.25 per page for copying.  Yesterday, CPC sent the DOL a check in the amount of $212.50 to cover the cost of copying 850 pages. 

Furthermore, the DOL stated that the "Physician Certificate Form"  "is not releasable in that it currently exists as non-final, interagency record;  consequently, access to such record is denied at this time."  In addition, "No records exist in connection with your request for . . ." Employer Certificate of Group Eligibility Form or procedures to protect again HIPAA violations.

In our response, we requested that our original FOIL Request, as it relates to these specific documents, be a standing request should the forms become available at a future date.

Eating Disorder Prevention Information Now on DOL Website

"Please be advised that all such documents [related to Eating Disorder Prevention Guidelines] may be found on the Department of Labor's website at the following address:"  

https://www.labor.state.ny.us/workerprotection/laborstandards/secure/Child_Performer_Advisory_Board.shtm 

The Department of Labor Believes It Knows Best 

Child Performers Coalition and BizParentz Foundation continue to maintain hope that the NYS DOL will agree to abide by the Administrative Regulatory Review Committee's recommendation that the DOL participate in negotiated rulemaking.   Sadly, our information indicates that the DOL will go it alone.  We anticipate the amendments will be published in a few weeks.  At that time, we will have 30 days to respond through writing.  Although not mandated by law, the DOL may allow one public hearing. 

We will apprise you of our findings once the 850 pages of documents have been review. 

No news is good news . . . well, not exactly but it's better than "HELP! ~ we have 30 days to turn around disappointing changes to Labor's proposed rule!"  Child Performers Coalition, in conjunction with BizParentz Foundation, continues to network with lawmakers, change makers and the media to encourage the best possible rule for New York and Child Performers.  However, it has been 30 days since the end of Public Commentary and Labor Commissioner Gardner and her staff have yet to reach out to us or established a Working Advisory Board as we, and other organizations, have asked be created.  There is no legal time limit for Labor to file their changes.  No changes are far, far better than the proposed changes.

A personal note to Commissioner Gardner ~ the MPAA is a powerhouse of a stakeholder. We acknowledge and appreciate their voice but the MPAA doesn't hold all the stakes.  The MPAA represents only the top tier or elite production studios.  The MPAA is not the entertainment industry.  Again, Commissioner Gardner ~ proper regulation of Entertainment Industry is extremely nuanced and complex ~ "broad brushes," "one stop shopping" and "simple fixes" will have dire consequences.  

Make No Mistake, DOL Rules Are Laws

Although the NY Department of Labor (DOL) has proposed rules, those rules, if adopted, will become the law of the land.  The rulemaking process should be reserved for use only in non-industry changing contexts.  DOL's proposed rules have the legal affect of creating law without representation.  In drafting broad and general language, the New York State Assembly has abdicated their role as lawmakers, bound by checks and balances, to state agencies who have no system of accountability. 

It is unconscionable that out of control agencies such as the DOL remain unchecked leaving employers, employees, consumers, and, of course, child performers and their productions, at the mercy of state agencies.  Lawmakers, such as Senator Carlucci, Senator Young, Assemblywoman Weinstein as well as the Administrative Regulatory Review Commission, can only make recommendations to state agencies.  Governor Cuomo's power to regulate state agencies is in appointment process.  He can remove and replace Commissioner Gardner but has no ability, short of her removal, to control her policy making.  Our recourse in found in the judicial process.  Once a rule is adopted, we can ask for relief through the judicial system.

Insanity:  Doing the Same Thing and Expecting a Difference Result

The DOL has repeatedly indicated it will review all the public comments, redraft the language, publish the revised language, and again receive public commentary.   What the Department of Labor has failed to explain is how it will determine which letter writers really understand the nuances of each segment of the entertainment industry, which scribes stand to make a buck, which authors genuinely have the interests of production and which have the backs of child performers.

And somehow, Labor attorneys who didn't know that kids were permitted twice a year and not once, who didn't know current permits don't ask for a physician's certificate, who we imagine have never been on set and have never had a conversation with a child performer ~ Labor attorneys who have proven us to that they can draft insane rules ~ are suppose to make changes to a rule that is fundamentally flawed.  This dynamic is frightening.

We Respectfully Request That the Rules Be Tabled Immediately

Once again, Child Performers Coalition respectfully requests that the NYS Department of Labor immediately table their proposed changes to their Child Performer regulations and work with  industry leaders, including Child Performers Coalition and BizParentz Foundation, to establish an Advisory Board ~ A Board that will install committees to make recommendations using their wealth of industry specific experience.  A Board that, in the end, will be best suited to develop the most responsible rules for New Yorkers ~ rules that promote film, television, and theatrical productions and protect the physical, mental and financial well being of Child Performers. 

When working as a lobbyist, I have seen first hand the value of a meaningful exchange of ideas, of vigorous debate, of expert testimony, as this dynamic bring together acute moments of clarity and insight not possible otherwise. These Oprah "Aha! Moments" cannot happen with the current dynamic of Labor speaking one on one with organization leaders and individuals.   

The industry groups believe in the same rule fundamentals.  We are not too far off the mark in terms of language that should be included and language that should be removed.   This process could literally take a few days of discussions with everyone in the same room.

New Yorkers, our entertainment community, and our child performers deserve nothing short of the best rules possible. 

Our web site has a new look ~ click on the CPC logo above to check it out!  As always, we appreciate your support!

Kelly Crisp

Founder, Child Performers Coalition 

Yesterday, NYS Department of Labor Commissioner Colleen Gardner testified at the NYS Senate's "Joint Budget Hearing ~ Human Services."  Senator Catharine Young questioned Commissioner Gardner specifically about the Proposed Child Performer Regulations.  Senator Young echoed industry and parent group concerns about the restrictive nature of the proposed rules while maintaining her commitment to child performer safety.  The Commissioner makes no mention of outreach of affected groups.  Child Performers Coalition thanks Senator Young for her thoughtful questions and remarks regarding the importance of production and child performers to the State of New York.   Please Help! Click here to thank Senator Young via Email 

It is important to note that all indications CPC has received suggest that the DOL continues to refuse to engage in a dialogue with industry and affected groups in direct contradiction to the Administrative Regulatory Review Commission's Recommendations (see below) that the DOL engage in "negotiated rulemaking" with industry leaders and affected groups. 

CPC continues to work through a variety of channels to ensure that a reasonable, responsible and healthy rule is adopted, one that promotes industry and protects child performers.   We hope that the DOL will reach out to our entertainment community to draw upon a wealth of expertise for help in drafting these game changing regulations. 

Commissioner Gardner's Response:  "We're in the middle of rule making so I can't comment on specific provisions.  We understand that the entertainment industry is an important industry to the state but we also have to balance it with our core mission to protect all workers including child workers.  We had three public hearing following the issuance of regulations.  Right now we are reviewing all the comments that we received.  It will probably take us several weeks to review it.  And then we will be coming back and more than likely will be issuing regulations will address some of the comments that we have received and then there will be a whole 30 day public comment period following that."

NY Assembly's Administrative Regulatory Review Commission Recommends "Negotiated Rulemaking"

In an effort to ensure that the best interests of Child Performers are protected, Child Performers Coalition (CPC) has reached out to many factions including governmental and public entities, private organizations, media outlets and, of course, members of the entertainment and child performer community.   

For weeks, we have been in discussions with the New York Assembly's Administrative Regulatory Review Commission (ARRC), "established with a mandate to exercise continuous oversight of the process of rule making," to enlist their support in recommending that the Department of Labor's (DOL) proposed rules be tabled and new rules be drafted with the expertise of industry leaders and affected groups.   

On Monday, Senator David Carlucci, the new Commission Chair was finally installed.  One of the first letters he signed was directed to the Commissioner of Labor recommending that her agency participate in "negotiated rulemaking" with industry representatives.  Senator Carlucci outlined many of our concerns with respect to the process and lack of outreach to all affected groups including Child Performers. I have emailed Senator Carlucci expressing thanks on behalf of CPC and BizParentz Foundation.    

Although the DOL has recently spoken publicly about their commitment to revise their proposed rules, they have remained entrenched in their standard rulemaking process, a process which has not worked to date.  The subject areas they will address and the language they will use will remain a mystery until the DOL decides to publish their redraft.  At that time, we will have 30 days, under the standard rulemaking process, to respond with public commentary and a public hearing. 

Negotiated rulemaking will allow for a dialogue with the DOL and between all groups ~ in the same room and at the same time.  It is important to note that the NY Assembly's ARRC can only make recommendations as agency power to promulgate rules in NY remains unchecked.  The DOL can chose to ignore the ARRC's recommendations or follow them.  In our Final Position Statement to the DOL, we have proposed and outlined the creation of an Advisory Board with an appropriate committee system. 

Excerpt from our Position Statement:  "Child Performers Coalition believes that the Department of Labor has behaved with reckless abandon in forsaking the importance of production to the New York City and New York State economy.   Now, The Department of Labor has a unique opportunity to purposefully change that dynamic and make life fair for productions, performers and the New York economy.

The Department of Labor has the ability to right this imbalance, this unfairness that has been created by the actions of the agency, by tabling the proposed rules so that we can all take a collective breath, agree to lay aside history, roll up our sleeves and get to work on a new rule ~ a healthy rule that promotes production in New York and protects the welfare of its workers."  See below for link to CPC Final Position Statement.

We look forward to the opportunity to engage in a meaningful exchange of ideas with the Department of Labor and industry representatives to develop a responsible rule that takes into consideration the complexities of this vital industry.  Thank you for your continued support.   

Kelly Crisp

Founder, Child Performers Coalition

kelly@childperformerscoalition.org 

Child Performers Coalition's Final Position Statement, or Letter to the Department of Labor, summarizes our views on each of the controversial provisions, the tainted rulemaking process and the lack of a meaningful voice representing the interests of all child performers.and their unique  issues.  The Administrative Regulatory Review Commission was particularly concerned with understanding how and why child performers did not have a voice in the original process and advocacy effort. 

The 45 page document includes our 17 page Final Position Statement with attachments including the CPC Hearing Comments, Letter to the Governor, six position statements regarding specific provisions, and five spreadsheets comparing the current rule to the proposed rule.  We have also provided the DOL with our CPC/BizParentz sponsored petition with 766 signatures, many with comments.   

Click Here for Final Position Statement

Click Here for Comparison Spreadsheets