 So, The Changes Are In . . . .
For over a year, the New York Department of Labor has held the child performer community and entertainment industry hostage to their gross incompetence as a regulatory body. Without sweeping changes, their reckless proposed regulations would jeopardize the well being of over 6,000 child performers and negatively impact about 500 production companies. Frankly, it has been stunning to witness a state agency's callous disregard for the safety of children and their belligerent attitude toward participating in an open and honest dialogue with groups that, not only a vested interest in an industry important to the economy of New York, but also an expertise in the very subject matter Labor is charged with regulating.
We hope that the monumental effort it has taken to turn disastrous proposed regulations around has not gone unnoticed by the Department of Labor, Governor Cuomo, lawmakers, the media, and the public. In short, it should never be this difficult to right wrongs, to communicate with a state agency, and to improve a regulation that changes an industry. It is a sad commentary on our government that New York lawmakers have abdicated their lawmaking responsibly and oversight to state agencies that have little to no accountability.
On December 23rd, the New York Department of Labor filed their proposed changes to Part 186 Child Performer. It is our understanding, that these changes will be published in the NYS Registry on January 11th. We will then have 30 days to respond. Labor will then either make additional changes or adopt the regulations as they are currently written.
Our overall impression is that proposed changes are helpful. It appears that Labor has listened and made changes that, for the most part, are in line with Our Recommendations. Below you will find our Recommendations, the New Proposed Language, and our new Recommendations. We ask for your understanding and patience as we continue to review the changes and revisit our recommendations. We want you to have a general understanding of the new language as 30 days is a very short window to impact change. What follows is our initial impressions. Please stay tuned for more information and next steps.
We encourage you to read the New Labor Regulations, in their entirety, posted on our website. Click Here to View.
1. CPC Sight and Sound Access Recommendations
a. Mandate employers provide "Sight and Sound" Access. Either Child Performers must have "Sight and Sound" Access to their Parent or, conversely, Parent must have "Sight and Sound" Access to their Child Performer.
b. Responsible Person ~ Upon mutual agreement between Employer and Parent, Employer MAY appoint a Responsible Person who shall NEVER deny or interfere with "Sight and Sound" Access.
c. Access to School Room ~ no exception for School Room. "Sight and Sound" Access attaches to Child Performer so where ever Child Performer goes, Parent/"Sight and Sound" Access goes.
d. "Sight and Sound" Access may be accomplished, if conditions do not allow for traditional "Sight and Sound" Access (particularly in theatrical), by use of a video monitor that a parent may access from another location (iphone app, etc).
New Proposed Language
186-4.6 (a) "Provision for a responsible person" Every child performer under the age of 16 must be assigned a responsible person at least 18 years of age, whose duties shall be to accompany the child throughout the work day and to monitor the child's safety and well-being. The employer must allow the responsible person to be within sight or sound of the child at all times during the work day. (b) Except as otherwise provided in this section, the parent or guardian designates the responsible person and may choose to serve as the responsible person for his or her own child under the age of 16. The parent or guardian may designate another adult at least 18 years of age, including another child performer's parent or guardian, to serve as the responsible person for the first parent's or guardian's child. (c) If a parent or guardian fails to designate a responsible person, or a child under 16 is without a responsible person on any day, the employer must designate a responsible person for that child . . . (d) Notwithstanding subsection (b) of this section, in live theatre or other live performance, where it is physically impracticable for the employer to permit a responsible person designated by the parent or guardian to accompany a child under 16, the employer must either: (1) employ a responsible person for the child. Such responsible person may be responsible for more than one child. The parent or guardian and the employer must agree in writing on the responsible person; or (2) provide the responsible person designated by the parent or guardian with facilities to observe and hear the child through electronic or other appropriate means; or both (e) The responsible person shall not be assigned any duty by the employer that interferes with the responsible person's duties to the child performer(s). 186-2.1(t) "Responsible person" shall mean a person over eighteen years of age designed by the parent or guardian of a child performer or by the employer to supervise the child performer and safeguard the child performer's best interests while the child performer is employed by the employer. . . Every responsible person designed by an employer or organization or institution must be qualified by training and experience to care for the safety and well-being of children."
CPC Recommendations to Proposed Changes
CPC would like "qualified by training and experience" to be more specifically defined and include criminal background and fingerprint checks. Perhaps inclusion of language that precludes Registered Sex Offenders, persons charged or convicted of a sex offense or felony from being "responsible persons".
New Proposed Language
186-5.1(e)(3) "Educational requirements" . . . . Persons not participating in those activities shall not be allowed in the space, except for responsible persons accompanying a child performer. . . . A parent, guardian or other person tutoring a home-schooled child shall be allowed to use the space."
CPC Comments on Proposed Changes
CPC acknowledges that parents can have access to the school room.
2. Mental & Physical Health Certificate Requirement
a. Remove all language regarding any requirement of a physical and/or mental health certificate, evaluation, etc.
New Proposed Language
186-3.2(b)(6) the signed written certification of a licensed physician, physician's assistant or nurse practitioner that the minor was examined within twelve months prior to the date of application and has been found to be physically capable of engaging in employment without endangering the child's health. If there are physical limitations on the types or duration of activities in which the child can safely engage, the practitioner shall state the limitations.
CPC Recommendations to Proposed Changes
We strongly urge to remove all language regarding any requirement of a physical and/or mental health certificate. We acknowledge that what the DOL proposes is signficantly difference than the original language and original framework. CPC points out that health forms are routinely required by school systems so this requirement is a duplication and unnecessary. CPC is concerned that the same protections afforded in the educational system are not afforded in a state agency such as the Department of Labor that does not typically concern itself with children, in particular high profile children, whose privacy interests may be jeopardize by release of medical information. CPC requests a copy of the form to insure that personal information such as menstrual cycles, Body Mass Index, mental health information, eating disorders or substance abuse etc. is removed from the form and from mandated questioning of said child performer. CPC anticipates that the form is similar to forms currently in use by school systems. CPC requests documentation that all HIPAA Regulations are complied with and privacy concerns are met. CPC notes that physician's or medical practitioners do not have the authority to revoke a child performer's permit under the proposed changes in 186-8.2.
3. Trust Account Loophole
a. Permit Valid when Proof of Trust Account is attached to permit. This is the law in California. Prevents Employers from claiming the Child Performer didn't provide the Trust Account Information. Note: Employers do not like to assume the cost of sending a large volume of "small amount" checks to individual Trust Accounts so they will "dump" them into the Comptroller Account and claim the Child Performer didn't provide their Trust Account Info. Missing Trust Account Monies are a huge problem and accounts for millions of dollars in California alone.
b. Provision that Earned Money is the legal property of the Child Performer not the Head of Household. This would allow for a "modified" Block Trust Account, a Child Performer could gain access to his/her money, if necessary prior to 18, by guardian's petition to the court ~ show cause that money is needed by Child Performer and will not go to the personal gain of the Parent. California Law is Blocked Trust Account and Child Performer has no ability to gain access to their money prior to 18.
c. Remove language that allows Employers to withhold Child Performer Earnings.
d. Include language that allows the Comptroller access to Child Performer Permit Contact Information held by the DOL Permitting Office so that "missing" Trust Fund Monies are returned to Child Performer.
e. Consider a Mandatory Minimum for permit requirement such as $500.00 so that a one time day player does not have to open a Trust Fund Account and Employers do not have the expense of issuing separate checks, etc. Language would have to account for a transition to Trust Account requirement when monies earned exceed $500.00.
New Proposed Language
186-3.2(e)In order for the permit to be valid for paid performance work, the parent or guardian must attach, to the employer's copy of the permit, documentation of a child performer trust account and the information necessary for the employer to make the required transfers to the account, except for the Temporary Child Performer Permit, . . .
CPC Recommendations to Proposed Changes
CPC acknowledges that this requirement is in line with California Permit requirements and will close the loophole that currently exists in New York regulations. CPC continues to be concerned that New York regulations do not require that these Trust Accounts be blocked. There may be some language that allows the Comptroller's Office access to child performer information to disperse missing trust fund account monies ~ will need to confirm. If said language is not present, CPC request that the DOL work with the Comptrollers Office to insert language that will facilitate lost monies and prevent future lost monies. The Comptroller's Office has asked for this language to be drafted as investigations to return lost monies account for unnecessary costs to the Comptroller's Office/State of New York.(186-2.1(d)"Child performer's holding fund" shall mean the special fund in the joint custody of the State Comptroller and the Commissioner of Taxation and Finance consisting of revenues received and interest accrued from transfer . . . . who do not have a child performer trust account . . . " Does not appear that Group Certificate performers need to establish Trust Accounts.
4. Work Hours
a. SAG "film working hours" should apply to film.
b. AFTRA "broadcast/television working hours" should apply to broadcast/television.
c. Actors' Equity should establish theatrical working hours.
d. Student Films should NOT have a "Work Hours" waiver.
New Proposed Language
186-6.2 "Hours and days of work" ~ please refer to the regulations on page 36 of DOL New Proposed Regs
CPC Recommendations to Proposed Changes
Due to the complexities of hours and days of work, CPC must take more time to digest the implications of the new language, however it appears as if the needs of theatrical, film and broadcasting have been satisfied with one exception ~ night shoots. CPC acknowledges a variance mechanism in 186-7.1 that requests must be received no later than two business days before the requested modification shall take effect. CPC is concerned that a delay in paperwork and Commissioner approval, may delay the production when a production's schedule changes. CPC is also concerned that there continues to be an exception for student films.
5. Education
a. Work Hours & Education Hours must be established so that they take into account industry practices and work together. They are inextricably linked.
b. "Sight and Sound" Access/Access to School Room should be never be denied or interfered with.
c. Education should take into consideration homeschoolers, public & private school absentee definitions, and the school systems from surrounding states. California requires on set location because, unlike New York, very, very few Child Performers live near production companies and therefore cannot attend their school on a work day.
d. Recognize that Homeschoolers have a clear advantage as the employment of a Homeschooled child is a cost savings to Employers. Child Performers who are not Homeschooled should not be disadvantaged. Note: On Set Education levels the playing field.
e. Performers should be able to attend private tutoring or their regular school if doing so works within the work schedule.
f. We believe "First Day" Education is unduly burdensome to Employers. "Third Day" Education is more reasonable.
g. Department of Education/Board of Education should be engaged so that any language providing for "excused absences" are in line with DOE/BOE language and No Child Left Behind.
h. Caution should be exercised when increasing the cost or headaches to Employers.
i. Production Companies, not the teacher, should determine the number of hours of education each day and the time of day so long as the weekly minimum is achieved and it is in line with "work hours".
j. It is more important that the School Room should be free from "distraction and quiet" than the proposed language: "clean, well lit, have sufficient work surfaces, chairs and necessary supplies for instruction." More important that the space be "quiet and distraction free" than "clean".
k. Caution should be exercised when enlisting the opinion of for-profit organizations who stand to profit a great deal from changes to the current regulations.
New Proposed Language
186-5.1 "Education Requirements" please refer to the regulations on page 34 of DOL New Proposed Regs
CPC Recommendations to Proposed Changes
Due to the complexities of location education, CPC must take more time to digest the implications of the new language however: CPC recommends that teachers must be qualified and have the credentialing for the age they are employed to teach. CPC acknowledges that allowances for home-school education as well as alternative methods of educational instruction agreed upon by school and parents have been inserted. However, CPC is concerned that the new framework will provide homeschoolers with a distinct advantage over non-homeschooled children. CPC acknowledges that the new language provides for flexibility in when educational instruction time can be satisfied. CPC acknowledges that the new language provides for sight and sound access by parents in school rooms. CPC acknowledges that the new language appears to provide for third day education. CPC acknowledges a more liberal education plan.
6. Group Permits
a. Group Permits should narrowly define groups with language such as "use of established groups in the capacity for which they were formed" ~ baseball group permit for baseball team, choir group permit for established choir, etc. Note: Without such a definition, paid Background Work will be nonexistent. Employers will simply hire 20 "individual children" and call them a group. Established/trained child performers do not typically engage in background work.
b. Use of groups of children, particularly children new to performing and/or children who are performing tasks outside of their established group activity, are a safety threat to themselves and others as they will be unfamiliar with established set safety protocol. Film and theatrical sets can be dangerous to the untrained. Film set locations can change daily or multiple times within one day and pose extreme dangers for untrained children.
New Proposed Language
186-4.1(l) "Employer Certificate of Group Eligibility" shall mean the document issued by the Commissioner to an employer that demonstrates authorization to employ a group of children not as individuals but as a group, for no more than two days, in order to establish a background scene, such as a crowd in the street, on mass transit or bus, in a classroom or auditorium, or as in a choir. Such group may be assembled by the employer or may be provided by a casting agency, school, church, camp, choir, team, or other similar entity.
CPC Recommendations to Proposed Changes
CPC acknowledges that the new language is more narrowly defined than the previous proposed language which is an improvement but is concerned that pay and work for traditional background work will be significantly negatively impacted. CPC cautions use of inexperienced children in settings in which experience and training is necessary to avoid danger.
7. Reality TV Show
a. Remove all language regarding "reality television." Deprived children, including reality TV children, have established protections through the courts and social services. If a child is included in a "reality television" production and not attending school or homeschooled then truancy should step in. If these children are not eating, sleeping, are medically deprived, etc., then social services should step in. If these children are "performing" in a "scripted production," then they are Child Performers and subject to Child Labor Laws. There will be monumental consequences to production if "reality television" is included in Child Labor Laws impacting documentary filmmaking, sports shows, live appearances, news style programs, etc. Unintended consequences would result in enormous costs and barriers.
New Proposed Language
186-2.1(a)(1) "Services as an actor or actress" shall include an appearance in a reality show." 186-2.1(s) "Reality show" shall mean 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, intended for entertainment and commercial purposes, in motion pictures, television, visual, digital, and/or sound recordings, on the internet, or otherwise. "Reality show" shall not include: (1) recorded or live transmissions of non-fictional athletic events or academic competitions, such as spelling bees, geography bees, and the like, that are intended for educational or informational use; or (2) the use of a child's image, likeness, or voice recording in any newscast or interview."
CPC Recommendations to Proposed Changes
CPC restates that children appearing in a "reality show" are not performing and any alleged deprivation can and should be reported to state social services. CPC acknowledges that the new language takes into account sporting events, live appearances, and news style shows. CPC notes that documentary filmmaking will be impacted.
8. Expand "Child Performer" Definition to include "Models" and "Dance Company" Performers
a. Other States include Child Models within the Child Performer definition. New York States can easily adopt Child Models within the Child Performer definition. Currently, Models are "regulated" under Department of Education/Board of Education. The vast majority of Child Model Employers do not require Child Models present permits as neither Child Models nor their Employers are regulated by the DOL. Therefore, there is no consequence to failing to provide or require a Child Model Permit.
b. "Second Company" dancers should be defined as Child Performers. Currently, New York States can easily adopt "Second Company" dancers within the Child Performer definition. "Second Company" dancers work under the same conditions as traditional Child Performers but because they receive an education stipend and not traditional pay, the DOE and DOL do not recognize their performance as "work" and have chosen not to regulate them as Child Performers. "Second Company" dancers are found within all the major dance companies.
New Proposed Language
186-2.1(a) "Artistic or creative services" shall mean those services in connection with a performance including, but not limited to, services as an actor, actress, dancer, . . . "
CPC Recommendations to Proposed Changes
CPC notes that the definition includes "dancer" but will need to access whether other language excludes "Second Company" dancers who are typically paid in educational stipends. CPC notes that Labor chose not to include "models" when "models" were the specific target of the mandate of protection provided by the Child Performer Advisory Board. CPC believes that there no language or regulation in NY law that limits Labor's ability to regulate "models."
Thank you so much for your support.
Kelly Crisp
Founder, Child Performers Coalition
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