New Proposed Child Performer Regulations Have Been Filed
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The New York Department of Labor has filed their new proposed regulations for child performers. As you read through the new proposed regulations, you will note very positive changes. We encourage you to review the proposed regulations in their entirety. For a pdf of the proposed regulations, please click here.
Labor Commissioner Replaced
In June, Governor Cuomo replaced Commissioner Colleen Gardner. The Governor's new appointment, Commissioner Rivera, is a former Assemblyman, a former Bronx Detective and Assistant District Attorney, Homicide Bureau. Commissioner Rivera then appointed Pico Paul Ben-Amotz, new Acting Counsel for the NYS Department of Labor.
New Acting Counsel Asks For Our Input
Since his appointment, Mr. Ben-Amotz has graciously asked for our input, reviewed our position statements and newsletters found on www.childperformerscoalition.org, sought our advice on issues critical to children in the industry and extended an invitation to call him with any questions in the future. Mr. Ben-Amotz' professionalism and keen insights into the dynamics of child performers within the entertainment industry have earned our respect and appreciation.
Public Hearing Scheduled for September 20th
A public hearing is scheduled for Thursday, September 20th in New York City. If you plan to attend, please email us so we can get a casual head count of who is planning to attend. Click Here for More Information.
Comment Deadline is October 22nd
We would love to hear your thoughts on the new proposed regulations. Please email any comments or concerns you may have to firstname.lastname@example.org. We encourage you to submit your formal comments to the NYS Department of Labor. Deadline to submit comments is on or before Monday, October 22, 2012. Click Here for More Information.
NOTEWORTHY PROVISIONS (important language is underlined or in bold)
Distinctions have been made between live performances, radio/television and motion picture.
Children in Reality Shows must be permitted.
Eating Disorder Material Review
Parents have to acknowledge on their child's permit that they have reviewed the educational materials on eating disorders posted on the NYS Department of Labor website.
Health Certificate Attached To Permit
A standard health certificate, similar to the one typically used by school systems or athletic organizations, must accompany permit applications. Although it has not been produced for our review, we have been assured publicly that the health certificate does not include any mental evaluation or any mention of eating disorders, body mass index, menstrual cycles, drug use, etc. We have also been assured publicly that the Department of Labor has no plans, now or in the future, to change this simple health certificate.
Trust Account Attached To Permit
For paid performance work, a copy of the trust account documentation must be attached to the permit. In such cases, permits will not be valid unless trust account documentation is attached.
§ 186-2.1 Definitions.
(t) "Responsible person" shall mean a person over eighteen years of age designated or employed in accordance with these regulations to supervise one or more child performers and safeguard their best interests while the child performers are employed by the employer. Every responsible person designated or employed by an employer, casting agency, talent agent or similar entity must be qualified by training and experience to care for the safety and well being of children. In determining whether the responsible person to be designated or employed by an employer, casting agent or similar entity is qualified by training and experience, the entity shall assess whether the person to be designated is familiar with the hours and working conditions requirements of Subpart 186-6, shall conduct a check of New York State and national sex offender registries, and shall consider the results in accordance with Article 23-A of the Correction Law.
Note that "qualified by training and experience" is a term commonly used in NYS Labor regulations. It is my understanding that the NYS Department of Labor will not go beyond that language because there is no precedent for going beyond it and there is no Responsible Person certification in place. It becomes a question of fact as to whether a particular Responsible Person is "qualified by training and experience." If there were a legal challenge in a particular case, the entity/employer would have the burden to prove the Responsible Person was qualified.
§ 186-3.6 Designated responsible person.
(a) The parent or guardian of a child performer under the age of 16 shall designate a responsible person for the child, whose duties shall be to accompany the child throughout the workday and to monitor the child's safety and well being on behalf of the parent or guardian.
(b) The parent or guardian may choose to serve as the responsible person for his or her own child performer under the age of 16 or 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) Notwithstanding sub-sections (a) and (b) of this section, in live theater or other live performance, when it is physically impracticable for the employer to permit a responsible person designated by the parent or guardian to accompany a child under the age of 16, the employer shall either:
(1) employ a responsible person at least 18 years of age to accompany the child and monitor the safety and well being of the child. Such person may be responsible for more than one child. The parent or guardian and the employer must agree in writing on the responsible person. The parent or guardian shall not unreasonably withhold his or her agreement; or
(2) provide facilities to observe and hear the child, through electronic or other appropriate means, to the responsible person designated by the parent or guardian;
(e) Nothing in this section shall diminish the employer's responsibility to ensure the safety and well being of child performers.
§ 186-4.6 Provision for a responsible person.
(a) Every child performer under the age of 16 shall 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 shall allow the responsible person to be within sight or sound of the child at all times during the workday.
(b) Except as otherwise provided in this section, the parent or guardian shall designate 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 shall designate a responsible person for that child. Such responsible person may be responsible for more than one child.
(d) Notwithstanding subsections (b) and (c) of this section, in live theater 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 may either employ a responsible person for the child or 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.
Where the employer elects to employ a responsible person, the employer shall notify the parent or guardian in writing of the name of the responsible person, who may be responsible for more than one child, and shall, at the employer's election, either:
(1) Obtain the written agreement of the parent or guardian, which shall not be unreasonably withheld or delayed; or
(2) Provide the parent or guardian with an opportunity to object to the responsible person and provide a mechanism to timely address any reasonable objections in the best interest of the child.
(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).
(g) Nothing in this section shall diminish the employer's responsibility to ensure the safety and well being of child performers.
§ 186-5.1 Educational requirements
There are many provisions within the "Educational Requirements" Section. Here are some worth noting:
(3) During periods of instruction, tutoring and study, the space set aside shall be used exclusively for those purposes. Persons not participating in those activities shall not be allowed in the space, except for a responsible person choosing to remain within sight or sound of a child performer, subject to the approval of the teacher in conjunction with the production company. A parent, guardian or other person tutoring a home-schooled child shall be provided appropriate space to do so.
(4) The employer shall provide a teacher to a child performer, other than a home-schooled or distance education student who is receiving appropriate instruction during the school day through those means:
(i) from the third day of missed educational instruction through the remainder of the child's employment in the production; or
(ii) from the first day of missed educational instruction through the remainder of the child's employment in the production, if the child was guaranteed three or more consecutive days of employment.
(5) The provided teacher must either be certified or have credentials recognized by the State of New York. A check shall be conducted of New York State and national sex offender registries, and the results shall be considered in accordance with Article 23-A of the Correction Law.
(6) A provided teacher shall provide instruction to the child or children for an average of at least three hours per school day on a weekly basis. A minimum of one hour of instruction shall be provided on each school day. No period of less than twenty minutes duration shall count as school time. On any day that the minor attends his or her regular school, the employer shall count no more than three hours of the hours attended per day at the minor's regular school as school time.
(7) Extra teaching time above three hours per day provided to the child performer may be be "banked" and "spent" on another day in the same week or any week, subject to the following limit: no more than five hours of banked teaching time may be carried over from week to week.
(8) The employer shall provide at least one teacher for every ten children or fraction thereof required to be taught at the workplace. For each group of up to ten students, the employer shall provide at least one teacher who is appropriately certified or otherwise competent to teach students in the applicable grade ranges and subject areas, as determined by the school district or non-public school in which the child is enrolled.
(9) The employer shall require the teacher to prepare written reports for each student whom the teacher has taught, covering dates and hours of attendance, lesson plans performed, grades, etc. The teacher shall give or send these reports to the minor's parent or guardian and to the school district in which the minor resides or the private school that the minor attends, at intervals required by the school and at the end of the minor's employment.
(10) It is the responsibility of the child performer's school, the parent or guardian, and the provided teacher to work together to determine and carry out the child performer's education plan and curriculum.
(11) The teacher shall give the employer a copy of the record of dates and hours of instruction for each child performer. The teacher shall not give the employer any other educational information regarding an individual child without first obtaining written parental consent. A parent or guardian may discuss any extra educational support or specialized teaching his or her child performer needs with the employer and/or may give written consent allowing the teacher to discuss such needs with the employer.
(12) If the school that the child performer usually attends starts:
(i) less than nine hours after his or her dismissal time from work in live theater or other live performance, or
(ii) less than twelve hours after his or her dismissal from work outside of live theater or other live performance, the child performer shall be instructed the following day at the employer's place of business, except that the parent or guardian shall have the option of having the child performer attend instruction at the school that he or she usually attends on such days.
§ 186-6.2 Hours and days of work.
Work hours and days of work are detailed according to the industry and age of the performer. For a complete listing, see proposed regulation.
§ 186-6.3 Meal periods.
The time when the meal period occurs may not be more than 6 hours from the time the child performer is required to arrive at the place of employment or more than 6 hours from the end of the preceding meal period. For details, see proposed regulation.
§ 186-6.4 Rest and recreation.
Provision for rest and recreation. For details, see proposed regulation.
§ 186-6.5 Safety and health of child performers.
(b) A child performer and his or her designated responsible person shall be given orientation training to the workplace, other than the child performer's own residence, that is adequate and appropriate to their ages. Orientation training should include:
(1) Health and safety precautions for the venue or location;
(2) Traffic patterns backstage or on location;
(3) Safe waiting areas for child performers backstage or on location;
(4) Restricted areas;
(5) Location of rest areas/rooms, toilets, makeup areas, and other relevant rooms;
(6) Emergency procedures; and,
(7) Employer designated persons to inform of hazardous conditions and what actions to take.
As always, we appreciate the guidance and support of BizParentz Foundation. Please go to their site for a wealth of invaluable information! Click here for BizParentz Foundation.
We look forward to hearing from you!
Kelly Crisp Founder, Child Performers Coalition