PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
Proposed Action:
Addition of Part 186 to Title 12 NYCRR.
Statutory authority:
Labor Law, section 154-a
Subject:
Child Performers.
Purpose:
To establish regulations regarding the employment of child performers.
Substance of revised rule:
(Full text is posted at the following State website: www.labor.state.ny.us): The proposed rule creates a new section of regulations designated as 12 NYCRR Part 186 entitled ''Child Performers'' created under Chapter 89 of the Laws of 2008.
The Child Performer Education and Trust Act of 2003 requires trust accounts to be established for child performers, requires all child performers to have permits issued by the New York State Department of Labor, requires all employers of child performers to have employer certificates of eligibility issued by the New York State Department of Labor, and requires employers of child performers to provide teachers to such child performers if they are otherwise unable to fulfill educational requirements due to their employment schedules.
By Chapter 89 of the Laws of 2008, the Commissioner of Labor is required to promulgate rules and regulations as shall be necessary and proper to effectuate the purposes and provisions of the Act, including but not limited to rules and regulations determining the hours of work and conditions of work necessary to safeguard the health, education, morals and general welfare of child performers.
An earlier version of the proposed rule was published in the State Register on November 10, 2010. Two public hearings subsequently were held in New York City, on January 10, 2011 and January 31, 2011. Seventy six (76) persons submitted written comments and twenty six (26) persons spoke at the hearings, fourteen (14) of whom also submitted written comments, for a total of eighty eight (88) persons formally submitting comments. In response to the comments, many substantive changes have been made in the proposed regulations.
Proposed new Part 186 contains all regulations pertaining to child performers. They define the type of work that will categorize a child as a "child performer,'' including but not limited to work as part of a "reality show,'' a term defined in the regulations.
They also exempt various types of performances from regulatory oversight in accordance with Section 35.01(2) of the Arts and Cultural Affairs Law.
They set forth the time and manner in which a child must obtain and renew a Child Performer Permit and the time and manner in which the employer of a child performer must obtain and renew an Employer Certificate of Eligibility. The proposed regulations also provide for a Temporary Child Performer Permit valid for a limited period of time so as to permit a child performer who has never previously obtained a Child Performer Permit to be employed prior to submission of all documents necessary for a full Child Performer Permit. They also provide for an Employer Certificate of Group Eligibility permitting a group of children to be employed as a group on certain projects for a period of not more than two days.
An annual physician's certification of fitness to work is necessary to obtain the Child Performer Permit.
The proposed regulations require parents and guardians to set up child performer trust accounts into which employers are required to deposit at least fifteen percent of a child performer's gross earnings.
They also require child performers below 16 years of age to be accompanied throughout the work day by a responsible person.
The proposed regulations require employers to provide time and facilities as necessary for children to fulfill their educational obligations and to provide a teacher to child performers under certain circumstances.
They also set forth the hours and conditions of work according to the age of the child.
Special provisions have been added for live theater and other live performance with regard to hours of work and of presence at the worksite and also with regard to supervision of the child performer by a responsible person while at the work site.
The proposed regulations provide for the issuance of variances in the event of significant hardship and for the suspension or revocation of a permit or certificate after hearing. In addition, the proposed regulations permit the Commissioner of Labor to impose fines for violation of the regulations.
The proposed sections of Part 186 are summarized as follows:
Subpart 186-1 Purposes and scope
Subpart 186-2 Definitions
Subpart 186-3 Responsibilities of parents and guardians
Subpart 186-4 Responsibilities of employers
Subpart 186-5 Educational requirements
Subpart 186-6 Hours and Conditions of work
Subpart 186-7 Variances
Subpart 186-8 Suspension or revocation of permits and certificates
Subpart 186-9 Penalties and appeals
Revised rule compared with proposed rule:
Substantial revisions were made in sections 186-2.1(a), (c), (l), (o), (p), (r), (t), (w), (x), 186-3.2(b)(6), 186-3.6, 186-4.3, 186-4.4, 186-4.4(a)(4), 186-4.6, 186-6.5(d) and Subparts 186-3, 186-4, 186-5 and 186-6.
Text of revised proposed rule and any required statements and analyses may be obtained from
Teresa Stoklosa, New York State Department of Labor, State Office Campus, Building 12, Room 509, Albany, NY 12240, (518) 457-4380, email: Regulations@labor.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
30 days after publication of this notice.
Summary of Revised Regulatory Impact Statement
Statutory Authority: Section 35.01 of the Arts and Cultural Affairs Law makes it unlawful, with certain exceptions, to employ, exhibit or cause to be exhibited any child under the age of sixteen years except as provided by Section 151 of the Labor Law. Labor Law Article 4-A, including Section 151, describes the circumstances under which child performers may be employed, including depositing at least fifteen percent of a child performer's earnings in a trust account in accordance with Estates Powers and Trust Law Article 7, Part 7, and fulfilling the compulsory education requirements in Education Law Article 65, Part 1 by providing a teacher to the child. Section 154-a of Article 4-A of the Labor Law (as added by L. 2008 Ch. 89) charges the Commissioner with promulgating regulations determining the hours and conditions of work necessary to safeguard the health, education, morals and general welfare of child performers.
Legislative Objectives: The purpose of the authorizing legislation is to: protect the safety, health and well being of child performers; ensure that child performers who work or reside in the State of New York are provided with adequate education; and ensure that a portion of the child performer's earnings are kept in trust until the age of majority.
Needs and Benefits: New Part 186 addresses the need to protect child performers by including all existing requirements related to the welfare of child performers in one regulation. The rule protects a portion of the child performer's pay by requiring the establishment of a trust fund. The rule mandates that alternative education be available if a child cannot attend school while performing and that a responsible person supervises and safeguards the child performer at work. The rule makes the Department responsible for certification and monitoring.
Costs: There is no cost to apply for a Child Performer Permit, nor any cost to renew the permit annually. The costs incurred in obtaining a physician's statement that the child performer is physically fit will be minimal.
For employers, the cost to apply for 3-year Certificates of Eligibility is $350 for an initial certificate, $200 for theaters with less than 500 seats, and $200 for renewals and Employer Certificates of Group Eligibility.
Per Article 4-A of the Labor Law, the employer must incur the cost of providing a certified teacher to a child performer whose employment schedule prevents the child from fulfilling New York's compulsory education requirements. The proposed rule does not add further costs to this statutory requirement and accommodates several circumstances in which alternative education plans may be pursued by the parents without any cost to the employer.
The proposed rule requires that every child performer under 16 years of age be accompanied throughout the workday by a responsible person. This will be an added cost for some productions. The proposed rule supports the industry norm by assigning the responsibility to the family to provide a responsible person for the child and by exempting children once they reach the age of 16. Thus, in film, television, and advertising, there are no added costs to employers from the "responsible person" regulation. In the tight spaces and time-lines of live theater and other live performance work, many employers already employ "responsible persons" to supervise child performers, in lieu of permitting parental accompaniment backstage. The proposed rule supports existing industry practice in such productions and will not add to existing costs for them. Productions, which would neither permit parental accompaniment nor employ responsible persons, will be compelled to do one or the other. Each responsible person can supervise several children.
Employers may incur additional accounting costs in the process of transferring statutory withholdings into a trust account and providing the parent or guardian with written notification of the transfers.
Local Government Mandate: Under the proposed rule the home school district will need to work with the parents and any employer-provided on-site teacher to agree on an education plan that complies with home district requirements. The teacher will submit written reports on the child's educational progress, including attendance, lesson plans performed, and grades, to the home school. If the child's work, grades, and credit are accepted by the school district, the child need not be declared absent and the school district's attendance-related state aid need not be affected. The proposed rule allows school officials, cooperating with parents, to develop alternative methods which satisfy educational requirements. Many child performers will be able to attend their local or private schools or be home- or correspondence- schooled.
Paperwork: The statute requires that child performers obtain one-year permits and employers obtain three-year certificates from the Department of Labor. The only document required of an employer, besides the application for the Employer Certificate of Eligibility, is proof of insurance coverage for workers' compensation and disability benefits.
Certificated employers must provide the Department with "Notices of Use of Child Performers" at least 3 days in advance, containing very general information: anticipated dates of use, location of use, approximate number of children to be used, and type of production.
To employ a group of children as a group, for up to two days, without the children having to apply individually for child performer permits, certificated employers must provide only the same very general information as required in a Notice of Use, in order to obtain a group certificate.
Before the start of employment, employers are to obtain from the parent a copy of the child's permit, trust account information (if employment is paid), current emergency contact information, and authorization to provide emergency medical treatment.
The employer must give the parent or guardian written notification of the transfer of funds to a child's trust account within five days of such transfer.
If the employer lacks information on a trust account for a child, the employer is required to submit the monies to the NYS Comptroller instead.
The employer must require any on-set teacher to complete written reports covering attendance, lessons completed and grades. The reports will be given by the teacher to the child performer's school and parents or guardians at intervals required by the school and at the end of each employment. The employer will receive a copy of the attendance record only, as the employer will need this to show compliance with the education provisions.
The proposed rule requires the employer to retain records for six years. They must be open to inspection by the Department of Labor, school attendance and probation officers, the regular school or local school district, the State Education Department and the State Comptroller.
For a parent to apply for a Child Performer Permit, the statute requires the parent to provide the Department with information concerning the child, a school statement of satisfactory academic performance, and trust account information. The proposed rule, and the application process in use by the Department for several years, also requires proof of the child's age, a picture ID of the parent or guardian, a notarized guardian statement if the applicant is a guardian; and evidence that the child is no longer required to attend school, if that is the case.
A new requirement of the proposed rule is the requirement for a certification by a physician, nurse practitioner or physician's assistant that the child has been examined within 12 months prior to application or renewal and is physically fit to work.
Temporary 15-Day On-Line Child Performer Permits may be obtained on-line without providing any documentation to the Department and may be printed out by the applicants for the first time employment of a child who has never before applied for a child performer permit.
Duplication: This rule does not duplicate, overlap or conflict with any other State or federal requirements.
Alternatives: The Department conducted significant outreach to various groups that represent child performers and various employers who employ child performers, and asked them to make recommendations regarding the hours and conditions of work, as well as the educational needs, of child performers. The Department published an earlier version of the proposed regulations in the State Register and received written comments and oral testimony from some 88 different organizations and individuals. The Department used input from these various groups and individuals to draft and to revise Part 186.
Several groups requested an exemption from the rule's requirements when they were only using a larger group of children for a short scene. In response the Department created the Employer Certificate of Group Eligibility. The group certificate reduces the burden on the employer by eliminating the need to comply with the requirements necessary for individual child performers.
A child is not considered to be a ''child performer'' for purposes of these regulations when the child is performing: as part of the normal activities of a church, academy, or school; in a private home and is not being recorded for commercial purposes; under the direction, control, or supervision of a Department of Education; in programs broadcast from a school, church, academy, museum, library or other religious, civic or educational institution; for less than two hours a week from the studio of a regularly licensed broadcasting company, as long as the performance is nonprofessional in nature; or in productions made by students to satisfy academic requirements in a recognized course of study. These exemptions do not apply, however, when the child performer is participating in a reality show.
Parents were concerned about the ability to apply for and receive the Child Performer Permit in a timely manner when an unexpected and imminent performance opportunity occurs for the child. To accommodate these situations, the rule provides for a Temporary Permit. A parent or guardian of a child performer may apply for a Temporary Child Performer Permit prior to the first employment of a child performer. This allows the child performer to work for fifteen days while the parent or guardian fulfills the requirements for the Child Performer Permit.
Various production groups requested some flexibility if an employer would incur substantial hardship in complying with this rule. In response, the rule allows an employer to apply for a variance to the problem requirement no later than two business days prior to when the requested modification shall take effect.
Federal Standards: Child performers are exempted from the child labor provisions of the federal Fair Labor Standards Act. There are no other federal standards regulating the employment of child performers.
Compliance Schedule: An employer's application for an Employer Certificate of Eligibility is due prior to employing a child performer. An Employer Certificate of Eligibility is valid for three years, and a renewal application for such certificate is due thirty days prior to the certificate's expiration date. An employer must provide a Notice of Use of child performers to the Department at least three business days prior to such use.
A parent or guardian of a child performer must obtain a Child Performer Permit prior to commencement of employment. A Child Performer Permit is valid for twelve months, and a renewal application for such permit is due thirty days prior to the permit's expiration date. The parent or guardian must provide the employer with documentation of the child performer's child performer trust account within fifteen days of the commencement of employment if providing a Temporary Child Performer Permit or at the start of the employment if working under a full Child Performer Permit.
The regulation will become effective upon publication of its adoption in the State Register.
Revised Regulatory Flexibility Analysis
Effect of Rule: Labor Law 154-a charges the Commissioner of Labor with promulgating regulations determining the hours and conditions of work necessary to safeguard the health, education, morals and general welfare of child performers. These regulations apply to all child performers who either reside or work in New York State and to all the entities that employ them.
It is possible that small employers may employ child performers and therefore be subject to these regulations.
Local governments which engage anyone under eighteen years of age at performance work are subject to this Part.
However, a child performer's performance is exempt from these regulations if it is part of the activities of a school, or is under the direction, control, or supervision of a department of education, or is broadcast from a school, or is in productions made by students to meet academic requirements in a recognized course of study, unless the child performer is participating in a reality show.
A school district will be expected to work with a teacher provided by a child performer's employer in developing and agreeing to a suitable education plan for the child while he/she is employed, and to monitor, through reports from the teacher, the student's status in fulfilling that plan. These activities will not have an adverse impact on the respective school districts.
Approximately 478 employers have current Child Performer Certificates of Eligibility. While the number of Child Performer Permits varies depending upon the amount of available work, 15,610 Child Performer Permits were issued in 2010, and 17,290 Child Performer Permits were issued as of 12/13/2011. Each of these employers and child performers are subject to this Part. Employers subject to these regulations represent a small fraction of all New York State employers.
Compliance Requirements: Employers, including small businesses, are required to apply for an Employer Certificate of Eligibility prior to employing any child performer. Such Certificate is valid for three years. Employers are required to apply for a renewal no later than 30 days prior to the expiration of an Employer Certificate of Eligibility. Applicants must provide their identifying business information and contact information, the type and location of employment of child performers for which the certificate is requested, proof of Workers Compensation and Disability Benefits Insurance coverage and compliance with other legal mandates, and a signed acknowledgement that the applicant has read, understands, and agrees to abide by the laws, rules and regulations applicable to the employment of child performers.
Employers may also apply for an Employer Certificate of Group Eligibility permitting employment of a group of children for a group appearance as background in a production. The certificate is valid for the duration of the performance but not for more than two days and is not renewable. Child performer permits and trust accounts are not required for children who are employed pursuant to an Employer Certificate of Group Eligibility.
An employer must notify the Commissioner in writing of its intent to use child performers at least three business days in advance. The employer must provide the dates and expected duration of use, the location of use, the approximate number of child performers to be used, and contact information for the employer's on-site representative.
Prior to employing a child performer, employers must collect a copy of the child's temporary or full Child Performer Permit, emergency contact information, and parent/guardian authorization to provide emergency medical treatment to the child. In order for the full Child Performer Permit to be valid, documentation of the child's trust account must be attached to it. The employer must keep these documents on file for six years.
Employers must transfer fifteen percent of the child performer's gross wages, or a higher amount if directed to do so by the custodian of the account, into a trust account. If the employment is under a Temporary Child Performer Permit, the parent or guardian must provide the necessary trust account information to the employer within fifteen days of the start of the child performer's employment. If the employment is under a full Child Performer Permit, the parent or guardian must attach the trust account documentation and transfer instructions to the copy of the permit given to the employer in order for the permit to be valid. The employer must provide the parent or guardian with written notice of the transfer of funds to the trust account within five business days of such transfer. The employer can provide the notice either separately or as a notation on the child's pay stub.
If the parent or guardian has not provided the trust account information, the employer must transfer the funds to the Comptroller to be placed in a child performer's holding fund, on the same schedule as transfers to a trust account.
Employers must ensure that one or more persons are designated to serve as a responsible person to supervise every child performer under the age of 16 throughout the work day and care for the child's best interests. Outside of live theater and other live performance, a child performer's parent or guardian must designate the responsible person and may choose to serve as the responsible person. In live theater and other live performance, when it is physically impracticable for the employer to permit a responsible person designated by the parent or guardian to accompany each child, the employer must either employ a responsible person (with the parent or guardian's consent to the person), or provide electronic or other means for a responsible person designated by the parent or guardian to see and hear the child; or both.
On school days, if a child performer is not otherwise receiving educational instruction due to his or her employment schedule, the employer must provide the child with time for education during the workday and must set aside a suitable location or locations where teaching, tutoring and study can take place. Such space shall be for the use of children being taught by a location teacher, studying or being tutored in home-schooling, studying independently, or doing homework.
An employer must provide a teacher to a child, other than a home-schooled or correspondence-schooled child, from the third day of missed educational instruction, or from the first day of missed educational instruction if the child was guaranteed three or more consecutive days of employment, through the end of the child's participation in the production.
The employer must employ at least one teacher for every ten child performers in need of on-location education or fraction thereof.
Employers must comply with stated restrictions on the hours of work and of presence at the worksite for child performers.
Employers must also provide meal periods, suitable places for the child to eat, play and rest, and where age appropriate, a crib or playpen at the worksite. Parents or guardians are responsible for providing sufficient nutritious food and diapers.
An employer may not employ a child performer in any activity that could result in harm to the child performer's health, education, morals or general welfare.
Employers must allow a child performer at least twelve hours of rest between days of employment, and at least ten minutes of rest time for every four hours of work time. An employer may not ''hold'' child performers when work is finished in order to ensure that the full rest and recreation time is provided.
The employer must provide orientation training to the child performer and the responsible person regarding safety and health precautions for the venue or location, traffic patterns backstage or on location, safe waiting areas for child performers, restricted areas, location of rest areas/rooms, toilet, makeup areas, and other relevant rooms, emergency procedures, and whom to talk to about hazardous conditions and what actions to take.
Professional Services: Employers will, under certain circumstances spelled out in detail in the proposed rule, be required to procure the services of certified teachers with credentials from any of the jurisdictions that are parties to an Interstate Agreement on Qualification of Education Personnel.
Compliance Costs: The application fees for employers, set by statute, are $350.00 for an original Employer Certificate of Eligibility, $200.00 for renewal, $200 for original and renewal certificates for applicants operating theaters of fewer than 500 seats, and $200 for a Certificate of Group Eligibility. Application fees for parents or guardians for Child Performer Permits are zero.
Employers will be required to employ credentialed teachers for child performers, other than home- or correspondence-schooled ones, if one or more children are unable to attend school due to their employment schedules. One teacher will be allowed to teach up to ten child performers. The proposed rule spells out the circumstances in which a provided teacher is or is not required and supports several alternative methods of educating child performers.
Under certain circumstances spelled out in the proposed rule, employers will have to employ "responsible persons" to accompany children under 16 and care for their well-being. Under other circumstances, parents or guardians will accompany a child throughout the work day at no cost to the employer. The proposed rule supports those existing industry practices that work well.
Economic and Technological Feasibility: The regulation does not require any use of technology to comply. The Department will offer, but not mandate, on-line application and notification for certificates and permits. The Department will post information on its website when these applications are available on-line.
Minimizing Adverse Impact: Fees and paperwork are minimal. Therefore, the Department does not anticipate that the regulations will adversely impact small employers who comply with this Part.
The Department conducted significant outreach to various groups, published an earlier draft of these regulations in the State Register, held two public hearings, and received written comments and oral testimony from numerous organizations and individuals. The organizations participating are listed in the Regulatory Impact Statement.
The Department used input from various groups and individuals to draft the first version of Part 186 and relied heavily on the written comments and oral testimony subsequently received from stakeholders to revise it.
Small Business and Local Government Participation: The Department conducted outreach with small businesses and local governments during the rule making process. Notice of the proposed rulemaking was distributed to business organizations and government entities and was posted on the Department's website for comment. The Department spoke directly with industry stakeholders including performing arts organizations, production companies, advertisers, talent agents, parents, educators of child performers, and unions. As discussed in the Regulatory Impact Statement, the revised proposal incorporates many of their recommendations.
Revised Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas: Any rural area where children are employed as performers will be affected. However, because performances are exempt when they take place in a house of worship, or academy or school, as part of the regular services, curriculum, or activities thereof; or in a private home when the child's performance is not being recorded for commercial purposes; or when the performance is under the direction, control, or supervision of a department or board of education, except when such performances are part of a reality show, the impact is greatly reduced for rural areas.
Most of the affected areas will most likely be urban. The vast majority of child performers and their employers are found in and around New York City in theater, the television, the advertising industry, and in film. When theater is taken on the road, it is traditionally found in cities.
2. Reporting, recordkeeping and other compliance requirements; and professional services: Employers who employ child performers will have reporting, recordkeeping and other compliance requirements as a result of statute and regulation. The burden will rest mostly on the employer, who must collect a copy of the Child Performer Permit, current emergency contact information, authorization to provide emergency medical treatment, and information about the child performer's trust account. The employer must also provide the child performer's parent or guardian with written notice of transfer of funds to the child's trust account; this may either be noted on the pay stub or issued separately. All documents related to this rule must be available for inspection by the Department, school attendance officers, the state education department or local school district, and the Comptroller.
The employer must notify the Department of its intent to use child performers at least three business days in advance. The employer must provide the date and expected duration of use, the location of use, the approximate number of child performers to be used, and the name and contact information of the employer's on-site representative.
The rule also requires employers to provide a teacher for any child performer, other than home-schooled or correspondence-schooled children, who is unable to fulfill his or her regular educational requirements due to work. Many child performers can attend regular school and work outside of school hours. However, when the child's employment schedule prevents this, the teacher must be available on any day the child performer is employed that his or her regular school is in session. The teacher must have teaching credentials from any of the jurisdictions that are parties to an Interstate Agreement on Qualification of Education Personnel. Therefore, employers may be required to engage the services of professional educators to comply with this rule.
3. Costs: Other than staffing needs, costs associated with the rule will be administrative and are required by the statute. Employers must prepare applications and notices, as well as regular transfers of a percentage of the child performer's gross income to a trust account. The fees to apply are $350.00 for the initial Employer Certificate of Eligibility, $200.00 for each renewal, and $200 for both the initial and renewal Certificates to employers operating theaters containing fewer than 500 seats. The employer certificates are good for three years. It is not anticipated that any employer would have to retain additional outside professional services to prepare these documents and financial transfers, although most, if not all, likely retain accountants and other staff to manage payroll and financial transfers for other performers.
Under certain circumstances spelled out in the proposed rule, employers must incur the costs of employing certified teachers for those child performers who must miss school in order to work and who are not home-schooled or correspondence-schooled.
The proposed rule requires every child performer under 16 years of age to be accompanied by a responsible person throughout the work day. Large segments of the industry rely on parents or guardians to do this, at no cost to the employer. The proposed rule fully supports this practice. In live theater and live performance, in contrast, there is a tendency for employers to prefer to hire professionals who will guide the children through their workdays and to limit the presence of parents and guardians backstage. The proposed rule fully supports this practice as well. One responsible person can supervise several children. The cost to the employer of the responsible person rule will vary according to the extent to which parents serve as responsible persons versus hiring someone to fulfill this role.
Legal services may be required to negotiate, draft or review contracts with individuals providing teaching services or acting as the responsible person. It is anticipated that a vast majority of child performer employers in the State already have procurement or legal staff who regularly work on such contracts.
The cost to comply with this rule is minimal for child performers and their parent or guardian. There is no cost to apply for or renew a Child Performer Permit. There may be minimal costs incurred in obtaining a physician's statement that the child performer is physically fit.
4. Minimizing adverse impact: This rule is necessary to implement Labor Law § 154-a. This enabling legislation requires the promulgation of regulations to determine the hours and conditions of work necessary to safeguard the health, education, morals and general welfare of child performers. As discussed in the other SAPA documents related to this rule making, the Department included recommendations within the proposal to minimize adverse impact without jeopardizing the physical or mental health, education or general welfare of the children involved.
5. Rural area participation: The Department sought input on these regulations from various employee representative groups which represent rural area employees. Additionally, the Department received input from various employer representative groups which also represent rural area employers.
Revised Job Impact Statement
The rule will facilitate the orderly employment of child performers in New York by codifying procedures and policies that have applied to child performers for a number of years and further providing for the protection of child performers and assurances that the child performers will receive the education which is mandated under state law. This should increase the availability of child performers for the arts, entertainment, and advertising industries and bring more of this work to New York. It is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs or employment opportunities, therefore no Job Impact Analysis is required.
Assessment of Public Comment
Comments received from 88 individuals and organizations are summarized below, with our responses.
RESPONSIBLE PERSONS
1. Outside of live theater, all types of stakeholders were in favor of parents/guardians serving as "responsible persons" accompanying their child performers throughout the work day and monitoring their safety and well-being. The revised regulations require parents/guardians to serve as, or designate someone else as, "responsible persons."
2. In live theater/performance, there was not general agreement. Industry organizations and others said employers needed to limit or bar parental presence and to employ "responsible persons" for child performers, due to limited physical spaces and the rapid, precise timing necessary in live performance. Others acknowledged that employers may sometimes need to bar parents, but the `decision should be location-specific; parents should be permitted to accompany where they can, and employers should be required to use technology to provide means for parents/guardians to view and hear their children remotely when parents cannot be within sight-and-sound of their children. The revised regulations say that "where it is physically impracticable" for the employer to permit parental accompaniment, the employer may instead employ a "responsible person" or may provide the parents with technical means to "observe and hear" their children, or both.
3. Industry and parents submitted that once a child turns 16, the age at which a young person can legally work alone late at night, they no longer need a "responsible person." The revised regulations discontinue requiring a "responsible person" at age 16.
4. A union and parent groups said that vetting and qualifications are needed for "responsible persons." An industry group recommended raising their minimum age from 18 to 21. The revised proposed regulations do not require vetting; they do say that responsible persons designated by employers "must be qualified by training or experience to care for the safety and well-being of children." We did not raise the minimum age, as there are competent child care workers employed in New York State at age 18.
5. A union, parents, and educators recommended limiting the number of children who can be supervised by one responsible person. This was not done, as it is not clear this is a problem.
MEDICAL EXAMS
There was general agreement among every possible sector that two medical examinations per year are excessive and expensive; one is enough. From unions and parent groups came the objection that requiring screening for eating disorders, mental health, and substance abuse was unnecessary, invasive, and singled out child performers without good reason. The proposed regulations have been revised to require one medical certification of fitness to work per year and no special screenings other than the normal standards of care for physicians.
EDUCATION
1. A union, parents, educators and a legislator urged that we address the needs of home schoolers, correspondence schoolers, and families making alternative arrangements for education. They contended the original draft regulations would force parents to accept the on-set instruction made available by an employer. The revised regulations require the employer to provide the necessary time and facilities for education to home-schoolers, correspondence-schoolers, and school children doing homework, as well as to recipients of on-set instruction, under the same qualifying circumstances.
2. From industry groups, educators and a legislator came a recommendation to change the overly-restrictive times of day for education in the original draft regulations. In response, we have eliminated the restrictions on the times of day during which educational instruction can take place.
3. From film & television, education and a parents group came a recommendation that we require a fixed three hours of education per day, rather than an average of 3 hours. We did not adopt this recommendation, as we had been persuaded of the need for flexible education hours in theatrical settings and also wished to allow "banking" of instructional hours, which necessarily means education hours are not fixed.
4. From industry, education and parents' organizations came the advice that teachers lack the authority to determine hours of education; we revised the language to reflect the reality that the employer has this authority.
5. Groups representing the industry, education, and parents suggested that banking of instructional hours be considered. We have added such a provision, with banked hours allowed to be "spent" either in the same week or another week; no more than 5 banked hours can be carried over from week to week.
6. Unions, industry, education and parents all agreed that we needed to clarify that after initial qualifying events, on-set education must continue throughout the remainder of the production. We have done so.
7. An education organization recommended we remove a provision requiring that workplace instruction be provided to any child who is present when another child is being taught, and we did so.
8. A union, educators, and parents' groups said it was impractical to require employers to continue to provide a teacher during hiatus periods, as children scatter. As the requirement applies only if the child was receiving on-set education, does not scatter, and is unable to resume attending school, we have not made the requested change.
9. Theatrical organizations said that a 12-hour interval between the end of a work day and the start of school the next morning (or else the employer has to provide instruction on set the next day) was too long for live theater. We have reduced the interval to 9 hours in all sectors. We have also removed the provision that the employer's consent was necessary in order for parents to send their child to school with less than a 9-hour interval.
10. A union, educators, and parents said that a 20:1 student teacher ratio was too high. We have reduced the maximum ratio to 10:1.
11. Industry and parent groups argued that employers should not be involved in education except for providing time, space and a teacher if needed. We agreed and have rewritten the education regulations to exclude employers from educational matters other than providing time, space and teachers if needed.
12. We were urged by union, industry, education and parents' groups to allow teachers credentialed in New York or any of the 37 states that are parties to an interstate agreement; we have revised the proposed regulations accordingly.
13. A union recommended requiring teacher credentials specialized to subject areas. We have not done so, concerned that more teachers and cost than is reasonable in some productions would be incurred.
14. A legislator is concerned that providing teachers and managing educational hours and paperwork is too expensive for employers. The revised regulations continue to require provided teachers under specified circumstances but eliminate some paperwork. The revised regulations no longer restrict the times of day during which employers must set aside time for education; this will make it easier for them to schedule such time.
15. Organizations from the film/TV industry, education, parents, and a union said that it was impractical to apply New York State's child performer law and regulations outside of NYS. We have revised the regulations to say that work performed out-of-state is covered for the purposes of the trust and educational provisions only, and only when all of the following conditions exist: the child resides in NYS, the employer has an office in NYS or otherwise does business in NYS, and the child is taken to work at a location out-of-state.
HOURS LIMITS
A broad spectrum of organizations from every possible sector, plus a legislator, argued that the hours limits needed to be later and longer to accommodate performance schedules in live theater. We agree and have extended the limits of the work day in live theater to 5 am - 12:00 midnight on days preceding school days. For children ages 6 and up, we incorporated the numbers of hours of work and of presence at the worksite recommended by The Broadway League and supported by other organizations. For children under 6, we kept these limits the same as before. Variances are available if these pose a hardship on a particular production. As recommended, we also added certain definitions of terms for live theater.
Talent representatives were concerned that one-day assignments could not be completed. In the revised regulations, for the purpose of completing a one-day assignment, an extra 2 hours can be added to the work day of a child over 6 months of age, but the child cannot then work the following day.
TRUST ACCOUNTS
1. Various groups proposed changes in the trust account provisions; as all of these items are statutory, we cannot change them by regulation.
2. A parents' organization recommended we create a system of fines and a claims filing process. We already have these; our Division of Labor Standards accepts and pursues claims for unpaid wages and can assess interest, liquidated damages and civil penalties. Our website provides instructions on how to file a claim and also provides a link to the Comptroller to seek release of funds held there.
3. An industry group was concerned that the regulations exceed the statute in the amount of information that must be submitted to the Comptroller when funds are transferred there. We made no change, as the information required is essential for the Comptroller to match funds held with a particular child or young adult.
NOTICES OF USE
1. Groups from all sectors said notifying the Department 5 business days in advance with detailed information about child performers to be used is burdensome and often impossible. We have reduced the notice period to 3 business days and replaced detailed information with only general information.
2. An organization in the film industry urged exemption of news and documentaries from notices of use. We have not added one, as newscasts and interviews are not covered by the regulations as a whole.
CHILD PERFORMER PERMITS
A parent's organization said the regulations required too much paperwork and sensitive identity information. Subsequently, the legislature reduced the existing paperwork burden on parents by requiring one-year permits rather than six-month permits. The revised regulations no longer require the physician to provide any sensitive information, only to certify that the child is fit to work. However, the identifying information remains, as it is needed for compliance and enforcement, and to match a child performer with funds on hold.
EMPLOYER CERTIFICATES
A parents' group said that employers or agencies would misuse "group certificates" to apply to any random collection of children. These certificates will permit employers to assemble groups of children, as well as use pre-existing groups, but are valid for two days only.
REALITY SHOWS
Two parents' groups urged us not to cover children in reality shows by child performer regulations; instead, cover them by the regular child labor laws. The revised regulations continue to cover children in "reality programming" as they need protections and this was the best fit.
An industry organization said that "responsible persons" and hours limits are inappropriate in reality programming, as children may be unsupervised in their own regular activities and carry them on as if a camera were not present. We disagree, and did not remove this provision, for reasons explained in the longer Assessment.
The industry group pointed out that the proposed light and sound exposure limits for infants might be exceeded in a reality show depicting a child's own life and environment. We have revised the proposed regulations to exempt such a program in such circumstances.
The industry group recommended extending the exemption for contests and competitions beyond school and sports activities. We believe the legislative purpose includes covering children used in game shows and competitions in commercial entertainment and have not exempted these.
OTHER CHANGES RECOMMENDED BY COMMENTERS
We removed a requirement for the employer to provide a nurse to care for children under 6 months of age.
We changed the requirement for parents to provide "instructions" on emergency medical treatment to "authorization for" emergency medical treatment.
We reassigned the responsibility to provide food and diapers from the employer to the parent.
