PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed 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.
Public hearing(s) will be held at:
10:00 a.m., Dec. 27, 2010 at 75 Varick St., 7th Fl., New York, NY.
Interpreter Service:
Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.
Accessibility:
All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.
Substance of proposed 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. By Chapter 89 of the Laws of 2008, the Commissioner of Labor was 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.
These proposed regulations add a new Part 186 to 12 NYCRR to create in a single part 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 to be employed prior to submission of all documents necessary for a Child Performer Permit to be issued and for an Employer Certificate of Group Eligibility permitting twenty or more child performers to be employed on certain projects for a period of not more than two days.
The proposed regulations require parents and guardians to set up child performer trust accounts into which employers are required to deposit fifteen percent of a child performer's gross earnings. They also require employers to provide a teacher to a child performer who is either guaranteed three or more consecutive days of employment, or who is scheduled to work two consecutive days and it is subsequently determined that additional calls will be necessary. They also set forth the hours and conditions of work for child performers, such hours and conditions set by the age of the child performer.
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 Purpose 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
Text of proposed rule and any required statements and analyses may be obtained from:
Jeffrey Shapiro, New York State Department of Labor, State Office Campus, Building 12, Room 509, Albany, NY 12240, (518) 457-4380, email: jeffrey.shapiro@labor.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
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, which includes Section 151, sets for the circumstances under which child performers may be employed. Among the provisions therein are requirements that fifteen percent of a child performer's earnings be placed in a child performer trust account in accordance with Estates Powers and Trust Law Article 7, Part 7 and that the child performer either fulfill the requirements of Education Law Article 65, Part 1, or be provided a teacher by his or her employer. Section 154-a of Article 4-A of the Labor Law (as added by L. 2008 Ch. 89) charges the Commissioner with promulgating rules and 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 from the potential negative effects of their employment by including all existing requirements related to the welfare of child performers in one regulation. It advocates on behalf of the child performer to prevent unscrupulous employers from taking advantage of a vulnerable individual by including rules related to hours and conditions of work, education, and compensation. The rule protects the child performer from the potential squandering of his or her earnings by a parent or guardian by requiring the establishment of a trust fund for the child performer's pay. The child performer's best interests are also protected by mandating that alternative education be available while the child is involved with a performance, and that a responsible person supervises the child performer at all times, looking out for his or her best interest. This rule outlines responsibilities for both the child performer's employer, and parent or guardian in achieving the above objectives. The rule makes the Department responsible for certification and monitoring.
Costs: The cost to comply with this rule is minimal for child performers and their parent or guardians. There is no cost to apply for a Child Performer Permit, nor any cost to renew the permit. There may be costs incurred in obtaining a physician's statement that the child performer is physically fit, but that would be minimal. Per statute, the parent or guardian is required to establish a trust fund for the child performer, which will have no or minimal cost. To establish such an account, a parent/guardian/custodian need only go to a bank and open an account designated "in trust for" the child performer.
Costs of compliance for employers will vary based on length of time the child performer is employed and the number of child performers employed. These costs will mostly be incurred in the provision of teachers, nurses and/or responsible persons for child performers. Nurses are only required to be provided for child performers that are less than six (6) months of age. Employers may incur some additional accounting costs in the process of transferring at least fifteen percent of the child performer's gross wages into a trust account and then providing the parent or guardian with written records of the transfers. These costs should be insignificant. The cost to apply for an initial Employer Certificate of Eligibility is $350.00. However, there is a lower cost for employers operating theatres containing fewer than 500 seats; their initial cost for the Employer Certificate is $200. Renewals for all Certificates are $200. An Employer Certificate of Group Eligibility is $200.
Local Government Mandate: This rule would only apply to local governments when the child performer's employment is not part of the activities of a school and is not under the direction, control or supervision of a department of education and is not broadcast from a school and is not in a production made by students to meet academic requirements in a recognized course of study. When child performers are employed in performances not associated with the home school or district, home school districts will need to work with the parents and on-site teachers of the child performers to agree on an educational plan that complies with home district requirements while the child is working away from his/her home school. Reports will be provided to the home school regarding the child performer's educational status and progress. Home schools may have access to records regarding the child performer's education at the performance site. If the child performer satisfies the educational requirements agreed to in the educational plan established between the employer and home school or district, that student shall be deemed present by the home district for attendance purposes. Therefore, the local district's State aid related to attendance will not be affected as the rule requires that the child performer receive instruction as a condition of the absence being excused.
Paperwork: This rule creates reasonable paperwork requirements to ensure compliance. The proposed rule would require that employers collect and keep copies of each child performer's Child Performer Permit, proof of age, emergency contact information, instructions for emergency medical treatment, the child performer's equivalent educational requirements (if the child performer is to be employed three or more consecutive days during the school year) and documentation of a child performer's trust account. This documentation or sworn certified copies thereof, must be kept by the employer for a period of not less than six years and made available for the Commissioner of Labor's inspection either at the place of employment or at such other place within New York State as directed by the Commissioner.
Application materials developed by the Department will seek to minimize necessary paperwork. 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. Parents or guardians must provide the Department with information regarding a child performer's employment, and obtain either a current and valid Temporary Child Performer Permit or a Child Performer Permit before employment begins for that child. The parents or guardians must also acknowledge that they have reviewed the guidelines posted on the Department's website regarding eating disorders. Parents or guardians must supply documentation with their application for a Child Performer Permit, including evidence of a trust account, evidence of satisfactory academic performance, certification of physical fitness from a physician, and copies of identifying documents. None of these documents are difficult to procure for a parent or guardian, and the Department does not consider these requirements onerous. Moreover, such documentation assists the Department in ensuring that the child performer's best interests are protected. When the Department approves an employer's application for an Employer Certificate of Eligibility, it will issue a paper certificate to the applicant. When it approves a parent or guardian's application for a Child Performer Permit, the Department will issue a paper permit. Applications for Temporary Child Performer Permits may be made and issued electronically.
Employers must also comply with a notification process. Employers must notify the Department in writing of its employment of a child performer or child performers on a form developed by the Department at least five business days prior to the commencement of the employment. If there are changes in the information reported in this notice, the employer must notify the Department of the changes within twenty-four hours of the change.
The employer must give the parent or guardian written records of the transfer of fifteen percent of a child performer's gross wages to a trust account within five days of such transfer. This may or may not involve additional paperwork, as the employer could choose to document the transfers on the pay stubs. The employer must require any teacher provided for the child performer to complete a written report. This report will record attendance, lessons completed and grades, and will be given by the teacher to the child performer's school, parents or guardians and employer at the end of each employment or at intervals during employment as required by such school.
The Department proposes sensible recordkeeping requirements and monitoring procedures. Monitoring is an opportunity for the Department to ensure compliance and that proper protection of child performers is maintained. The Department will conduct the monitoring process in a reasonable manner to ensure that it does not cause undue hardship. However, employers are expected to fully comply with the recordkeeping requirements of the regulations and to respond cooperatively to the Department's request for information. Child performer records shall also be open to inspection by school attendance and probation officers, the regular school or local school district, the State Education Department and the State Comptroller.
Duplication: This rule does not duplicate, overlap or conflict with any other State or federal requirements. As described above, the local district's State aid related to attendance will not be affected as the rule requires that the child performer receive instruction as a condition of the absence being excused.
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 groups included the following: Actors' Equity Association, the League of American Theatres, the Motion Picture Association of America, Screen Actors Guild, the Actors Fund, the Alliance of Resident Theatres/New York, On Location Education, the NYS AFL-CIO, AFTRA, the Professional Performing Arts School, the Association of Independent Commercial Producers, the New York City Ballet, New York City Metropolitan Opera House, American Ballet Theatre, and the Broadway League. The Department also spoke with Dr. Jennifer Berman and Dr. Ron Zodkevitch, two noted psychiatrists, who have both spent considerable time working with child performers; Paul Petersen, a former child performer himself and President and Founder of A Minor Consideration, a non-profit organization that advocates for the concerns and protection of child performers; and Janet Pallozzotto, a mother of a former child performer and recognized advocate. The Department used input from these various groups and individuals to draft Part 186.
Several groups representing theatre owners, producers, the motion picture industry and ballet companies requested an exemption from the rule's requirements when they were only using a larger group of children for a short scene. This situation arises under circumstances where the group is being used either as a backdrop for a specific scene (e.g. a school assembly) or where they are performing in a scene as a group (e.g. a school glee club or church choir). The intention of the employer under these circumstances is not to employ the individual children as child performers but to secure the services of the group for a short, one time use. Recognizing that this need is prevalent in productions, the Department created the Employer Certificate of Group Eligibility. If an employer is engaging a group or organization of child performers numbering twenty or more, for a duration of two days or less, the employer may apply for this group certificate. The group certificate reduces the burden on the employer by eliminating the need to comply with the requirements necessary for individual child performers who are employed for more than two days. The fee for an Employer Certificate of Group Eligibility is $200.00, which is less than the individual Employer Certificate of Group Eligibility.
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 also 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 solution. 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 temporarily while the parent or guardian fulfills the requirements for the Child Performer Permit. Such permit is valid for fifteen days.
Various production groups requested some flexibility if an employer would incur substantial hardship in complying with this rule, such as a need to deviate from the hourly requirements related to meals, education or work time. In response, the rule allows an employer to apply to the Department 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 notify the Department in writing of its employment of a child performer at least five business days prior to the commencement of such employment. If the information on this notice changes, the employer must notify the Department of the change within 24 hours of the change being made.
A parent or guardian of a child performer must apply for a Child Performer Permit prior to commencement of employment. A Child Performer Permit is valid for six 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.
This regulation shall become effective upon publication of its adoption in the State Register. However, the statutory requirements regarding the establishment of a trust fund and the provision of a certified teacher to enable the child performer to fulfill State education requirements became effective with the enactment of Chapter 630 of the Laws of 2003. This rule helps to clarify those requirements.
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. It is not anticipated that local governments would employ a child performer, and therefore would not be subject to this Part. Additionally, when a child performer's performance 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, it is exempted from these regulations, unless the child performer is participating in a reality show. A school district will be expected to work with the child performer's employer in developing and agreeing to a suitable education plan for the child while he/she is employed, and monitor, through notice from the parents/employer, the student's status in fulfilling that plan. These activities will not have an adverse impact on the respective school districts.
Approximately 446 employers have current Child Performer Certificates of Eligibility. While the number of Child Performer Permits varies depending upon the amount of available work, 12,178 Child Performer Permits were issued in 2009. Each of these employers and child performers would be 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 twenty or more children for a group appearance in a production or performance. Such Employer Certificate of Group Eligibility is valid only for the duration of the performance but not for more than two days.
An employer[s] must notify the Commissioner in writing of its intent to employ a child performer at least five business days prior to the start of that employment. The employer must provide identifying information for each child performer being employed, a description of the performance, and the dates and locations of each child performer's employment. The employer must also notify the Commissioner of any modifications to the information provided in the original notice within twenty-four hours of the change.
Prior to employing a child performer, employers must collect a copy of the child performer's valid Temporary Child Performer Permit or Child Performer Permit, proof of age, emergency contact information for the parent(s) or guardian(s), instructions from the parent(s) or guardian(s) with regard to the provision of emergency medical treatment for the child performer, and, if the child is to be employed more than two days during the school year, the child performer's equivalent educational requirements as provided to the parent(s) or guardian(s) by the child performer's teacher and principal. The employer must verify the existence of the child performer's trust account within fifteen days of the start of employment. The employer must keep these documents on file at the place of employment. No Child Performer Permit is required for a child employed pursuant to an Employer Certificate of Group Eligibility.
Employers must transfer fifteen percent or more of the child performer's gross wages into a trust account. The trust account information must be provided to the employer by the parent or guardian within fifteen days of the commencement of the child performer's employment. The employer must provide the parent or guardian with a written record of the deductions from gross wages and proof of transfer to the trust account within five business days of such transfer. When the parent or guardian has not provided the trust account information, the employer must transfer the funds to the Comptroller to be placed in the child performer's holding fund. No trust fund need be established for a child employed pursuant to an Employer Certificate of Group Eligibility.
Employers must ensure that one or more persons are designated to serve as a responsible person to supervise the child performer and ensure that the employer acts in the child performer's interests during employment. Upon mutual agreement the child performer's parent or guardian may serve as the responsible person. For children employed pursuant to an Employer Certificate of Group Eligibility, the employer must provide at least one responsible person for every twenty children or fraction thereof so employed.
Employers must also ensure that a nurse is provided for child performers less than six (6) months of age. For child performers between the age of fifteen (15) days and six (6) weeks of age, a nurse must be provided for each three (3) or fewer infants. For child performers between the age of six (6) weeks to six (6) months of age, a nurse must be provided for each ten (10) or fewer infants.
If the child performer is unable to attend school for three or more consecutive days, the employer must employ a teacher to fulfill educational requirements pursuant to the education law. Additionally, when the child performer is employed for performances planned on the production schedule for only two days within a thirty day time period and it is subsequently determined that additional calls will be necessary, the child performer's employer shall provide a teacher on the third day of such employment and on each day thereafter during which the primary or secondary school regularly attended by the child performer is in session. The employer must employ one teacher per ten child performers, with the exception that up to twenty child performers may be taught per teacher if the child performers are not in more than two grade levels. The employer must also set aside a location where educational instruction will be provided.
Employers must comply with the restrictions on hours of work and work conditions for child performers in this part. The restrictions on hours of work are per child performer, not per employer. The required conditions of employment include the following: providing a time and a suitable place for meal periods; providing a place for the child performer to play, rest, or study; and, where age appropriate, providing access to a crib or playpen, nutritious food, and diapers. The employer may permit the parent, guardian, or responsible person to be within sight or sound of the child performer at all times during the employment. Where a child performer is less than six years old, the employer must allow a parent or guardian to accompany the child performer at all times at the workplace.
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 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 either the responsible person or parents of child performers under the age of six, regarding the following: 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: Employer may be required to procure the services of a teacher certified by New York or with credentials recognized by New York. Employers may also be required to procure the services of a nurse, if they employ child performers less than six (6) months of age.
Compliance Costs: The application fee is generally capped at $350.00 for an original Employer Certificate of Eligibility and $200.00 for renewal of the Certificate. For applicants operating theaters of fewer than 500 seats, however, the application fee for an original Employer Certificate of Eligibility and the renewal fee of such Certificate are both capped at $200.00.
An employer who is subject to these regulations shall be required to provide a certified teacher if the child performer is working for three or more consecutive days.
An employer must also designate one or more individuals to serve as a responsible person to supervise the child performer at all times during his or her employment. Upon mutual agreement the child performer's parent or guardian may serve as the responsible person. The responsible person shall not be assigned any other duty by the employer that interferes with the responsible person's duties. For children employed pursuant to an Employer Certificate of Group Eligibility, the employer must provide at least one responsible person for every twenty children or fraction thereof so employed.
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 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 groups included the following: Actors' Equity Association, the League of American Theatres, the Motion Picture Association of America, Screen Actors Guild, the Actors Fund, the Alliance of Resident Theatres/New York, On Location Education, the NYS AFL-CIO, AFTRA, the Professional Performing Arts School, the Association of Independent Commercial Producers, the New York City Ballet, New York City Metropolitan Opera House, American Ballet Theatre, and the Broadway League. The Department also spoke with Dr. Jennifer Berman and Dr. Ron Zodkevitch, two noted psychiatrists, who have both spent considerable time working with child performers; Paul Petersen, a former child performer himself and President and Founder of A Minor Consideration, a non-profit organization that advocates for the concerns and protection of child performers; and Janet Pallozzotto, a mother of a former child performer and recognized advocate. The Department used input from these various groups and individuals to draft Part 186. Furthermore, Labor Law § 152(2)(a) explicitly states that a child performer who is working pursuant to permit requirements shall not be declared absent from school. The exception described above to the rule requiring that the employer employ one teacher per ten child performers is contained in the current SAG contract as was adopted in the regulations as means of lowering employer costs in a manner already familiar to the industry.
Small Business and Local Government Participation: The Department conducted outreach with small businesses and local governments during the rule making process. Notice of the rule making process was distributed to business organizations and to government entities, and posted on the website for comment. The Department spoke directly with industry employers representing the performing arts and with associations representing both businesses and child performers. As discussed in the Regulatory Impact Statement and above, the proposal incorporates many of their recommendations. The proposed rule will also be posted on the Department website with a reference to the rule making process in the State Register.
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 taking 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 are exempted from the requirements of this Part, except when such performances are part of a reality show, the impact will be 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 theatre, the television and advertising industries, and in film. When theatre 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, instructions regarding emergency medical treatment, information about the child performer's trust account, and the child performer's equivalent educational requirements from the child performer's parent or guardian. The employer must also provide the child performer's parent or guardian with a written record of deductions from gross wages and proof of transfer to existing child performer trust accounts. 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 employment of the child performer in writing at least five business days prior to the start of the employment. The employer must report the name, address, and last four digits of the social security number of each child performer being employed, a description of each child performer's intended performance, the dates, location(s) and duration of such intended performance, and the name and contact information of the employer's representative who will be at the scene of the performance. Additionally, the employer must notify the Department of any additions, deletions, or other modifications to the information reported in such a notice within twenty-four hours of the change.
The rule also requires employers to provide a teacher for any child performer who is unable to fulfill his or her regular educational requirements due to work. 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 be certified or have credentials recognized by the child performer's state or nation of residence. Therefore, employers may be required to engage the services of professional educators to comply with this rule.
The rule also requires employers to provide a nurse for any child performer less than six (6) months of age. Child performers between the age of fifteen (15) days and six (6) weeks of age must have a nurse provided for each three (3) or few babies. Child performers between the six (6) weeks of age and to six (6) months of age must have a nurse provided for each ten (10) or few infants.
3. Costs:
Employers who are covered by this rule shall enter into contracts with professional educators and nurses in order to comply with this rule. The cost for individual employers will depend upon the number of hours their child performers are employed and the age of the child performers. Nurses are only required for child performers who are less than six (6) months of age. Employers may also be required to hire an additional staff to function as a responsible person, who will be present to represent the best interests of the child. Such responsible person may be a parent or guardian, however; so the cost of such staffing will be dependent on the extent to which the employer utilizes the availability of parents or guardians, as well as on the extent to which the employer utilizes child performers.
Other than staffing needs, costs associated with the rule will be administrative. 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 fee to employers for an Employer Certificate of Eligibility shall be $350.00 for the initial Certificate and $200.00 for each renewal (such Certificates being valid for a period of three years), except that the fee to employers operating theaters containing fewer than 500 seats shall be $200.00 for the initial Certificate and $200.00 for each renewal. It is not anticipated that any child performer 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.
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.
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.
