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 rules regarding the employment of child performers.
Public hearing(s) will be held at:
10:00 a.m., Sept. 20, 2012 at Department of Labor, 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.ny.gov):
The proposed rule creates a new section of regulations designated as 12 NYCRR Part 186 entitled ''Child Performers'' promulgated pursuant to Labor Law § 154-a.
The Child Performer Education and Trust Act of 2003 (the Act) requires trust accounts to be established for child performers and requires employers to transfer 15% of earnings to such accounts to be held in trust until the child reaches eighteen years of age. It requires all child performers to have permits issued by the New York State Department of Labor. By amendment, effective July 21, 2011, such permits were changed from semi-annual to annual. It requires all employers of child performers to have employer certificates issued by the New York State Department of Labor, valid for three years, at specified costs. It 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.
Labor Law § 154-a requires the Commissioner of Labor 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 announced 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 were made in the proposed regulations.
A second version of the proposed rule was announced in the State Register on January 11, 2012. Twenty eight (28) written comments were received, 11 of which were from organizations in the industry and 17 of which were from parents. In response to these comments, further substantive changes were made in the proposed regulations. Further comment and discussion ensued, an further amendments were made to the regulations prompting this submission.
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 and provisions of the Labor 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 fifteen days so as to permit a child performer who has never previously obtained a Child Performer Permit to be employed without or prior to submitting 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 not more than two days of work.
Like all other New York State working papers, a physician's certification of fitness to work is necessary to obtain the Child Performer Permit.
The proposed regulations require child performers below 16 years of age to be accompanied throughout the work day by a responsible person. In film, television and other types of work that is not live performance work, the responsible person is the parent or someone named by the parent. In live theater and other live performance, the responsible person may be named by the employer if allowing parental accompaniment is infeasible.
The proposed regulations require employers to provide a nurse, with pediatric practice experience, and a responsible person for each three or fewer child performers between the ages of fifteen days and six weeks, and for each ten or fewer child performers from ages of six weeks to six months.
The proposed regulations require employers to provide time and facilities for the education of child performers, whether schooled on location, home-schooled, or distance educated, when their work schedules prevent them from fulfilling their educational requirements outside of work. When needed, employers must provide certified or credentialed on-location teachers.
The proposed regulations also set forth the hours of work according to the age of the child and the production sector; one set of hours for live theater and other live performance work and another set of hours for all other productions.
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. However, no penalty or sanction shall be imposed for any violation of this Part that occurs, and is cured, prior to January 1, 2013 and where the employer self-identifies and ceases the conduct upon which the violation is based and abates the violation within 24 hours.
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 Records; contracts
Subpart 186-8 Variances
Subpart 186-9 Suspension or revocation of permits and certificates
Subpart 186-10 Penalties and appeals.
Text of proposed rule and any required statements and analyses may be obtained from:
Amy C. Karp, Legislative Counsel, New York State Department of Labor, State Office Campus, Building 12, Room 534, Albany, NY 12240, (518) 457-7350, email: regulations@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.
Summary of 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 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 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 and television 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. A responsible person may not be listed on the New York State or national sex offender registries.
The proposed rule also requires employers to provide a nurse, who has pediatric practice experience, and a responsible person for each three or fewer child performers between the ages of fifteen days and six weeks, and a nurse and responsible person for each ten or fewer child performers from ages of six weeks to six months. This will be an added cost for some but not all productions.
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 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 child's parents and 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 distance educated.
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 2 days in advance, containing very general information that includes 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 nonconsecutive days, without the children having to apply individually for child performer permits, certificated employers must provide general information 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.
The scope of the rule is expressly excludes situations that are exempt from the child permit requirements of the Arts and Cultural Affairs Law, and provides exemptions from the employer requirements of the rule that are neither compensated nor of a professional character, and that do not occur during school hours or in connection with a trade business or service. In addition, the rule provides opportunities to cure violations without penalties for violations that are self-identified by the employer, and for violations that are cured prior to January 1, 2013.
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.
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. However, no penalties or sanctions shall be imposed for any violation that occurs, and is cured, prior to January 1, 2013 and where the employer self-identifies and ceases the conduct upon which the violation is based and abates the violation within 24 hours.
Regulatory Flexibility Analysis
Effect of Rule: Labor Law 154-a charges the Commissioner of Labor ith 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 in which the child resides will be expected to work with the child performer's employer and parent or guardian 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 516 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 12/13/11. 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 children as a group to establish a background scene or to perform as a group. Such Employer Certificate of Group Eligibility is valid only for the duration of the performance but not for more than two non consecutive days.
An employer must notify the Commissioner in writing of its intent to employ a child performer at least two 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 and any other information required by the Commissioner.
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, 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 of 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 may 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 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 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. A check of the state and federal sex offender registries must be performed, and the results considered in accordance with Article 23-A of the Correction Law.
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 distance educated child who is receiving appropriate instruction, 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 provide at least one teacher for every ten child performers in need of on-location education or fraction thereof and such teacher must be certified or competent to teach student in the applicable grade ranges and subject areas.
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 and may not employ any child younger than 15 days of age.
Employers must allow a child performer at least twelve hours of rest between days of employment. 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 or credentialed teachers recognized by the School District or non-public school in which the child is enrolled.
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 appropriately credentialed teachers for child performers, other than home- or distance educated 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, provided that the teacher is certified or competent to teach the applicable grade ranges and subject areas. 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. A teacher may not be listed on the state sex offender registry.
Employers must also provide a nurse with experience in pediatric practice and responsible person for each three or fewer child performers between the ages of fifteen days and six weeks, and for each ten or fewer child performers from ages of six weeks to six months.
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 earlier drafts 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 then published its revised proposed rule, and received additional written comments.
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, and relied heavily on the comments to the revised proposed rule to make additional revisions.
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 second revised proposal incorporates many of their recommendations.
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; or when the performance is under the direction, control, or supervision of a department or board of education and other circumstances set forth in the regulations, 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, television, and 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 two 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 a home-schooled or distance educated child, 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. The teacher must either be certified or have credentials recognized by the school district or non-public school in which the child is enrolled. 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, $200 for both the initial and renewal Certificates to employers operating theaters containing fewer than 500 seats, and $200 for a Certificate of Group Eligibility. The employer certificates are good for three years, except the Certificate of Group Eligibility, which is valid only for the duration of the performance. 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 distance educated.
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 in live theater and performance. 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.
The proposed rule also requires employers to provide a nurse who has experience in pediatric practice and a responsible person for each three or fewer child performers between the ages of fifteen days and six weeks, and a nurse and responsible person for each ten or fewer child performers from ages of six weeks to six months. This will be an added cost for some but not all productions.
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 been applied to child performers for a number of years and further provides for the protection of child performers and assures 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.
