Bill Text: FL S1316 | 2010 | Regular Session | Introduced
Bill Title: Employment of Children/Entertainment Industry [CPSC]
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2010-04-30 - Died in Committee on Regulated Industries [S1316 Detail]
Download: Florida-2010-S1316-Introduced.html
Florida Senate - 2010 SB 1316 By Senator Joyner 18-01071-10 20101316__ 1 A bill to be entitled 2 An act relating to employment of children by the 3 entertainment industry; amending s. 450.132, F.S.; 4 providing definitions; providing regulations for the 5 employment of children in the entertainment industry; 6 providing responsibilities of employers and parents or 7 legal guardians of such children; providing duties of 8 the Division of Regulation within the Department of 9 Business and Professional Regulation; providing 10 limitations on the working hours of child performers; 11 providing certification requirements and duties of 12 teachers of child performers; requiring a trust 13 account for certain children employed in the 14 entertainment industry; providing safety requirements 15 for child performers; providing criteria for wage 16 claims; providing grounds for refusal to issue or 17 renew a preauthorization certificate and procedures 18 for challenging such a determination; providing an 19 effective date. 20 21 Be It Enacted by the Legislature of the State of Florida: 22 23 Section 1. Section 450.132, Florida Statutes, is amended to 24 read: 25 Substantial rewording of section. See 26 s. 450.132, F.S., for present text.) 27 450.132 Employment of children by the entertainment 28 industry; rules; procedures; trust accounts.— 29 (1) DEFINITIONS.—As used in this section, the term: 30 (a) “Certified teacher” means any person who holds a valid 31 and current Florida teaching certificate issued by the 32 Department of Education or its equivalent issued by any state, 33 territory, possession, or other jurisdiction of the United 34 States. 35 (b) “Child” or “minor” has the same meaning as in s. 36 450.012(3), and includes minors under the age of 6. 37 (c) “Child performer” means a minor employed to act or 38 otherwise participate in the performing arts, including, but not 39 limited to, motion pictures, theatrical, radio, or television 40 products. 41 (d) “Division” means the Division of Regulation within the 42 Department of Business and Professional Regulation. 43 (e) “Employ” includes suffer or permit to work. 44 (f) “Employee” means a person whose work is controlled by 45 an employer as to how and when to perform the task. 46 (g) “Entertainment industry” has the same meaning as in s. 47 450.012(5). 48 (h) “Exempt” means an employee who is exempt from minimum 49 wage or overtime provisions. In order for an employee to be 50 exempt under the executive category, the employee must meet all 51 of the following requirements: 52 1. The employee’s primary duty is to perform nonmanual work 53 related to business management. 54 2. The employee exercises discretion. 55 3. The employee regularly assists executives or performs 56 specialized work or special assignments. 57 4. The employee performs less than 20 percent nonexempt 58 work. 59 (i) “Hazardous occupation” means any occupation determined 60 to be hazardous by the Federal Fair Labor Standards Act. 61 (j) “Independent contractor” means a person who works free 62 from the control of the employer as defined by the Internal 63 Revenue Service. 64 (k) “Legal guardian” means a person appointed as a guardian 65 by a court. 66 (l) “Overtime” means hours worked after 40 hours in a 7-day 67 work week. Overtime shall be computed at time and one-half of 68 the employee’s regular rate of pay. 69 (m) “Pay periods” means the days between paydays. 70 (n) “Paydays” means designated days on which employees 71 shall be paid. Paydays may not be more than 16 days apart, 72 except for professional, administrative, or executive employees 73 or employees employed in the capacity of outside salesman, as 74 those terms are defined under the Federal Fair Labor Standards 75 Act. 76 (o) “Place of employment,” “work location,” “movie set,” 77 “set,” and “location” mean the actual worksite where any person 78 provides services, whether paid or unpaid, in this state as a 79 performer. 80 (p) “Safety” means the condition of being protected from 81 any situation that is detrimental to the child’s health and 82 well-being. 83 (q) “Travel time” means time spent by an employee in travel 84 as part of his or her principal activity, such as travel from 85 job site to job site, which must be counted as hours worked. 86 (r) “Wage claim” means a document signed by an employee 87 that gives the Agency for Workforce Innovation authority to 88 investigate a complaint of unpaid wages. 89 (s) “Wages” means all amounts at which the labor or service 90 rendered is paid, whether the amount is fixed or on a time, 91 task, piece, or commission basis. 92 (t) “Work permit” means a permit that is issued by a 93 designated school official or an agent of the Agency for 94 Workforce Innovation and that allows a child under the age of 16 95 to work under certain conditions. 96 (u) “Written authorization” means a document an employee 97 signs at the time of hiring which gives the employer permission 98 to deduct certain items from the employee’s pay. A written 99 authorization is not needed for an employer to deduct an advance 100 or overpayment of wages, but the employer must pay the employee 101 at least minimum wage times the hours worked. 102 (2) EMPLOYMENT OF CHILDREN IN THE ENTERTAINMENT INDUSTRY.— 103 (a) Any person who employs an actor or performer 17 years 104 of age or younger in the entertainment industry must obtain a 105 preauthorization certificate issued by the division prior to the 106 start of work. The preauthorization certificate shall include 107 the project name; the estimated dates and length of the project; 108 the employer’s name and Florida address; contact information for 109 at least three individuals, including name, address, and 110 telephone numbers; and the child performer’s information, 111 including name, address, date of birth, where the child is 112 registered to attend school, grade level of the child, special 113 educational needs, anticipated length of employment on the 114 project, nature of work on the project, and a list of any 115 possible exposure to potentially hazardous materials or 116 substances. A signature shall be required from the child 117 performer if the child is 14 years of age or older. A signature 118 shall be required from the parent or legal guardian giving the 119 child permission to be employed in the entertainment industry. A 120 signature shall be required from the employer certifying 121 compliance with all requirements of the preauthorization 122 certificate. 123 (b) It is the responsibility of the employer to obtain a 124 child performer preauthorization certificate before the 125 employment begins. The employer must be able to provide a copy 126 at the worksite when requested to do so. The division shall 127 retain a copy of the preauthorization certificate. 128 (c) The child performer preauthorization certificate is 129 valid for 1 year after the date it was issued or until the 130 specific project for which the child is employed by the employer 131 who makes the application for the preauthorization ceases, 132 whichever occurs first. 133 (d) The parent or legal guardian of the child performer may 134 contact the division to renew the preauthorization certificate 135 30 days prior to its expiration. 136 (e) A preauthorization certificate for a child performer 137 may be issued only by the division. 138 (f) No preauthorization certificate shall be given or 139 issued without a signature of a parent or legal guardian 140 indicating his or her permission for his or her child to work on 141 the specific project. A parent or legal guardian must be within 142 eyesight and earshot of the child performer at all times other 143 than the time periods in which certified teachers are teaching 144 school. 145 (g) Prior to issuance of the preauthorization certificate, 146 the employer must provide to the division a certification of 147 compliance for the certified teacher with appropriate teaching 148 credentials to teach grade levels kindergarten through 12 or to 149 teach the level of education required for the child performer at 150 the place of employment. 151 (h) It is the responsibility of the employer to provide a 152 certified trainer or technician accredited in a United States 153 Department of Labor occupational safety and health administered 154 and certified safety program at the place of employment at all 155 times when a child performer may be exposed to potentially 156 hazardous conditions. Hazardous conditions include, but are not 157 limited to, special effects that could potentially be physically 158 dangerous to the child performer. 159 (i) The employer must provide to the division a written 160 criminal history check on all certified teachers and certified 161 trainers and technicians on the movie set. It is the 162 responsibility of the employer, parent, legal guardian, and 163 certified teacher, trainer, or technician to report any arrest 164 or conviction record and any other information that may present 165 a possible danger to the health, safety, and well-being of the 166 child performer. 167 (3) LIMITATIONS ON CHILD PERFORMERS’ WORKING HOURS, 168 INCLUDING SCHOOL TIME.— 169 (a) All child performers at least 6 years of age but less 170 than 18 years of age must be provided with a certified teacher 171 for each group of 10 or fewer child performers when school is in 172 session. 173 (b) Child performers may not begin work before 5 a.m. or 174 continue work after 10 p.m. on evenings preceding school days. 175 Child performers may not work later than midnight on days 176 preceding nonschool days. The time the child performer may be 177 permitted at the place of employment may be extended by one-half 178 hour for a meal period. 179 (c) Infants at least 15 days of age but less than 7 months 180 of age may not be employed as child performers unless a 181 physician who is board-certified in pediatrics provides a 182 written certification that the infant is at least 15 days old 183 and is physically capable of handling the stress of filmmaking. 184 With the physician’s approval, the infant performer may be at 185 the place of employment a maximum of 2 hours and may not work 186 more than 20 minutes. Infants may work up to 2 cumulative hours 187 in any 24-hour period. 188 (d) Child performers at least 7 months of age but less than 189 3 years of age may be at the place of employment for up to 4 190 hours and may work up to 2 hours. The remaining time must be 191 reserved for the child performer’s rest and recreation. 192 (e) Child performers at least 3 years of age but less than 193 6 years of age may be at the place of employment for up to 6 194 hours and may work up to 3 hours. The remaining time must be 195 reserved for the child performer’s rest and recreation. 196 (f) When school is in session, child performers at least 6 197 years of age but less than 9 years of age may be at the place of 198 employment for up to 8 hours, the sum of 4 hours of work, 3 199 hours of school, and 1 hour of rest and recreation. When school 200 is not in session, work time may be increased up to 6 hours, 201 with the remaining time reserved for the child performer’s rest 202 and recreation. 203 (g) When school is in session, child performers at least 9 204 years of age but less than 16 years of age may be at the place 205 of employment for up to 9 hours, the sum of 5 hours of work, 3 206 hours of school, and 1 hour of rest and recreation. When school 207 is not in session, work time may be increased up to 7 hours, 208 with the remaining time reserved for the child performer’s rest 209 and recreation. 210 (h) When school is in session, child performers at least 16 211 years of age but less than 18 years of age may be at the place 212 of employment for up to 10 hours, the sum of 6 hours of work, 3 213 hours of school, and 1 hour of rest and recreation. When school 214 is not in session, work time may be increased up to 8 hours, 215 with the remaining time reserved for the child performer’s rest 216 and recreation. 217 (i) In exceptional circumstances due to unusual performance 218 requirements, the division may grant a temporary waiver of the 219 mandatory hours and start-to-finish times. Such waiver must be 220 granted prior to the performances of the work that is the 221 subject of the waiver. The division may grant a waiver only 222 under the following circumstances: 223 1. Written notification is provided which includes a list 224 of specific dates and times that the child performer shall be 225 employed or present at the place of employment. 226 2. Written acknowledgement is provided that the child 227 performer’s parent or legal guardian has been fully informed of 228 the circumstances and has granted advance consent. 229 (j) The child performer must be provided with a 12-hour 230 rest and recreation break at the end of each workday. 231 (k) All time spent traveling from a studio to a location or 232 from a location to a studio shall count as part of the minor’s 233 workday. When a minor is with a company on a location that is 234 sufficiently distant and requires an overnight stay, and the 235 minor is required to travel daily between living quarters and 236 the place where the company is actually working, the time the 237 minor spends traveling shall not count as work time, provided 238 the company does not spend more than 45 minutes traveling each 239 way and furnishes the necessary transportation. 240 (4) CERTIFICATION AND DUTIES OF CERTIFIED TEACHERS.— 241 (a) A certified teacher of a resident student who attends a 242 public school must possess a valid and current teaching 243 certificate issued by the Department of Education. A certified 244 teacher of a resident student of a private school or a 245 nonresident student must possess a valid and current teaching 246 certificate from another state, territory, possession, or other 247 jurisdiction of the United States to teach grade levels 248 kindergarten through 12 or to teach the level of education 249 required for the child performer at the place of employment. 250 (b) A certified teacher shall, in addition to teaching and 251 in conjunction with the parent or legal guardian, also have the 252 responsibility of monitoring and protecting the health, safety, 253 and well-being of each child performer that teacher has been 254 hired to teach during the time that teacher is required to be 255 present. 256 (c) The certified teacher, parent, or legal guardian may 257 refuse to allow the engagement of the child performer at the 258 place of employment. Any party may report to the division 259 conditions threatening the health, safety, and well-being of the 260 child performer. It is the ultimate responsibility of the parent 261 or legal guardian to ensure that the safety, health, and well 262 being of the child are being protected. A certified teacher must 263 be present during the time reserved for school, except that 264 child performers under the age of 16 do not require the presence 265 of a certified teacher for up to 1 hour for wardrobe, makeup, 266 hairdressing, promotional publicity, personal appearances, or 267 audio recording if these activities are not located on the 268 actual site of filming or at the theatre or if school is not in 269 session, and if the parent or legal guardian is present within 270 earshot or eyesight of the child performer. 271 (5) TRUST ACCOUNT FOR CHILD PERFORMERS.— 272 (a) Each time a child performer is employed in the 273 entertainment industry in this state with a contract equal or 274 greater than $1,000, a trust account shall be created for the 275 child performer. 276 (b) It is the responsibility of the parent, legal guardian, 277 or trustee to set up a trust account for the child performer in 278 the child performer’s state of residence for the sole benefit of 279 the child performer within 7 business days after the child 280 performer’s employment contract is signed. The child performer 281 shall not have access to the trust account until the child 282 performer is 18 years of age or becomes legally emancipated. 283 (c) The parent, legal guardian, or trustee shall provide 284 the employer with a trustee statement within 15 days after the 285 start of employment. Upon receiving the trustee statement, the 286 employer shall provide the parent, legal guardian, or trustee 287 with a written acknowledgement of receipt. 288 (d) If the trustee statement is not provided to the 289 employer within 90 days after the start of employment, the 290 employer shall refer the matter to district court. The district 291 court shall have continuing jurisdiction over the trust. 292 (e) The employer shall deposit not less than 15 percent of 293 the child performer’s gross earnings directly into the child 294 performer’s trust account within 15 business days after the work 295 performance. If the account is not established, the employer 296 shall withhold 15 percent of the gross income until a trust 297 account is established or until the court orders otherwise. 298 After the employer deposits 15 percent of the gross earnings in 299 the trust account, the employer shall have no further obligation 300 to monitor the funds. 301 (f) After the funds are deposited in the trust account, 302 only the trustee is obligated to monitor and account for the 303 funds. 304 (6) SAFETY REQUIREMENTS FOR CHILD PERFORMERS.— 305 (a) No dressing room is to be occupied simultaneously by a 306 minor and an adult performer or by minors of the opposite sex. 307 (b) It is the responsibility of the employer to provide a 308 safe, secure shelter for child performers 17 years of age or 309 younger to rest when required to be at the place of employment 310 during nonperformance times. 311 (c) No employer may cause, induce, entice, or permit a 312 child performer to engage in or be used for sexually exploitive 313 material for the purpose of producing a performance. No child 314 performer may be depicted in any media as appearing to 315 participate in a sex act. 316 (7) WAGE CLAIMS.— 317 (a) Determination of employees who may file a wage claim 318 because of inability to afford legal counsel shall be based on 319 the employee’s earnings. An employee earning less than one and 320 one-half times the state’s average weekly wages, as determined 321 by the Agency for Workforce Innovation, shall be considered 322 financially unable to employ counsel. 323 (b) Wage claim forms must be completed in duplicate, 324 signed, and notarized. 325 (c) The agency shall notify the affected employer of any 326 wage claim filed against him or her and allow at least 10 days 327 for him or her to file a written response. If the employer 328 disputes the claim, his or her written response shall be given 329 to the employee, who shall be allowed 10 days in which to rebut 330 the claim in writing. 331 (d) The agency may schedule an administrative hearing if, 332 in its judgment, it would facilitate resolution of the 333 complaint. The conduct of the hearing is not governed by the 334 Administrative Procedures Act, but rather by procedures 335 established by the agency. 336 (e) The agency may issue a subpoena duces tecum to compel 337 the production of records it believes are necessary for the 338 resolution of the complaint. 339 (f) The agency may issue written findings whenever it has 340 sufficient evidence upon which to base its determination. 341 (g) The agency may accept a notarized acknowledgment of 342 indebtedness from the employer if the agency believes it is the 343 best way to resolve the complaint. 344 (h) The agency may file complaints in any court in the 345 state in order to resolve wage disputes or correct violations 346 arising under this chapter. 347 (i) The agency shall obtain a written assignment form 348 signed by the employee and notarized before initiating any legal 349 action in any court of any jurisdiction after a thorough 350 investigation and determination that the claim is valid. 351 (j) The agency may file a proof of claim on behalf of any 352 employee in any United States bankruptcy court if an employee 353 files a wage claim and if, in the agency’s judgment, it is 354 appropriate for the resolution of the claim. 355 (8) NONISSUANCE OR NONRENEWAL OF PREAUTHORIZATION 356 CERTIFICATE; REDETERMINATION REQUEST AND PROCEDURES.— 357 (a) The division director may for cause refuse to issue or 358 renew a preauthorization certificate to any project that has 359 violated any provision of this section within a 2-year period. 360 (b) The director shall notify the employer within 10 days 361 after the dates requested of a nonissuance or nonrenewal of a 362 preauthorization certificate. 363 (c) Any affected party may request a reconsideration of the 364 director’s actions, in writing, within 10 days. 365 (d) The director may schedule an administrative hearing if, 366 in his or her judgment, it would facilitate resolution of the 367 complaint. The conduct of the hearing is not governed by the 368 Administrative Procedures Act, but rather by procedures 369 established by the Agency for Workforce Innovation. 370 (e) The director may issue a subpoena duces tecum to compel 371 the production of records he or she believes are necessary for 372 the resolution of the complaint. 373 (f) The director may issue written findings whenever he or 374 she has sufficient evidence upon which to base his or her 375 determination. 376 Section 2. This act shall take effect July 1, 2010.
