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.