HB 499

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 the
8	Division of Regulation within the Department of Business
9	and Professional Regulation; providing limitations on the
10	working hours of child performers; providing certification
11	requirements and duties of teachers of child performers;
12	requiring a trust account for certain children employed in
13	the entertainment industry; providing safety requirements
14	for child performers; providing criteria for wage claims;
15	providing grounds for refusal to issue or renew a
16	preauthorization certificate and procedures for
17	challenging such a determination; providing an effective
18	date.
19
20	Be It Enacted by the Legislature of the State of Florida:
21
22	Section 1.  Section 450.132, Florida Statutes, is amended
23	to read:
24	Substantial rewording of section. See
25	s. 450.132, F.S., for present text.)
26	450.132  Employment of children by the entertainment
27	industry; rules; procedures; trust accounts.-
28	(1)  DEFINITIONS.-As used in this section, the term:
29	(a)  "Certified teacher" means any person with a valid and
30	current Florida teaching certificate issued by the Department of
31	Education or its equivalent issued by any state, territory,
32	possession, or other jurisdiction of the United States.
33	(b)  "Child" or "minor" has the same meaning as in s.
34	450.012(3), and includes minors under the age of 6.
35	(c)  "Child performer" means a minor employed to act or
36	otherwise participate in the performing arts, including, but not
37	limited to, motion pictures, theatrical, radio, or television
38	products.
39	(d)  "Division" means the Division of Regulation within the
40	Department of Business and Professional Regulation.
41	(e)  "Employ" includes suffer or permit to work.
42	(f)  "Employee" means a person whose work is controlled by
43	an employer as to how and when to perform the task.
44	(g)  "Entertainment industry" has the same meaning as in s.
45	450.012(5).
46	(h)  "Exempt" means an employee who is exempt from minimum
47	wage or overtime provisions. In order for an employee to be
48	exempt under the executive category, the employee must meet all
49	of the following requirements:
50	1.  The employee's primary duty is to perform nonmanual
51	work related to business management.
52	2.  The employee exercises discretion.
53	3.  The employee regularly assists executives or performs
54	specialized work or special assignments.
55	4.  The employee performs less than 20 percent nonexempt
56	work.
57	(i)  "Hazardous occupation" means any occupation determined
58	to be hazardous by the Federal Fair Labor Standards Act.
59	(j)  "Independent contractor" means a person who works free
60	from the control of the employer as defined by the Internal
61	Revenue Service.
62	(k)  "Legal guardian" means a person appointed as a
63	guardian by a court.
64	(l)  "Overtime" means hours worked after 40 hours in a 7-
65	day work week. Overtime shall be computed at time and a half of
66	the employee's regular rate of pay.
67	(m)  "Pay periods" means the days between paydays.
68	(n)  "Paydays" means designated days on which employees
69	shall be paid. Paydays may not be more than 16 days apart,
70	except for professional, administrative, or executive employees
71	or employees employed in the capacity of outside salesman, as
72	those terms are defined under the Federal Fair Labor Standards
73	Act.
74	(o)  "Place of employment," "work location," "movie set,"
75	"set," and "location" mean the actual worksite where any person
76	provides services, whether paid or unpaid, in this state as a
77	performer.
78	(p)  "Safety" means the condition of being protected from
79	any situation that is detrimental to the child's health and
80	well-being.
81	(q)  "Travel time" means time spent by an employee in
82	travel as part of his or her principal activity, such as travel
83	from job site to job site, which must be counted as hours
84	worked.
85	(r)  "Wage claim" means a document signed by an employee
86	that gives the Agency for Workforce Innovation authority to
87	investigate a complaint of unpaid wages.
88	(s)  "Wages" means all amounts at which the labor or
89	service rendered is paid, whether the amount is fixed or on a
90	time, task, piece, or commission basis.
91	(t)  "Work permit" means a permit that is issued by a
92	designated school official or an agent of the Agency for
93	Workforce Innovation that allows a child under the age of 16 to
94	work under certain conditions.
95	(u)  "Written authorization" means a document an employee
96	signs at the time of hiring that gives the employer permission
97	to deduct certain items from the employee's pay. A written
98	authorization is not needed for an employer to deduct an advance
99	or overpayment of wages, but the employer must pay the employee
100	at least minimum wage times the hours worked.
101	(2)  EMPLOYMENT OF CHILDREN IN THE ENTERTAINMENT INDUSTRY.-
102	(a)  Any person who employs an actor or performer 17 years
103	of age or younger in the entertainment industry must obtain a
104	preauthorization certificate issued by the division prior to the
105	start of work. The preauthorization certificate shall include
106	the project name; the estimated dates and length of the project;
107	the employer's name and Florida address; contact information for
108	at least three individuals, including name, address, and
109	telephone numbers; and the child performer's information,
110	including name, address, date of birth, where the child is
111	registered to attend school, grade level of the child, special
112	educational needs, anticipated length of employment on the
113	project, nature of work on the project, and a list of any
114	possible exposure to potentially hazardous materials or
115	substances. A signature shall be required from the child
116	performer if the child is 14 years of age or older. A signature
117	shall be required from the parent or legal guardian giving the
118	child permission to be employed in the entertainment industry. A
119	signature shall be required from the employer certifying
120	compliance with all requirements of the preauthorization
121	certificate.
122	(b)  It is the responsibility of the employer to obtain a
123	child performer preauthorization certificate before the
124	employment begins. The employer must be able to provide a copy
125	at the worksite when requested to do so. The division shall
126	retain a copy of the preauthorization certificate.
127	(c)  The child performer preauthorization certificate is
128	valid for 1 year after the date it was issued or until the
129	specific project for which the child is employed by the employer
130	who makes the application for the preauthorization ceases,
131	whichever occurs first.
132	(d)  The parent or legal guardian of the child performer
133	may contact the division to renew the preauthorization
134	certificate 30 days prior to its expiration.
135	(e)  A preauthorization certificate for a child performer
136	may only be issued by the division.
137	(f)  No preauthorization certificate shall be given or
138	issued without a signature of a parent or legal guardian
139	indicating his or her permission for his or her child to work on
140	the specific project. A parent or legal guardian must be within
141	eyesight and earshot of the child performer at all times other
142	than the time periods in which certified teachers are teaching
143	school.
144	(g)  Prior to issuance of the preauthorization certificate,
145	the employer must provide to the division a certification of
146	compliance for the certified teacher with appropriate teaching
147	credentials to teach grade levels kindergarten through 12 or to
148	teach the level of education required for the child performer at
149	the place of employment.
150	(h)  It is the responsibility of the employer to provide a
151	certified trainer or technician accredited in a United States
152	Department of Labor occupational safety and health administered
153	and certified safety program at the place of employment at all
154	times when a child performer may be exposed to potentially
155	hazardous conditions. Hazardous conditions include, but are not
156	limited to, special effects that could potentially be physically
157	dangerous to the child performer.
158	(i)  The employer must provide to the division a written
159	criminal history check on all certified teachers and certified
160	trainers and technicians on the movie set. It is the
161	responsibility of the employer, parent, legal guardian, and
162	certified teacher, trainer, or technician to report any arrest
163	or conviction record and any other information that may present
164	a possible danger to the health, safety, and well-being of the
165	child performer.
166	(3)  LIMITATIONS ON CHILD PERFORMERS' WORKING HOURS,
167	INCLUDING SCHOOL TIME.-
168	(a)  All child performers at least 6 years of age but less
169	than 18 years of age must be provided with a certified teacher
170	for each group of 10 or fewer child performers when school is in
171	session.
172	(b)  Child performers may not begin work before 5 a.m. or
173	continue work after 10 p.m. on evenings preceding school days.
174	Child performers may not work later than midnight on days
175	preceding nonschool days. The time the child performer may be
176	permitted at the place of employment may be extended by one-half
177	hour for a meal period.
178	(c)  Infants at least 15 days of age but less than 7 months
179	of age may not be employed as child performers unless a
180	physician who is board-certified in pediatrics provides a
181	written certification that the infant is at least 15 days old
182	and is physically capable of handling the stress of filmmaking.
183	With the physician's approval, the infant performer may be at
184	the place of employment a maximum of 2 hours and may not work
185	more than 20 minutes. Infants may work up to 2 cumulative hours
186	in any 24-hour period.
187	(d)  Child performers at least 7 months of age but less
188	than 3 years of age may be at the place of employment for up to
189	4 hours and may work up to 2 hours. The remaining time must be
190	reserved for the child performer's rest and recreation.
191	(e)  Child performers at least 3 years of age but less than
192	6 years of age may be at the place of employment for up to 6
193	hours and may work up to 3 hours. The remaining time must be
194	reserved for the child performer's rest and recreation.
195	(f)  When school is in session, child performers at least 6
196	years of age but less than 9 years of age may be at the place of
197	employment for up to 8 hours, the sum of 4 hours of work, 3
198	hours of school, and 1 hour of rest and recreation. When school
199	is not in session, work time may be increased up to 6 hours,
200	with the remaining time reserved for the child performer's rest
201	and recreation.
202	(g)  When school is in session, child performers at least 9
203	years of age but less than 16 years of age may be at the place
204	of employment for up to 9 hours, the sum of 5 hours of work, 3
205	hours of school, and 1 hour of rest and recreation. When school
206	is not in session, work time may be increased up to 7 hours,
207	with the remaining time reserved for the child performer's rest
208	and recreation.
209	(h)  When school is in session, child performers at least
210	16 years of age but less than 18 years of age may be at the
211	place of employment for up to 10 hours, the sum of 6 hours of
212	work, 3 hours of school, and 1 hour of rest and recreation. When
213	school is not in session, work time may be increased up to 8
214	hours, with the remaining time reserved for the child
215	performer's rest and recreation.
216	(i)  In exceptional circumstances due to unusual
217	performance requirements, the division may grant a temporary
218	waiver of the mandatory hours and start-to-finish times. Such
219	waiver must be granted prior to the performances of the work
220	that is the subject of the waiver. The division may grant a
221	waiver only under the following circumstances:
222	1.  Written notification is provided that includes a list
223	of specific dates and times that the child performer shall be
224	employed or present at the place of employment.
225	2.  Written acknowledgement is provided that the child
226	performer's parent or legal guardian has been fully informed of
227	the circumstances and has granted advance consent.
228	(j)  The child performer must be provided with a 12-hour
229	rest and recreation break at the end of each workday.
230	(k)  All time spent traveling from a studio to a location
231	or from a location to a studio shall count as part of the
232	minor's workday. When a minor is with a company on a location
233	that is sufficiently distant and requires an overnight stay, and
234	the minor is required to travel daily between living quarters
235	and the place where the company is actually working, the time
236	the minor spends traveling shall not count as work time,
237	provided the company does not spend more than 45 minutes
238	traveling each way and furnishes the necessary transportation.
239	(4)  CERTIFICATION AND DUTIES OF CERTIFIED TEACHERS.-
240	(a)  A certified teacher of a resident student who attends
241	a public school must possess a valid and current teaching
242	certificate issued by the Department of Education. A certified
243	teacher of a resident student of a private school or a
244	nonresident student must possess a valid and current teaching
245	certificate from another state, territory, possession, or other
246	jurisdiction of the United States to teach grade levels
247	kindergarten through 12 or to teach the level of education
248	required for the child performer at the place of employment.
249	(b)  A certified teacher shall, in addition to teaching and
250	in conjunction with the parent or legal guardian, also have the
251	responsibility of monitoring and protecting the health, safety,
252	and well-being of each child performer that teacher has been
253	hired to teach during the time that teacher is required to be
254	present.
255	(c)  The certified teacher, parent, or legal guardian may
256	refuse to allow the engagement of the child performer at the
257	place of employment. Any party may report to the division
258	conditions threatening the health, safety, and well-being of the
259	child performer. It is the ultimate responsibility of the parent
260	or legal guardian to ensure that the safety, health, and well-
261	being of the child are being protected. A certified teacher must
262	be present during the time reserved for school, except that
263	child performers under the age of 16 do not require the presence
264	of a certified teacher for up to 1 hour for wardrobe, makeup,
265	hairdressing, promotional publicity, personal appearances, or
266	audio recording if these activities are not located on the
267	actual site of filming or at the theatre or if school is not in
268	session, and if the parent or legal guardian is present within
269	earshot or eyesight of the child performer.
270	(5)  TRUST ACCOUNT FOR CHILD PERFORMERS.-
271	(a)  Each time a child performer is employed in the
272	entertainment industry in this state with a contract equal or
273	greater than $1,000, a trust account shall be created for the
274	child performer.
275	(b)  It is the responsibility of the parent, legal
276	guardian, or trustee to set up a trust account for the child
277	performer in the child performer's state of residence for the
278	sole benefit of the child performer within 7 business days after
279	the child performer's employment contract is signed. The child
280	performer shall not have access to the trust account until the
281	child performer is 18 years of age or becomes legally
282	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
364	the director's actions, in writing, within 10 days.
365	(d)  The director may schedule an administrative hearing
366	if, in his or her judgment, it would facilitate resolution of
367	the 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
371	compel the production of records he or she believes are
372	necessary for 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.

CODING: Words stricken are deletions; words underlined are additions.