Florida Senate - 2012 SB 308 By Senator Joyner 18-00040-12 2012308__ 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 defining terms; providing requirements for the 5 employment of children in the entertainment industry; 6 providing responsibilities of employers and parents or 7 legal guardians of such children; requiring a 8 preauthorization certificate for each child; providing 9 duties of the Division of Regulation within the 10 Department of Business and Professional Regulation; 11 providing limitations on the working hours of child 12 performers; providing certification requirements and 13 duties of teachers of child performers; requiring a 14 trust account for certain children employed in the 15 entertainment industry; providing safety requirements 16 for child performers; providing criteria for wage 17 claims; providing requirements for the Department of 18 Economic Opportunity in resolving such claims; 19 providing grounds under which the Division of 20 Regulation may refuse to issue or renew a 21 preauthorization certificate and procedures for 22 challenging such a determination; reenacting ss. 23 450.021(1)(b) and 562.13(2)(b), F.S., relating to the 24 employment of minors in this state, to incorporate the 25 amendments made to s. 450.132, F.S., in references 26 thereto; providing an effective date. 27 28 Be It Enacted by the Legislature of the State of Florida: 29 30 Section 1. Section 450.132, Florida Statutes, is amended to 31 read: 32 (Substantial rewording of section. See 33 s. 450.132, F.S., for present text.) 34 450.132 Employment of children by the entertainment 35 industry; rules; procedures; trust accounts.— 36 (1) DEFINITIONS.—As used in this section, the term: 37 (a) “Certified teacher” means any person who holds a valid 38 and current Florida teaching certificate issued by the 39 Department of Education or its equivalent issued by any state, 40 territory, possession, or other jurisdiction of the United 41 States. 42 (b) “Child” or “minor” has the same meaning as in s. 43 450.012. 44 (c) “Child performer” means a child employed to act or 45 otherwise participate in the performing arts, including, but not 46 limited to, motion pictures, theatrical productions, radio, or 47 television products. 48 (d) “Department” means the Department of Economic 49 Opportunity. 50 (e) “Division” means the Division of Regulation within the 51 Department of Business and Professional Regulation. 52 (f) “Employ” includes suffer or permit to work. 53 (g) “Employee” means a person whose work is controlled by 54 an employer as to how and when to perform the task. 55 (h) “Entertainment industry” has the same meaning as in s. 56 450.012. 57 (i) “Hazardous condition” means, but is not limited to, 58 special effects that could potentially be physically dangerous 59 to the child performer. 60 (j) “Legal guardian” means a person appointed as a guardian 61 by a court. 62 (k) “Place of employment,” including the “movie set,” 63 “worksite,” “set,” and “location,” means the actual location in 64 this state where a person provides his or her services, whether 65 paid or unpaid, as a performer. 66 (l) “Safety” means the condition of being protected from 67 any situation that is detrimental to the child’s health and 68 well-being. 69 (m) “Wage claim” means a document signed by the attorney 70 for a child performer giving the department authority to 71 investigate a complaint of unpaid wages. 72 (n) “Wages” means all amounts at which the labor or service 73 rendered is paid, whether the amount is fixed or on a time, 74 task, piece, or commission basis. 75 (2) EMPLOYMENT OF CHILDREN IN THE ENTERTAINMENT INDUSTRY.— 76 (a) Any person who employs a child performer in the 77 entertainment industry must obtain a preauthorization 78 certificate issued by the division before the start of work. The 79 preauthorization certificate must include the project name; the 80 estimated dates and length of the project; the employer’s name 81 and Florida address; contact information for at least three 82 individuals, including name, address, and telephone numbers; and 83 the child performer’s information, including name, address, date 84 of birth, where the child is registered to attend school, grade 85 level of the child, special educational needs, anticipated 86 length of employment on the project, nature of work on the 87 project, and a list of any possible exposure to potentially 88 hazardous conditions, materials, or substances. A signature is 89 required from the employer certifying compliance with all 90 requirements of the preauthorization certificate. 91 (b) A preauthorization certificate for a child performer 92 may be issued only by the division. 93 (c)1. Before issuing a preauthorization certificate, the 94 employer shall provide to the division a certification of 95 teaching compliance for each certified teacher employed to teach 96 the child performer. The certificate of teaching compliance must 97 state the certified teacher’s appropriate teaching credentials 98 to teach grade levels kindergarten through 12 or to teach the 99 level of education required for the child performer at the place 100 of employment. 101 2. The employer must provide to the division a written 102 criminal history check for all certified teachers on the movie 103 set or at the place of employment. It is the responsibility of 104 the employer, parent, legal guardian, and certified teacher to 105 report any arrest or conviction record and any other information 106 that may present a possible danger to the health, safety, or 107 well-being of the child performer. 108 (d) It is the responsibility of the employer to obtain a 109 child performer preauthorization certificate before the 110 employment begins. The employer must be able to provide a copy 111 at the worksite when requested to do so. The division shall 112 retain a copy of the preauthorization certificate. 113 (e) The child performer preauthorization certificate is 114 valid for 1 year after the date it is issued or until the 115 specific project for which the child is employed by the employer 116 ceases, whichever occurs first. 117 (f) A signature is required from the child performer if the 118 child is 14 years of age or older. 119 (g) A preauthorization certificate may not be given or 120 issued without the signature of a parent or legal guardian 121 indicating his or her permission for his or her child to work on 122 a specific project. A parent or legal guardian must be within 123 eyesight and earshot of the child performer at all times other 124 than the time periods in which the child is with a certified 125 teacher when the teacher is teaching school. 126 (h) The parent or legal guardian of the child performer may 127 contact the division to renew the preauthorization certificate 128 30 days before its expiration. 129 (i)1. It is the responsibility of the employer to provide a 130 certified trainer or technician who is accredited by an 131 occupational safety and health program administered by the 132 United States Department of Labor and who is at the place of 133 employment at all times when a child performer may be exposed to 134 a potentially hazardous condition. 135 2. The employer must provide to the division a written 136 criminal history check for all certified trainers and 137 technicians on the movie set. It is the responsibility of the 138 employer, parent, legal guardian, and certified trainer or 139 technician to report any arrest or conviction record and any 140 other information that may present a possible danger to the 141 health, safety, or well-being of the child performer. 142 (3) LIMITATIONS ON CHILD PERFORMERS’ WORKING HOURS, 143 INCLUDING SCHOOL TIME.— 144 (a) All child performers who are at least 6 years of age 145 but younger than 18 years of age must be provided with a 146 certified teacher for each group of 10 or fewer child performers 147 when school is in session. 148 (b) A child performer may not begin work before 5 a.m. or 149 continue work after 10 p.m. on evenings preceding a school day. 150 A child performer may not work later than midnight on a day 151 preceding a nonschool day. The time that a child performer may 152 be permitted at the place of employment may be extended by one 153 half hour for a meal period. 154 (c)1. An infant who is at least 15 days of age but younger 155 than 7 months of age may not be employed as a child performer 156 unless a physician, who is a board-certified pediatrician, 157 provides a written certification that the infant is physically 158 capable of handling the stress of filmmaking. With the 159 physician’s approval, the infant performer may be at the place 160 of employment a maximum of 2 hours and may not work more than 20 161 minutes. Infants may work up to 2 cumulative hours in any 24 162 hour period. 163 2. A child performer who is at least 7 months of age but 164 younger than 3 years of age may be at the place of employment 165 for up to 4 hours and may work up to 2 hours. The remaining time 166 must be reserved for the child performer’s rest and recreation. 167 3. A child performer who is at least 3 years of age but 168 younger than 6 years of age may be at the place of employment 169 for up to 6 hours and may work up to 3 hours. The remaining time 170 must be reserved for the child performer’s rest and recreation. 171 (d)1. When school is in session, each child performer who 172 is at least 6 years of age but younger than 9 years of age may 173 be at the place of employment for up to 8 hours, for the sum of 174 4 hours of work, 3 hours of school, and 1 hour of rest and 175 recreation. If school is not in session, work time may be 176 increased up to 6 hours, with the remaining time reserved for 177 the child performer’s rest and recreation. 178 2. When school is in session, each child performer who is 179 at least 9 years of age but younger than 16 years of age may be 180 at the place of employment for up to 9 hours, for the sum of 5 181 hours of work, 3 hours of school, and 1 hour of rest and 182 recreation. If school is not in session, work time may be 183 increased up to 7 hours, with the remaining time reserved for 184 the child performer’s rest and recreation. 185 3. When school is in session, a child performer who is at 186 least 16 years of age but younger than 18 years of age may be at 187 the place of employment for up to 10 hours, for the sum of 6 188 hours of work, 3 hours of school, and 1 hour of rest and 189 recreation. If school is not in session, work time may be 190 increased up to 8 hours, with the remaining time reserved for 191 the child performer’s rest and recreation. 192 (e) In exceptional circumstances due to unusual performance 193 requirements, the division may grant a temporary waiver of the 194 mandatory hours and start-to-finish times. The waiver must be 195 granted before the performances of the work that is the subject 196 of the waiver. The division may grant a waiver only under the 197 following circumstances: 198 1. Written notification is provided which includes a list 199 of specific dates and times that the child performer will be 200 employed or present at the place of employment. 201 2. Written acknowledgement is provided that the child 202 performer’s parent or legal guardian has been fully informed of 203 the circumstances and has granted advance consent. 204 (f) The child performer must be provided with a 12-hour 205 rest and recreation break at the end of each workday. 206 (g) All time spent traveling from a studio to a location or 207 from a location to a studio counts as part of the child’s 208 workday. When a child is with a company on a location that is 209 sufficiently distant and requires an overnight stay, and the 210 child is required to travel daily between the living quarters 211 and the place where the company is actually working, the time 212 the child spends traveling does not count as work time if the 213 company does not spend more than 45 minutes traveling each way 214 and furnishes the necessary transportation. 215 (4) CERTIFICATION AND DUTIES OF CERTIFIED TEACHERS.— 216 (a) A certified teacher of a child performer who attends a 217 public school must possess a valid and current teaching 218 certificate issued by the Department of Education. A certified 219 teacher of a child performer who attends a private school or of 220 a nonresident child performer must possess a valid and current 221 teaching certificate from another state, territory, possession, 222 or other jurisdiction of the United States to teach grade levels 223 kindergarten through 12 or to teach the level of education 224 required for the child performer at the place of employment. 225 (b) A certified teacher has, in addition to teaching and in 226 conjunction with the parent or legal guardian, the 227 responsibility of monitoring and protecting the health, safety, 228 and well-being of each child performer who the teacher has been 229 hired to teach during the time that the teacher is required to 230 be present. 231 (c) The certified teacher, parent, or legal guardian may 232 refuse to allow the engagement of the child performer at the 233 place of employment. Any party may report to the division 234 conditions threatening the health, safety, or well-being of the 235 child performer. It is the ultimate responsibility of the parent 236 or legal guardian to ensure that the safety, health, and well 237 being of the child are being protected. A certified teacher 238 shall be present during the time reserved for school, except 239 that a child performer younger than 16 years of age does not 240 require the presence of a certified teacher for up to 1 hour for 241 wardrobe, makeup, hairdressing, promotional publicity, personal 242 appearances, or audio recording if these activities are not 243 located on the actual site of filming or at the theatre, or if 244 school is not in session, and if the parent or legal guardian is 245 present within earshot or eyesight of the child performer. 246 (5) TRUST ACCOUNT FOR CHILD PERFORMERS.— 247 (a) Each time a child performer is employed in the 248 entertainment industry in this state under a contract in an 249 amount equal to or greater than $1,000, a trust account shall be 250 created for the child performer. 251 (b) The parent, legal guardian, or trustee is responsible 252 for establishing a trust account for the child performer in the 253 child performer’s state of residence for the sole benefit of the 254 child performer within 7 business days after the child 255 performer’s employment contract is signed. The child performer 256 may not have access to the trust account until the child 257 performer is 18 years of age or becomes legally emancipated. 258 (c) The parent, legal guardian, or trustee shall provide 259 the employer with a trustee statement within 15 days after the 260 start of employment. Upon receiving the trustee statement, the 261 employer shall provide the parent, legal guardian, or trustee 262 with a written acknowledgement of receipt. 263 (d) If the trustee statement is not provided to the 264 employer within 90 days after the start of employment, the 265 employer shall refer the matter to the circuit court. The 266 circuit court shall have continuing jurisdiction over the trust 267 account. 268 (e) The employer shall deposit not less than 15 percent of 269 the child performer’s gross earnings directly into the child 270 performer’s trust account within 15 business days after the 271 child has performed. If the account is not established, the 272 employer shall withhold 15 percent of the gross income until a 273 trust account is established or until the court orders 274 otherwise. After the employer deposits 15 percent of the gross 275 earnings in the trust account, the employer shall have no 276 further obligation to monitor the funds. 277 (f) After the funds are deposited in the trust account, 278 only the trustee is obligated to monitor and account for the 279 funds. 280 (6) SAFETY REQUIREMENTS FOR CHILD PERFORMERS.— 281 (a) A dressing room may not be occupied simultaneously by a 282 child and an adult performer or by children of the opposite sex. 283 (b) It is the responsibility of the employer to provide a 284 safe, secure shelter for child performers 17 years of age or 285 younger to rest when required to be at the place of employment 286 during nonperformance times. 287 (c) An employer may not cause, induce, entice, or permit a 288 child performer to engage in or be used for sexually exploitive 289 material for the purpose of producing a performance. A child 290 performer may not be depicted in any media as appearing to 291 participate in a sex act. 292 (7) WAGE CLAIMS.— 293 (a) A determination of which child performer may have an 294 attorney appointed in order to assist the child in filing a wage 295 claim shall be based on the child’s earnings. A child performer 296 earning less than one and one-half times the state’s average 297 weekly wages, as determined by the department, shall be 298 considered financially unable to employ an attorney. 299 (b) Wage claim forms must be completed in duplicate, 300 signed, and notarized. 301 (c) The department shall notify the affected employer of 302 any wage claim filed against him or her and allow at least 10 303 days for the employer to file a written response. If the 304 employer disputes the claim, his or her written response shall 305 be given to the child employee’s attorney, who shall be allowed 306 10 days in which to rebut the claim in writing. 307 (d) The department may schedule an administrative hearing 308 if, in its judgment, it would facilitate resolution of the 309 complaint. The conduct of the hearing is not governed by the 310 Administrative Procedures Act, but rather by procedures 311 established by the department. 312 (e) The department may issue a subpoena duces tecum to 313 compel the production of records it believes are necessary for 314 the resolution of the complaint. 315 (f) The department may issue written findings whenever it 316 has sufficient evidence upon which to base its determination. 317 (g) The department may accept a notarized acknowledgment of 318 indebtedness from the employer if the department believes it is 319 the best way to resolve the complaint. 320 (h) The department may file complaints in any court in the 321 state in order to resolve wage disputes or correct violations 322 arising under this section. 323 (i) The department shall obtain a written assignment form 324 signed by the child performer or his or her attorney and 325 notarized before initiating any legal action in any court of any 326 jurisdiction after a thorough investigation and determination 327 that the claim is valid. 328 (j) The department may file a proof of claim on behalf of 329 any child performer in any United States bankruptcy court if a 330 child performer files a wage claim and if, in the department’s 331 judgment, it is appropriate for the resolution of the claim. 332 (8) NONISSUANCE OR NONRENEWAL OF PREAUTHORIZATION 333 CERTIFICATE; REDETERMINATION REQUEST AND PROCEDURES.— 334 (a) The division director may for cause refuse to issue or 335 renew a preauthorization certificate to any project that has 336 violated any provision of this section within a 2-year period. 337 (b) The director shall notify the employer within 10 days 338 after the dates requested of a nonissuance or nonrenewal of a 339 preauthorization certificate. 340 (c) Any affected party may request a reconsideration of the 341 director’s actions, in writing, within 10 days. 342 (d) The director may schedule an administrative hearing if, 343 in his or her judgment, it would facilitate resolution of the 344 complaint. The conduct of the hearing is not governed by the 345 Administrative Procedures Act, but rather by procedures 346 established by the Department of Business and Professional 347 Regulation. 348 (e) The director may issue a subpoena duces tecum to compel 349 the production of records he or she believes are necessary for 350 the resolution of the complaint. 351 (f) The director may issue written findings whenever he or 352 she has sufficient evidence upon which to base his or her 353 determination. 354 Section 2. For the purpose of incorporating the amendments 355 made by this act to section 450.132, Florida Statutes, in a 356 reference thereto, paragraph (b) of subsection (1) of section 357 450.021, Florida Statutes, is reenacted to read: 358 450.021 Minimum age; general.— 359 (1) Minors of any age may be employed: 360 (b) By the entertainment industry as prescribed in ss. 361 450.012 and 450.132. 362 Section 3. For the purpose of incorporating the amendments 363 made by this act to section 450.132, Florida Statutes, in a 364 reference thereto, paragraph (b) of subsection (2) of section 365 562.13, Florida Statutes, is reenacted to read: 366 562.13 Employment of minors or certain other persons by 367 certain vendors prohibited; exceptions.— 368 (2) This section shall not apply to: 369 (b) Minors employed in the entertainment industry, as 370 defined by s. 450.012(5), who have either been granted a waiver 371 under s. 450.095 or employed under the terms of s. 450.132 or 372 under rules adopted pursuant to either of these sections. 373 374 However, a minor to whom this subsection otherwise applies may 375 not be employed if the employment, whether as a professional 376 entertainer or otherwise, involves nudity, as defined in s. 377 847.001, on the part of the minor and such nudity is intended as 378 a form of adult entertainment. 379 Section 4. This act shall take effect July 1, 2012.