BILL ANALYSIS Ó
AB 1401
Page 1
Date of Hearing: April 12, 1211
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Nora Campos, Chair
AB 1401 (Arts, Entertainment, Sports, Tourism and Internet
Media Committee)
As Introduced: March 2, 2011
SUBJECT : Employment of minors: entertainment work permits
SUMMARY : Establishes a program to be administered by the Labor
Commissioner (LC) that would enable a minor's parent or guardian
to obtain a temporary permit for the employment of a minor,
under specified conditions. This bill would also authorize the
LC to collect and deposit money into the Entertainment Work
Permit (EWP) Fund, which the bill creates, and upon
appropriation by the Legislature, to expend the proceeds from
this fund to pay the costs of administrating the temporary
minor's EWP program. Specifically, this bill :
1)Provides that prior to the employment of a minor under the age
of 16 years, as specified, the LC may issue a temporary permit
authorizing employment of the minor.
2)Declares the purposes of the temporary permit are to:
a) Enable a parent or guardian of the minor to meet the
requirement for a permit,
b) Establish a trust account for the minor, and;
c) Produce the documentation required by the LC for the
issuance of a permit.
3)Establishes the following conditions for the temporary work
permit:
a) A temporary permit shall be valid for a period not to
exceed 10 days from the date of issuance, and;
b) A temporary permit shall not be issued for the
employment of a minor if the minor's parent or guardian has
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previously applied for or been issued a permit by the LC
pursuant to Labor Code Section 1308.5, or a temporary
permit pursuant to this section for employment of the
minor.
4)Requires the Division of Labor Standards Enforcement (DLSE) to
prepare and make available on its Internet Web site the
application form for a temporary permit.
5)Requires an applicant for a temporary permit to submit a
completed application and application fee online to DLSE.
6)Requires upon receipt of the completed application and fee,
DLSE to immediately issue a temporary permit.
7)Creates the EWP Fund in the State Treasury.
8)Directs the LC to deposit all fees for temporary permits
received into the fund.
9)Provides that the funds deposited in the EWP Fund shall be
available to the LC, upon appropriation by the Legislature, to
pay for the costs of administration of the online temporary
minor's EWP program.
10)Allows the LC to set forth the fee in an amount sufficient to
pay for these costs, not to exceed $50.
EXISTING LAW
1)Requires the written consent of the LC for the employment of a
minor in the entertainment industry, as specified.
2)Requires an EWP to be obtained from the LC for a minor in
order for them to be employed in the entertainment industry.
3)Provides that once written consent is given by the LC, as
specified, that consent shall be void after the expiration of
10 business days from the date the written consent was granted
unless it is attached to a true and correct copy as evidence
that a "Coogan Trust Account" has been established on behalf
of the minor. ÝSee comment 4) below.]
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement and Support : According to the author,
"Child performers must have an EWP issued by the LC in order
to be employed in California. However, under the current
system, there is no way to obtain a same day work permit.
Instead, a paper application must be presented to the LC's
office, and a work permit is mailed back to the applicant.
This process takes up to two weeks to complete. The delay in
obtaining a permit can deny some child performers the ability
to work.
"In order to avoid this situation, parents of child performers
often will obtain an EWP prior to even auditioning their child
for a job. This results in an inefficient and expensive work
volume for the LC's office - which is vastly larger than the
pool of actual children working in the industry in need of a
permit." The LC reports issuing from 60-70,000 EWPs annually.
The author adds, "There is an additional important problem
with the existing permit process which subverts legislative
intent to protect the financial assets of working children.
Through a provision in law known as the Coogan Act, a blocked
trust bank account must be established for all children
working in the entertainment field. These provisions of the
Family Code are only enforced through the Labor Commissioner's
EWPs.
"Under current law, the existing permits expire in 10 days,
unless proof that a Coogan blocked trust account exists.
However, once a child begins to work, no one ever revisits the
permit to verify that a Coogan account exists. Because the
Coogan Act is written into the Family Code, the enforcers of
the LC's office do not follow up on this important child labor
provision."
"This bill will solve both of these issues through the
creation of a same-day online permit system for EWPs for
minors.
"Under this legislation parents/guardians would be able to
apply online for their child performer's first permit for a
slight fee, only once their child actually obtained
employment. This would prevent the waste of time and money
that the current system encourages. The online permit would
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only valid for 10 days, in order to allow the applicant time
to gather the required documentation, including establishing a
Coogan bank account. All permit renewals would be processed
through the mail only and would continue to be free."
2)Employment of Minors - Entertainment Work Permit : According
to the California State Department of Industrial Relations Web
site, except in limited circumstances defined in law and
summarized in the child labor law booklet, all minors under 18
years of age employed in the state of California must have a
permit to work. Typically, after an employer agrees to hire a
minor, the minor obtains from his or her school a Department
of Education form entitled "Statement of Intent to Employ
Minor and Request for Work Permit". The form must be
completed by the minor and the employer and signed by the
minor's parent or guardian and the employer. After returning
the completed and signed form to the school, school officials
may issue the permit to employ and work.
In addition to the permit to work, minors aged 15 days to 18
years employed in the entertainment industry must have a
permit to work, and employers must have a permit to employ,
both permits being issued by the DLSE. These permits are also
required for minors making phonographic recordings or who are
employed as advertising or photographic models. Permits are
required even when the entertainment is non-commercial in
nature.
There is no fee to obtain an EWP. The application for
permission to work in the entertainment industry must be
filled out completely and mailed, along with any required
documents and a pre-addressed stamped envelope, to any office
of the DLSE. (Labor Code Section 1308.5.)
The Labor Code further provides, in Section 1308.9(a), that if
the LC provides written consent pursuant to Labor Code Section
1308.5, for the employment of a minor, that consent shall be
void after the expiration of 10 business days from the date
written consent was granted, unless it is attached to a true
and correct copy of the trustee's statement evidencing the
establishment on behalf of the minor of a "Coogan Trust
Account" pursuant to Chapter 3 (commencing with Section 6750)
of Part 3 of Division 11 of the Family Code. If the written
consent is attached to a true and correct copy of that
trustee's statement, the written consent shall be valid for a
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six-month period.
In order to prevent persons from simply going from one DLSE
office to the next, to avoid opening a Coogan Trust Account,
the law further provides that a person may not apply for the
written consent of the LC to employ the same minor under a
contract, described in Family Code Section 6750, more than
once in any six-month period. If written consent is issued by
the LC for the employment of the same minor more than once
within any six-month period, the earliest dated written
consent shall be valid and any other written consent issued
during that six-month period shall be void. ÝLabor Code
Section 1309.9(b).]
3)AB 1401 Explained as an Expedited Alternate Method to Obtain
an EWP :
Prior to the employment of a minor under the age of 16 years,
the LC may issue a temporary permit authorizing employment of
the minor, if consistent with Labor Code Section 1308.5. This
permit will only be available online, and will be subject to a
fee in an amount sufficient to pay for the costs of the
temporary permit program, but not be more than $50.
The purpose of the temporary permit is to allow the parent or
guardian of a first-time permit applicant opportunity to
establish a trust account for the minor and to produce the
education and medical documentation required by the LC for the
issuance of a minor's EWP. The temporary permit will only be
valid for 10 days from the date of issuance.
Currently, a temporary permit will not be issued for the
employment of a minor if the minor's parent or guardian has
previously applied for, or been issued a permit by the LC
pursuant to Labor Code Section 1308.5. A temporary permit
will not be issued from the DLSE Internet Web site if a
previous temporary permit has been requested or obtained.
The DLSE will prepare the application form and make it
available on its Internet Web site. Once an applicant submits
a completed application and application fee online to the
DLSE, a temporary permit will be immediately issued.
The online temporary permit program will exist in addition to
the current permit program. The free, mail-in permit
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application system will be available for those applicants who
wish to use it.
4)Background - The Coogan Act: Requirement For Permits is Not
Enforced :
The Coogan Act was passed in 1938 in response to Jackie Coogan's
plight. Even though he earned millions as a child actor,
Coogan was surprised to find out when he reached adulthood
that his entire earnings were depleted, because his mother and
stepfather spent all his money - legally. The Coogan Act was
enacted to preserve a portion of a minor's earnings under an
employment contract for creative or artistic services, for the
minor's use when he or she reaches the age of majority.
SB 1162 (Burton), Chapter 940, Statutes of 1999, overhauled
the Coogan Act. Applicable to both court-approved and
non-court-approved minors' contracts for creative or artistic
employment, SB 1162 requires 15% of a minor's earnings to be
set aside and deposited into a "Coogan Trust Account",
invested in low-risk financial vehicles, and blocked from use
until the minor is emancipated or reaches age 18. To enforce
the set-aside, SB 1162 imposes a duty on the employer to make
the deposit directly into the minor's Coogan Trust Account,
which a parent or guardian is required to open at an insured
financial institution and to invest in a manner consistent
with that of a trustee. Annual accounting is required, and
court supervision of trust accounts for minors with
court-approved contracts continues until the minor turns 18.
To further strengthen enforcement of the Coogan Act, the
Legislature adopted, and the Governor signed, SB 210 (Burton),
Chapter 667, Statutes of 2004, which added the requirement
that the LC's written consent for performances of a minor
under Labor Code Section 1308.5 be limited to 10 days, unless
a Coogan Trust Account has been established ÝSee comment
number 2), above].
The enforcement of this system was assumed to be placed upon
the studio teachers, with whom the duty to check a child
performer's paperwork rests. A studio teacher is a
certificated teacher who holds both a California Elementary
and a California Secondary teaching credential, valid and
current, certified by the LC. Studio teachers are paid by the
employer.
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A studio teacher, in addition to teaching has responsibility
for caring and attending to the health, safety, and morals of
minors under 16 years of age, shall take cognizance of such
factors as: working conditions, physical surroundings, signs
of minor's mental and physical fatigue, demands placed upon
minor in relation to minor's age, agility, strength, and
stamina, and may refuse to allow engagement of minor on set or
location and may remove minor there from, if in judgment of
the studio teacher, conditions are such as to present a danger
to the health, safety, or morals of the minor.
However, studio teachers do not believe that they are
responsible for enforcing the Family Code provisions of the
law. Therefore, no one does a follow-up check of a child
performer's paperwork after 10 days, in order to assure that
the minor's work permit has proof of a Coogan blocked trust
account.
5)Issues Raised in the Veto Message of Prior Related Legislation
Considered :
a) Minors in the entertainment industry are not covered by
employment protections which exist for student work permit
holders:
"Throughout American history there have been many changes
in the perception of children as laborers. Today, society
as a whole no longer considers children to be viable
members of the labor force, and the federal government has
enacted regulations to monitor the work a minor may do.
However, there is a glaring hole in the federal laws and
regulations pertaining to employment of minors." (There's
No Business Like Show Business: Child Entertainers and the
Law, Ý 2004] 6 U. Pa. J. Lab. & Emp. L. 429). Minors
employed as actors or performers in motion pictures or
theatrical productions or in radio or television
productions are exempt from Fair Labor Standards Act (FLSA)
coverage. FLSA rules regarding total allowable number of
work hours in one day and allowable times of day to work do
not apply. (29 CFR §570.125).
The FLSA provides the rules which govern the work permits
issued under the California Education Code. Therefore,
shifting the issuance of EWPs to the schools, or doing away
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with them altogether, could create a vacuum where none of
the protections anticipated by the FLSA would exist for
children in the entertainment fields, and none of the
protections of the DLSE's permit issuance would remain.
For instance, under Federal Law, and the California
Education Code, no child under 12 years of age may obtain a
work permit. However, a child in the entertainment field
may begin working at 15 days of age. This discrepancy begs
the question, who will look after the interests of a child
performer from the age of two weeks to twelve years of age?
While, "It is true that California appears to be a safe
haven for children in the entertainment industry, which is
promising, considering that the majority of the
entertainment industry is located in California.
California, like many other states with progressive
statutes, has a problem with enforcing its laws." (There's
No Business Like Show Business: Child Entertainers and the
Law, Ibid).
According to legal experts, "Despite the existence of these
well-written laws, they are rarely followed, and the
abusive situation concerning infants has only worsened.
The lack of adherence to these laws is evident on some of
the most popular television shows. In particular, the
top-rated show 'E.R.' was noted for a serious offense, when
the producers allegedly used premature one-month old twins
to depict a live birth scene during which they were
smothered with cream cheese and jelly, and on the CBS
television show 'Chicago Hope', a Production Assistant
tried to sedate a baby in order to portray a story line
concerning an anesthetized infant.
"There are special concerns for babies in the entertainment
industry because the existing laws are ignored, and because
many producers have found ways to work around them. The
'Twins Game' is one of the most frequently used tactics.
Although by law twins are considered two distinct
individuals, the movie business utilizes them as one.
Originally, twins were hired so that one baby could
substitute for the other when one became fussy or cranky.
Then, the producers began to use the twins to effectively
double the time that infants could be on the set, instead
of employing them for interchangeability. Although this is
illegal, producers still frequently engage in these
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activities, and, as a result, multiple birth babies are in
high demand in the industry." (When Parental Interference
Goes Too Far: The Need For Adequate Protection of Child
Entertainers and Athletes, Ý2000] 18 Cardozo Arts & Ent.
L.J. 427)
Will school administrators be asked to take on the
obligation of assuring the health and vitality of newborn
actors?
Are they better suited to the task of assuring workplace
safety than the enforcement officers of the DLSE?
b) Coogan Act is enforced only through EWPs, thus a new
statewide bureaucracy would be needed if the Department of
Education assumes all work permit duties:
As detailed above, under current law, the LC's written
consent is required for the employment of a minor in the
entertainment industry under various circumstances,
including, for example, for employment of a 15 day old for
performance on any motion picture set or location. A
violation of this statute is a misdemeanor.
To ensure compliance with the Coogan Act, the law also
requires that the LC's written consent for performances of
a minor under Labor Code Section 1308.5 be limited to six
months, and that a permit will become void after 10 days
unless a Coogan Trust Account has been established, and
proof thereof is affixed to the permit. In order to
prevent venue shopping by persons who have already received
a 10 day work permit, the LC has the ability to track
permits once issued, through their permit numbering system.
The LC's permit authority is the only mechanism in law for
assuring compliance with the financial protections intended
under the Coogan Act.
By way of contrast, the work permits issued by the schools
have no uniform issuing authority. Indeed, under law, "any
of the following individuals may issue a work permit to a
minor subject to the requirements and conditions of this
chapter: The superintendent of a school district in which
the minor resides; the chief executive officer of a charter
school that the minor attends; a person holding a services
credential with a specialization in pupil personnel
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services authorized by the superintendent of the school
district or chief executive officer in writing, or a
certificated work experience education teacher or
coordinator authorized by the superintendent of the school
district or chief executive officer in writing, and; if the
minor resides in a portion of a county not under the
jurisdiction of the superintendent of a school district and
does not attend a charter school, the county superintendent
of schools, a person holding a services credential with a
specialization in pupil personnel services authorized by
the county superintendent of schools in writing, or a
certificated work experience education teacher or
coordinator authorized by the county superintendent of
schools in writing may issue a work permit." (Education
Code Section 49110.)
This broad grant of permitting authority calls into
question the ability of the education community to ensure
trust funds are established, the problem which precipitated
the need for Labor Code Section 1308.5. ÝSee Legislative
History, SB 210 (Burton), Chapter 667, Statutes of 2003,
"According to the sponsors of this bill, the Motion Picture
Association of America and the Screen Actors Guild (SAG),
many parents still have not established Coogan trusts for
their minor children with artistic employment contracts
despite the fact that this law has been in effect for three
years." Id]. The financial protections afforded under the
Coogan Act would be easily avoided if the permits would be
issued by school officials, and not under the uniform state
authority as provided by the current practice of DLSE
issuance of EWPs.
In order for enforcement of the Coogan Act to continue as
an aspect of the EWP, a new statewide bureaucracy would
need to be created. This system would need to have a local
component, to collect information regarding the issuing of
EWPs by each authorized issuer. The system would have to
have a centralized depository for the information, into
which the local issuers would input their actions. The
system would also have to be able to identify and track
individual applicants, to assure that permits are not given
to those denied elsewhere in the state. This would be a
daunting task, given that there are over 1,050 public
school districts in the state of California.
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Would a creation of a new statewide work permit tracking
system based in the Department of Education be a less
expensive and more efficient system than the current law?
c) Issuing and Enforcing Work Permits and Licenses Are
Duties of the LC :
Currently the LC issues licenses to farm labor contractors;
talent agents; door-to-door sales; industrial homeworkers;
sheltered workshops, and; special minimum wage workers.
DLSE registers garment manufactures and car washing &
polishing firms. The LC also certifies studio teachers and
issues EWPs for minors aged 15 days to 18 years employed in
the entertainment industry, who must have a permit to work,
and for employers who must have a permit to employ minors.
6)Prior and Related Legislation :
AB 2032 (Davis), of the 2009-10 Legislative Session, vetoed by
Governor Schwarzenegger for similar issues as raised in the
veto of AB 402, would have created a fund for the enforcement
of existing law for minors in the entertainment industry,
which, with Legislative appropriation, would finance the
issuance of EWPs and the enforcement of working conditions for
minors in the entertainment industry.
AB 402 (Davis), of the 2009-10 Legislative Session, vetoed by
Governor Schwarzenegger, was substantially similar in content
to AB 2032 (Davis). In his veto statement, Governor
Schwarzenegger stated that "Rather than creating a new fee and
duties for the Department of Industrial Relations, it is
important to administer this program in the most efficient
manner by transferring this function to the schools."
SB 210 (Burton), Chapter 667, Statutes of 2004, which was
discussed earlier, added the requirement that the LC's written
consent for performances of a minor be limited to 10 days,
unless a Coogan Trust Account has been established.
SB 1162 (Burton), Chapter 940, Statutes of 1999, which was
discussed in Comment
2) above, made significant changes to the Coogan law.
7)Double-referral : Should this bill pass out of this committee,
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it will be re-referred to the Assembly Committee on Labor and
Employment.
REGISTERED SUPPORT / OPPOSITION :
Support
Screen Actors Guild
Opposition
None known
Analysis Prepared by : Dana Mitchell / A.,E.,S.,T. & I.M. /
(916) 319-3450