BILL ANALYSIS Ó
AB 2539
Page A
Date of Hearing: April 6, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 2539
(Levine) - As Amended March 30, 2016
SUBJECT: Modeling agencies: licensure: models: employees
SUMMARY: Establishes various requirements regarding models and
modeling agencies, as specified. Specifically, this bill:
1)Defines "model" to mean an artist covered under Wage Order 4
of the Industrial Welfare Commission (IWC) who, in the course
of his or her occupation, performs modeling services for, or
who consents to the transfer of his or her legal right to the
use of his or her name, portrait, picture or image for
advertising purposes of trade directly to, a retail store, a
manufacturer, an advertising agency, a photographer, a
publishing company, or a modeling agency.
2)Defines "modeling services" to mean the appearance by a model
in photographic sessions or the engagement of model in runway,
live, filmed, or taped performances requiring him or her to
pose, provide an example or standard of artistic expression,
or to be a representation to show the construction or
appearance of some thing or place for purposes of display or
advertising.
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3)Defines a "modeling agency" as a person that facilitates an
employment opportunity (as specified) for a model and that
holds a valid license under existing law related to talent
agencies.
4)Prohibits a person from engaging in or carrying on the
occupation of a modeling agency without first procuring a
license under existing law related to talent agencies.
5)Provides that a model shall be classified as an employee of
the person for whom the model's services are directly
provided.
6)Requires the Occupational Safety and Health Standards Board
(Standards Board), no later than December 1, 2017, and in
consultation with accredited specialists in the prevention and
treatment of eating disorders, to adopt an occupational safety
and health standard for models.
7)Specifies that the standard shall have an operative date of
September 1, 2018, to be fully complied with by December 31,
2018.
8)Specifies that the standard shall address issues including,
but not limited to:
a) Protection of the model's rights to health care privacy
under federal law and all other provisions of law.
b) Workplace safety, especially for minors, including
protection from sexual exploitation and sexual predators.
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c) Prevention and treatment of eating disorders.
9)Provides that this bill shall not apply to persons covered
under IWC Wage Order 11 (regulating the broadcasting industry)
or IWC Wage Order 12 (regulating the motion picture industry).
10)Contains related legislative findings and declarations.
EXISTING LAW:
1)Establishes California Occupational Safety and Health Act of
1973 to address certain safety and other responsibilities of
employers and employees, making violations of Cal OSHA, under
certain circumstances, a crime.
2)Establishes the Department of Industrial Relations to foster,
promote, and develop the welfare of the wage earners, to
improve, their working conditions, and to advance their
opportunities for profitable employment.
3)Provides for the licensure and regulation of talent agencies
by the Labor Commissioner, as defined.
FISCAL EFFECT: Unknown
COMMENTS: This bill is designed to address health impacts
affecting fashion models, largely through framing the concern as
a workplace health and safety issue.
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According to the author:
"It is clear that the fashion industry has a health
problem-one that is not being adequately addressed through
voluntary guidelines. However, as has been stated by many
models in the industry, the health problem is also a labor
problem.
The fashion industry's idea of beauty is extreme and without
workplace health and safety standards, models will continue to
be forced to sacrifice their health for their careers."
Similarly, according to The Model Alliance:
"?[M]odels in the U.S. lack?basic workplace protections.
Strict rules that govern child actors' working hours and
provisions for tutors during professional commitments are not
applied to child models, who often work long hours and drop
out of school to make the most of their earning ability during
their teenage years. Many models lack affordable health care,
which is particularly troubling considering the psychological
and health costs on models who anxiously struggle to control
their bodies over short-lived careers and are isolated by
their frenetic and nomadic lifestyles?
?We cannot promote healthy images without taking steps to
promote healthy bodies and minds, and that starts with giving
the faces of this business a unified voice?Correcting these
abuses starts with seeing models through a different lens: not
as dehumanized images, but as workers who deserve the same
rights and protections as anyone else."<1>
--------------------------
<1> http://modelalliance.org/introductory-note
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Therefore, the author states that the goal of this bill is to
develop workplace health and safety standards to protect models.
In addition, the bill is designed not only protect the health
of the workers themselves, but also that of young people who try
to emulate and aspire to be models.
Health Consequences and Models
In recent years, there has been "widespread concern that the
fashion industry, by promulgating ever-diminishing extremes of
thinness, is creating a 'toxic' environment in which eating
disorders flourish."<2>
A recent article in the British Journal of Psychiatry summarized
some of the concerns as follows:
"The current fashion for extreme thinness among models
unnecessarily puts their physical and psychological health in
jeopardy. Starvation disrupts growth and reproductive
function and can have profound and persistent effects on brain
development. These risks are particularly profound in young
women who, in a binge-priming environment, may be more prone
to develop other addictive behaviours. Along with an
increased risk of substance and alcohol use and misuse, the
risk of developing an eating disorder will also be increased.
The longer-term health implications on models' bone and
reproductive health are unknown but evidence suggests the
outcomes are not promising."<3>
--------------------------
<2> Janet L. Treasure, Elizabeth R. Wack and Marion E. Roberts.
"Models as a high-risk group: the health implications of a size
zero culture." British Journal of Psychiatry (2008):
192(4):243-244.
<3> Id.
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According to an online survey<4> of 85 fashion models conducted
by The Model Alliance, 31.2 percent of the surveyed models
reported having eating disorders, and 64.1 percent reported
having been asked to lose weight. Nearly half of the surveyed
models reported doing "fasts," cleanses or other efforts to
restrict their food intake over a short period of time in order
to lose weight.
In addition, due to the fact that many models are considered to
be independent contractors rather than employees (whether or not
they are in fact properly classified), nearly 30 percent of the
surveyed models reported that they lacked health insurance.
Beyond the Catwalk - Possible Societal Implications of Modeling
Concern has also been expressed that extreme thinness in fashion
models impacts not only the models themselves, but also has
larger societal implications - particularly for adolescent
girls.
The National Association of Anorexia Nervosa and Associated
Disorders reports that the media and model images have a
tremendous influence on young people. Specifically, they
cite<5> evidence that:
The body type portrayed in advertising as the ideal is
possessed naturally by only 5 percent of American females.
47 percent of girls in 5th through 12th grade reported
wanting to lose weight because of magazine pictures.
--------------------------
<4> http://modelalliance.org/industry-analysis
<5>
http://www.anad.org/get-information/about-eating-disorders/eating
-disorders-statistics/
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69 percent of girls in 5th through 12th grade reported
that magazine pictures influenced their idea of a perfect
body shape.
42 percent of 1st through 3rd grade girls want to be
thinner.
81 percent of 10 year olds are afraid of being
overweight.
Recent Efforts in Other Countries
The author states that this bill is part of a growing global
movement to address worries about models' workplace safety and
related public health concerns. For example:
In 2006, organizers of Madrid Fashion Week became the
first to implement a code of conduct to ban models deemed
underweight according to their body mass index (BMI), a
ratio of weight to height. Italy followed suit shortly
thereafter, requiring models to provide a certificate of
health before they can work the runway.
In 2013, Israel went a step further by adopting
legislation stipulating that fashion and commercial models
must meet minimum BMI requirements.
Most recently, in 2015, France's National Assembly
passed a law that requires models to have a medical
certificate deeming them fit to work.
Provisions Proposed by this Bill
In general, this bill proposes to enact three main provisions
related to models and modeling. First, this bill prohibits a
person from engaging in or carrying on the occupation of a
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modeling agency without first procuring a license under existing
law related to talent agencies. Second, this bill provides that
a model shall be classified as an employee of the person for
whom the model's services are directly provided. Third, this
bill requires the OSHA Standards Board to adopt an occupational
safety and health standard for models, as specified.
Requiring Modeling Agencies to be Licensed Talent Agencies
Since 1959, California law has regulated "talent agencies" by,
among other things, requiring the licensure of such agencies
with the Labor Commissioner. This statute has largely been
referred to as the Talent Agents Act (TAA).
Existing law defines a "talent agency" as a person or
corporation who engages in the occupation of procuring,
offering, promising, or attempting to procure employment or
engagements for an artist or artists. Talent agencies may, in
addition, counsel or direct artists in the development of their
professional careers. (Labor Code Section 1700.4(a)).
Existing law defines an "artist" to mean actors and actresses
rendering services on the legitimate stage and in the production
of motion pictures, radio artists, musical artists, musical
organizations, directors of legitimate stage, motion picture and
radio productions, musical directors, writers, cinematographers,
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composers, lyricists, arrangers, models, and other artists and
persons rendering professional services in motion picture,
theatrical, radio, television and other entertainment
enterprises. (Labor Code Section 1700.4(b)).
In general, a talent agency does not charge an up-front fee but
instead procures employment for an artist and then charges a
commission fee or similar compensation. However, prior to 1999,
California law did not regulate persons engaged in the
solicitation of advance-fee payments from an artist prior to
employment being secured. At the time, concerns were expressed
that unscrupulous individuals were posing as talent agents or
talent managers and were requesting large payments in exchange
for promises of employment that they could never deliver.
That changed with the enactment of AB 884 (Kuehl), Chapter 626,
Statutes of 1999. Among other things, AB 884 required a
contract between an advance-fee talent service and an artist to
be in writing and to contain specified provisions, including a
right to cancel the contract and to receive a refund, as
specified. The bill also required an advance-fee talent service
to file a bond or deposit in the amount of $10,000 with the
Labor Commissioner. Subsequent legislation, AB 2860 (Kuehl),
Chapter 878, Statutes of 2000, corrected a drafting error to
narrow the law to avoid regulating individuals who served merely
as photographers, costume designers, drama coaches or in similar
occupations but not engaging in advance-fee talent services. In
2005, legislation was enacted to close an alleged loophole in
which unscrupulous individuals were finding a way around the law
by continuing to charge up-front fees for photographs or
"casting kits" while indicating that these services will lead to
employment. That measure was enacted as SB 1687 (Murray)
Chapter 2008, Statutes of 2004. The advanced-fee talent
services provisions were further revised and recast under AB
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1319 (Krekorian), Chapter 286, Statutes of 2009.
The supporters of this bill argue that many (but not all)
modeling agencies are already licensed as talent agencies under
existing law, affording models the protections that apply to
talent agencies, such as registration with the Labor
Commissioner and other requirements. This bill would prohibit a
person from engaging in or carrying on the occupation of a
modeling agency without first procuring a license under the
existing law related to talent agencies.
Employment Status and Misclassification
Employee misclassification has become a serious problem in the
United States, and particularly in California. When companies
misclassify workers as independent contractors instead of as
employees, these workers do not receive worker protections,
including minimum wages, overtime pay, and other protection to
which they would otherwise be entitled. Additionally,
businesses do not deduct taxes, 401(k), Social Security, or
Medicare payments from the paychecks of independent contractors,
which results in a loss of state tax income from the businesses
as well as a potential loss of income from the individual worker
who may not properly report income. Because employers do not
pay unemployment taxes for independent contractors, workers who
are misclassified cannot obtain unemployment benefits if they
lose their jobs.
A number of reports in the last several years have chronicled
the societal consequences of and impacts upon American workers
of misclassification of workers as independent contractors
versus employees. The United States Government Accountability
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Office conducted a study of misclassification of workers as
independent contractors and found that employee
misclassification cost the United States government $2.72
billion in revenue from Social Security, unemployment and income
taxes in 2006 alone. (GAO, Employee Misclassifications:
Improved Outreach Could Help Ensure Proper Worker
Classification, GAO-07-859T (May 8, 2007), pg. 1.)
Similarly, in California EDD reported that the number of
misclassified employees increased 54 percent from 2005 to 2007,
reaching 15,751 workers in 2007. During this 3-year period, the
EDD recovered a total of $111,956,556 in payroll tax
assessments, $18,537,894 in labor code citations, and
$40,348,667 in assessments on employment tax fraud cases. (See
California Employment Development Department, Annual Report:
Fraud Deterrence and Detection Activities, report to the
California Legislature (June 2008)) A Daily Journal article
reported on the recent increase in worker misclassification and
one person interviewed for the article noted that worker
misclassification is attractive to employers because they can
cut their labor costs by up to 30 percent by moving to an
independent contractor model. (Ho, Independent Contractor
Status Raises IRS Eyebrows: Contractor Status is Cheaper for
Employers; Some Workers are Crying Foul, Daily Journal (May 17,
2010).)
These concerns led to the passage of SB 459 (Corbett) from 2011,
which established significant civil penalties for the
intentional misclassification
"Statutory Employees" and Previous Legislation
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In general, most individuals are determined to be employees
under common law, which involves evaluating a number of specific
factors. However, a "statutory employee" is defined as an
employee by law under a specific statute.
For example, Unemployment Insurance Code Section 621 deems
certain groups of workers to be employees for purposes of
certain employment tax purposes. These "statutory employees"
include corporate officers, specified agent/commission drivers,
traveling salespersons, certain home workers, and certain
artists and authors.
AB 950 (John A. Pérez) of 2011 would have deemed port drayage
drivers to be employees for employment law purposes. AB 950 was
moved to the Inactive File on the Assembly floor.
AB 202 (Gonzalez) from 2015 provided that specified professional
sports "cheerleaders" shall be deemed to be employees for state
employment law purposes.
As stated above, this bill would provide that a model shall be
classified as an employee of the person for whom the model's
services are directly provided. Although the facts of a given
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case can vary, supporters of this bill cite to case law such as
Zaremba v. Miller, 113 Cal. App. 3d Supp. 1 (1980), which found
that the relationship of employer-employee existed between a
model and a photographer.
In addition, a 2006 California Supreme Court case involved a
model who worked on a job assignment that lasted only one day.
Smith v. L'Oreal, 39 Cal. 4th 77 (2006). In that case, the
model performed work as a "hair model" at a show featuring
L'Oreal products and a hair stylist. The model sat on stage in
front of an audience as her hair was colored and styled, and
then walked the runway a few times. After the show, the
defendant did not pay the model the $500 in wages it owed her,
but waited over two months to do so. The court concluded that
an employee who worked on a job assignment of short duration was
not excluded from the provisions of existing law that require
payment of wages immediately upon discharge from employment, and
that this occurs either when an employee is involuntarily
terminated from an ongoing employment relationship or when an
employee is released after completing the specific job
assignment or time duration for which the employee was hired.
OSHA Standard
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As discussed above, particular concern has been expressed
regarding various health and safety issues involving models and
modeling. Therefore, this bill would require the OSHA Standards
Board, in consultation with accredited specialists in the
prevention and treatment of eating disorders, to adopt an
occupational safety and health standard for models. The bill
specifies that the standard shall address issues including, but
not limited to (1) protection of the model's rights to health
care privacy under federal law and all other provisions of law,
(2) workplace safety, especially for minors, including
protection from sexual exploitation and sexual predators, and
(3) prevention and treatment of eating disorders.
Arguments in Support
Supporters of this bill, including The Model Alliance, argue
that this bill would address numerous labor, health and safety
issues faced by fashion models in California.
They contend that most professional models are young women who
begin their careers as adolescents and work in a largely
unregulated industry. Models routinely face pressures including
nudity, sexual demands, starvation dieting and difficulty
getting paid monies owed. These abuses they suffer may have
long-lasting repercussions on their health and wellbeing.
Many models experience pressures to be unhealthily thin. Models
have reported becoming sick and some have even died from
complications due to anorexia-in one case, just after stepping
off a runway.
They argue that lack of financial transparency and resulting
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wage theft is a widespread problem in the modeling industry.
Most models have low bargaining power and are frequently not
paid all of their earned wages, are paid wages late, are paid
only after complaining about non-payment, are paid in "trade,"
meaning clothes, or are simply not paid at all.
The labor abuses in the modeling industry are as common as they
are difficult for models to report without risking their job.
Like fashion itself, the modeling industry moves in short cycles
and there is a huge reservoir of fresh talent, which leaves
models feeling easily replaceable. They argue that ensuring
that modeling agencies are licensed and regulated as talent
agencies would increase the level of financial transparency and
accountability in the modeling industry and protect models from
sexual and financial exploitation. In addition, models deserve
protection necessary for a safe and healthy work environment.
The National Eating Disorders Association states that eating
disorders affect nearly 30 million Americans at some time in
their lives. They are highly complex, serious mental health
conditions which impact every organ system in the body, and have
the highest mortality rate of any mental illness. Once an
eating disorder takes hold, it is very difficult to reverse.
The physical, emotional, and financial toll these illnesses take
on families can be devastating. They state that eating
disorders are widespread in the fashion industry - a
high-pressure business that relies on the labor of young models.
These are devastating illnesses that are too often dismissed or
overlooked. This legislation not only aims to set
desperately-needed health standards for the modeling industry,
it quite literally has the power to save lives.
The California Labor Federation, AFL-CIO argues that this bill
seeks to ensure that models have effective health and safety
protections under the law by requiring that all modeling
agencies be licensed with the Labor Commissioner and clarifying
that models are statutory employees. These provisions will help
ensure that models are covered and protected by existing and
proposed health and safety standards. They also note that the
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under the process for a proposed health and safety standard for
models, employers, workers, and other experts will come together
to discuss the specifics of these standards and draft a clear
regulatory framework that reflects the best available medical
evidence and will, once in effect, keep workers safe from the
ravages of sexual exploitation, eating disorders, and other
health and safety concerns that may arise during the advisory
committee process.
Arguments in Opposition
Opponents, including the Association of Talent Agents (ATA)
argue that this bill creates major disruption and legal
confusion for state licensed talent agencies, doesn't resolve
the real issue, and is unworkable.
First, ATA notes that the definition of "model" in this bill
includes the name and likeness of the model. They contend that
this is beyond the scope of artists' services contained in the
TAA and causes confusion.
Second, they argue that the bill is redundant because it seeks
to require what is already required - that modeling agencies
engaged in the occupation of procuring or attempting to procure
employment for "artists" services (including models) be licensed
by the Labor Commissioner. They state that the Labor
Commissioner has issued countless rulings on the fact that
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models are artists covered under the (TAA), and that therefore
the bill serves no discernable purpose.
Third, ATA opposes the provision of the bill that statutorily
mandates that models shall be employees. They argue that the
law is clear that the classification of a worker as either an
employee or an independent contractor depends, among other
things, on the circumstances of the work performed and the
degree of control over the worker. Because the bill requires
models to be classified as employees in every case regardless of
the circumstances of the particular job, ATA argues that it
conflicts with well-established law, does not reflect the
realities of the work environment and unfairly prejudices models
(and other artists) who exhibit control over their work and
structure their business as independent contractors.
ATA also opposes the proposed development of an OSHA workplace
health and safety standard for models, as provided for in this
bill, stating: "The bill provides no definition for what
constitutes 'healthy' and encourages possible discrimination
against artists with disabilities if their condition falls
outside of definition of healthy. The bill also discourages
diversity among body shapes within the industry, with respect to
both slender and plus-size models. To the extent the purpose of
the bill is to make 'media images more healthful', the bill
impermissibly restricts freedom of expression." In addition,
ATA expresses concern that the development of such a standard
would impose duties upon the modeling agencies, such as making
sure that each model it represents has met the standard and is
healthy to perform modeling services.
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Finally, ATA objects to the provision of the bill that excludes
certain employees covered under IWC Wage Order 11 (regulating
the broadcasting industry) or IWC Wage Order 12 (regulating the
motion picture industry). They state that this causes an
untenable and impossible-to-comply- with regulatory system. The
models and modeling agencies work in all areas of the
entertainment business. To mandate completely different
standards for the same model and the same modeling agency when
rendering the same services for different platforms cannot work.
ATA concludes that they and their member companies are committed
to promoting the health and well-being of all artists. While
they appreciate the intent of the bill, they claim that it is
unworkable.
REGISTERED SUPPORT / OPPOSITION:
Support
Academy for Eating Disorders
California Labor Federation, AFL-CIO
Eating Disorder Hope
Eating Disorder Therapy LA
Multi-Service Eating Disorder Association
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National Eating Disorders Association
Numerous Individuals
Schroder Davis PLC
Strategic Training Initiative for the Prevention of Eating
Disorders
The Model Alliance
Opposition
Alvarado Rey Agency
Angel City Talent
Association of Talent Agents
BBA Talent
CESD Talent Agency
Clear Talent Group
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Commercial Talent
Don Buchwald & Associates Inc.
Go 2 Talent Agency
Maverick Artists Agency, Inc.
Nous Model Management
Rebel Entertainment Partners, Inc.
Sports Unlimited Talent Agency
The Corsa Agency
Analysis Prepared by:Eva Lieu/Ben Ebbink / L. & E. / (916)
319-2091
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