BILL ANALYSIS
AB 402
Page 1
Date of Hearing: March 31, 2009
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Mike Davis, Chair
AB 402 (Davis) - As Introduced: February 23, 2009
SUBJECT : Employment of minors: entertainment work permits.
SUMMARY : Requires applicants for an Entertainment Work Permit
(EWP) for minors to pay a $50 fee, and directs the Labor
Commissioner to collect and deposit the money into a special
fund in the State Treasury for their use to administer and
enforce EWPs for minors, as provided. Specifically, this bill :
1)Requires that an applicant for an EWP pursuant to Section
11753 of Title 8 of the California Code of Regulations to
submit to the Labor Commissioner an application and an
application fee of fifty dollars ($50).
2)Creates an Entertainment Work Permit Fund in the State
Treasury.
3)Directs the Labor Commissioner to deposit the fee collected
pursuant to #1 above, into the Entertainment Work Permit Fund.
4)Provides that, notwithstanding Government Code Section 13340,
the revenue in the Entertainment Work Permit Fund is
continuously appropriated to the Labor Commissioner to pay for
the costs of issuing entertainment work permits and for
enforcing the provisions of Labor Code Section 1308.5.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's stated purpose . According to the author, "During the
budget negotiations earlier this year, a proposal came forward
to do away with the role the California State Industrial
Relations Division of Labor Standards Enforcement (DLSE) plays
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in issuing EWPs for minors, as a cost saving measure. It was
thought that simply having a work permit, which are currently
issued by school officials, was sufficient protection for our
children working in the field of entertainment. While looking
into the issue of work permits for minors in the entertainment
field, it became clear that what we need is more protections
for our working children, not less.
"One of the most important protections we provide for our
working children is protection of their assets from misuse,
through a provision in law known as the Coogan Act. This Act
is named after the famous actor, Jackie Coogan, whose mother
and stepfather squandered over four million dollars that he
earned as a child television and movie star in the 1930's.
"While current law requires the DLSE to issue applicants a EWP
upon presentation of proof of school attendance, adequate
grades and health records, in order for the permit to be
accepted by an employer as valid, the EWP must have proof that
a Coogan Account exists for that child attached to it.
Without the Coogan Account, the permit expires in 10 days.
Surprisingly, no one from the state of California ever follows
up on this requirement. The entire state plan for protecting
the welfare of California's working child performers is
delegated to the employers. While I believe the studio
teachers are persons of integrity and great value, this
situation places them in a situation that appears to be a
conflict of interest. The state should provide minimal
oversight at the least, in order to adequately protect our
working children and prevent undue pressure on the Studio
Teachers to be 'production friendly.'
"Under the current statutory scheme, DLSE is supposed to help
enforce this important protection by mandating that a person
must wait six months before the DLSE will issue another
Entertainment Work Permit. However, there is not any method
established in the DLSE for tracking permits once issued.
Therefore, this protection is also illusory.
"This bill will remedy this situation, by requiring that DLSE
establish a method for tracking EWPs once issued. This will
prevent venue shopping by persons who have already received a
10 day work permit. AB 402 will also have a provision to
require DLSE to make unannounced visits to the workplace of
child performers, in order to ascertain whether the
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performer's paperwork is in order - adding a second level of
protection. Finally, this bill will provide a funding stream
to offset the costs of these protections, by adding a minimal
fee to the application for EWP, as other states have already
done.
2)Employment of minors: Work Permit and Entertainment Work
Permit (EWP) . Accoording 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 an EWP,
and employers must have a permit to employ, both permits being
issued by the Division of Labor Standards Enforcement. 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 entertainment work permit. 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 Division of Labor Standards Enforcement
(DLSE). (Labor Code Section 1308.5)
The Labor Code further provides in section 1308.9(a) that if
the Labor Commissioner 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
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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 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 Labor Commissioner to employ the same
minor under a contract described in Section 6750 of the Family
Code more than once in any six-month period. If written
consent is issued by the Labor Commissioner 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. [Labor Code Section 1309.9(b).]
3)Background: The Coogan Act is enforced by studio teachers
through EWP review . The Coogan law 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 - as the law of the time considered his
earnings to be his parents property. The Coogan law 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 turns 18 years of age or becomes
legally emancipated.
SB 1162 (Burton), Chapter 940, Statutes of 1999, overhauled
the Coogan law. Applicable to both court-approved and non
court-approved minors' contracts for creative or artistic
employment, SB 1162 required 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 imposed 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
years of age or becomes legally emancipated.
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To further strengthen enforcement of the Coogan law, the
Legislature adopted, and the Governor signed, SB 210 (Burton),
Chapter 667, Statutes of 2004, which added the requirement
that the Labor Commission'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, as
discussed above.
The enforcement of this system is 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 Labor Commissioner. Studio teachers are paid by the
employer (i.e. production company or studio).
A studio teacher, in addition to teaching has the
responsibility for caring and attending to the health, safety,
and morals of minors under sixteen (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 the minor in relation to the
minor's age, agility, strength, and stamina, and may refuse to
allow engagement of minor on set or location and may remove
the minor there from, if in judgment of studio teacher,
conditions are such as to present a danger to the health,
safety, or morals of the minor.
4)Entertainment Work Permit Fees in other jurisdictions .
According to the Screen Actors Guild, four states are
currently charging a fee for issuing EWPs. Two states, New
York and Massachusetts, charge production companies to employ
minors. New York has the highest rate, which is an initial
registration fee of $350 with a $200 renewal fee. However,
this permit is valid for up to 3 years. Massachusetts charges
$100, but their permit is only valid for a single production.
Nebraska and Wisconsin have a fee of $10, and $5 respectively,
which is paid by the actor. However, these fees are also
valid only for the duration of a single production. A
talented working actor may be in more than one production per
year, which could substantially affect the annual cost of work
permits issued in these states.
5)Double-referral : Should this bill pass this committee, it
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should be re-referred to the Assembly Committee on Labor and
Employment.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Dana Mitchell / A.,E.,S.,T. & I.M. /
(916) 319-3450