BILL ANALYSIS
AB 2032
Page 1
Date of Hearing: April 6, 2010
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Mike Davis, Chair
AB 2032 (Davis) - As Introduced February 17, 2010
SUBJECT : Employment of minors: entertainment work permits
SUMMARY : Requires applicants for an Entertainment Work Permit
(EWP) for minors to pay a $50 dollar fee, and directs the Labor
Commissioner (LC) 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 LC an application and an application fee, which
shall be fifty dollars ($50), until January 1, 2012, after
which time the fee shall be set by the Labor Commissioner, but
shall not exceed fifty dollars ($50).
2)Creates an EWP Fund in the State Treasury.
3)Directs the LC to deposit the fee collected pursuant to # 1
above, into the EWP Fund.
4)Provides that, revenue in the EWP Fund shall be available to
the LC, upon appropriation by the Legislature, to pay for:
a) Issuing EWPs;
b) Enforcing the provisions of Labor Code Section 1308.5,
including making at least one unannounced site visit per
quarter to a randomly selected set or production facility
where one or more minors are working under EWPs; and,
c) Administering the EWP program, including developing and
enhancing an Internet Web site, developing and updating
informational materials, and providing training to studio
teachers regarding their role in enforcing the requirements
AB 2032
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of Labor Code Section 1308.5 and the regulations adopted
pursuant thereto.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's stated purpose : During the budget negotiations last
year, a proposal came forward to do away with the role the
California State Industrial Relations Division of Labor
Standards Enforcement (DLSE) plays 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 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 presentment 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
AB 2032
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must wait six months before the DLSE will issue another EWP.
However, there is not any method established in the DLSE for
tracking permits once issued. Therefore, this protection is
also illusory.
AB 2032 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. This bill will also have a provision to
require DLSE to make unannounced visits to the workplace of
child performers, in order to ascertain whether the
performer's paperwork is in order - adding a second level of
protection. Finally, AB 2032 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.
He points out that the fee is tax deductible.
2)Employment of minors: Entertainment Work Permit : 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 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 noncommercial 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.)
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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
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
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 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
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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 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 (see
comment number 2, 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 LC. Studio teacher are paid by the employer.
A studio teacher, in addition to teaching has 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 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
studio teacher, conditions are such as to present a danger to
the health, safety, or morals of the minor.
4)A similar bill, AB 402 (Davis) was vetoed last year; the
author responds : Last year, the Governor vetoed AB 402
(Davis), which was legislation very similar to this bill,
saying, "There have been previous proposals to move issuance
of EWPs to the local school districts which already issue work
permits. 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."
In response, the author offers his opinion that this bill does
not create new duties, as the DIR is already responsible for
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issuing EWPs, and is already responsible for child worker
safety in the work place. "AB 2032 simply provides DIR with a
funding stream to do the work they are charged with under
current law." The author also questions how schools can issue
work permits to preschool age children, as actors begin their
careers literally at birth; or whether overburdened schools
are best suited to issue EWPs to those child actors who attend
Charter schools, private schools, home schools, or reside in
other states. Finally, the author states that he is working
with the Governor's staff to address any lingering concerns
they may have.
5) Double-referral . Should this bill pass this committee, it
should be re-referred to the Assembly Committee on Labor and
Employment.
REGISTERED SUPPORT / OPPOSITION :
Support
Screen Actors Guild
Opposition
None on file
Analysis Prepared by : Dana Mitchell / A.,E.,S.,T. & I.M. /
(916) 319-3450