BILL ANALYSIS �
AB 1393
Page 1
Date of Hearing: April 12, 2011
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS, TOURISM, AND
INTERNET MEDIA
Nora Campos, Chair
AB 1393 (Arts, Entertainment, Sports, Tourism, and Internet
Media Committee)
As Amended: April 7, 2011
SUBJECT : Employment: on-location filming permits
SUMMARY : Provides that any entity that issues permits for
on-location motion picture, television, or commercial production
may inform the Department of Industrial Relations (DIR) and the
Division of Labor Standards Enforcement (DLSE), whether children
will be employed at a particular production location.
Specifically, this bill :
1)Provides that a local agency or public entity that issues a
permit for on-location motion picture, television, or
commercial production may inform the DIR and the DLSE, upon
request, whether a child or children will be employed at a
particular production location.
2)Requires that the information released shall only be used by
DIR or DLSE for the purposes of enforcing provision of the
Labor Code relating to the employment of minors.
3)Provides that the information released may not be:
a) Used for any other purpose, or;
b) Further released by DIR or DLSE.
4)Provides that nothing in this section is intended to create a
duty upon a local agency or public entity that issues a permit
for on-location motion picture, television, or commercial
production permits to seek, obtain, or maintain information
regarding whether a child or children will be employed at a
particular production location.
5)Declares that no reimbursement is required by this act
pursuant to Section 6 of Article XIIIB of the California
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Constitution because a local agency or school district has the
authority to levy service charges, fees, or assessments
sufficient to pay for the program or level of service mandated
by this act, within the meaning of Government Code Section
17556.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement of Support :
According to the author, "The Labor Commissioner is charged with
the task of ensuring workplace safety - including enforcement
of the child labor laws designed to protect children in the
entertainment fields. However, due to the transient nature of
film production, those charged with protecting our working
children often have no idea where they are working. This
presents an obvious problem.
"Filming outside of a certified soundstage or studio backlot
requires a permit from the city, county and/or other local
jurisdiction. While Los Angeles has the vast majority of film
location shooting, issuing some 43,646 permits in 2010, dozens
of other local entities are also issuing permits across the
state. In addition to local permit authorities, the
California Film Commission also issues permits for filming on
state property. Last year, the total number of permits issued
for filming on state property was over 1,500.
"AB 1393 would solve the problem of the Labor Commissioner not
knowing where children are working, by simply allowing any
entity which issues location permits for filming, to disclose
whether minors will be working on the location; information
which is available through the existing requirement that
employers must have a permit to employ minors - and make this
information available to the Labor Commissioner, with proper
privacy safeguards."
2)State Law Provides the Only Workplace Protections For Child
Performers; California Does So Through DLSE, Work Permits and
Studio-Employed Teachers :
The federal Fair Labor Standards Act (FLSA) regulates the
employment of minors in the United States, but the FLSA
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provides an exception for "any child employed as an actor or
performer in motion pictures or theatrical productions, or in
radio or television productions." (29, U.S.C. Section 212, et
seq). This has been recognized by the federal authorities as
carving child performers out of FLSA, with the United States
Department of Labor explaining that minors employed as actors
or performers in motion pictures or theatrical productions or
in radio or television productions are exempt from the FLSA.
Therefore, FLSA rules regarding total allowable number of work
hours in one day and allowable times of day to work do not
apply.
Consequently, states have been left to adopt their own
policies for ensuring the safety of child performers. In
California, this function has fallen to the DLSE.
According to the DIR Web site, except in limited
circumstances, all minors less than 18 years of age employed
in the state of California must have a permit to work and
their employers must have a permit to employ minors.
Typically, after an employer agrees to hire a minor, the minor
obtains from his or her school a Department of Education form
entitles "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. Permits are required
even when the entertainment is non-commercial in nature.
(Labor Code Section 1308.5).
The Labor Code provides that employers must keep on file all
Permits to Employ and Work. Records must be open at all times
for inspection by school authorities and officers of the DLSE.
(Labor Code Section 1299; Education Code Sections 49161,
49164, and 49181).
Failure to produce Permits to Work or to Employ is prima facie
evidence of the illegal employment of minors, and subjects the
employer to a $500 fine on the first offense. (Labor Code
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Sections 1288 and 1304; Education Code Section 49181).
Employers of minors must keep for three years a record showing
the names, ages (dates of birth), and addresses of all minors
employed as well as time and payroll records required by the
applicable Industrial Welfare Commission Order. Employers
must furnish this information when requested. (Labor Code
Sections 1174 and 1175).
The day-to-day responsibility for the safety of child
performers under 16 years of age is placed upon the studio
teachers. 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.
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
studio teacher, conditions are such as to present a danger to
the health, safety, or morals of the minor. (8 CCR Section
11755.3).
3)Legislature Recently Created a Fund Expressly For Assuring
DLSE Enforcement Activities :
According to the DIR Web site, in 2009 the Legislature enacted
Labor Code Sections 62.5 and 62.6, which "created the Labor
Enforcement and Compliance Fund to provide a stable funding
source for the DLSE, which enforces minimum labor standards
and the statutory requirement to carry workers' compensation
insurance." The temporary fund shift is designed to offset
budget reductions. It comes under the broader Workers'
Compensation Premium Assessment, and is administered by the
Division of Workers' Compensation. In Fiscal Year 2009-10,
$15 million dollars went into the fund, and another $21.89
million is slated for Fiscal Year 2010-11.
The purpose of the fund is assuring continued DLSE enforcement
activities, even during bad budget times. "By creating a
stable funding source for DLSE and Division of Occupational
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Safety and Health (DOSH), employers are better served by these
divisions. The efforts of DOSH and DLSE assist law abiding
employers across the state and make their businesses stronger
by removing unfair competition and creating better work
environments for employees."
4)Recent Amendments Add Privacy Protections and Remove the Local
Mandate :
The introduced version of AB 1393 mandated that a local agency
or public entity that issues a permit for on-location motion
picture, television, or commercial production shall do both of
the following: inform DIR and DLSE, upon request, whether a
child or children will be employed at a particular film
production location, and include a field on the application
form for the applicant to declare whether it has or will seek
to obtain a permit to employ a minor in the entertainment
industry, as required under Labor Code Section 1308.5.
This language has been deleted, and replaced with permissive
language, which will instead allow the local agency or public
entity that issues a permit for on-location motion picture,
television, or commercial production to voluntarily inform the
DIR and DLSE, upon request, whether a child or children will
be employed at a particular film production location. In
addition, the bill provides, "Nothing in this section is
intended to create a duty upon a local agency or public entity
that issues a permit for on-location motion picture,
television, or commercial production permits to seek, obtain,
or maintain information regarding whether a child or children
will be employed at a particular production location."
The author has also added language to limit the use of the
information, in order to protect the privacy of the minor
performers involved, adding language which states that the
information released "shall only be used for purposes of
enforcing provision of this Part relating to employment of
minors, and may not be used for any other purpose, nor may the
information be further released by the DIR or DLSE."
5)Double Referral :
Should this bill pass this committee, it will be re-referred to
the Assembly Committee on Labor and Employment.
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REGISTERED SUPPORT / OPPOSITION :
Support
None known
Opposition
None known
Analysis Prepared by : Dana Mitchell / A.,E.,S.,T. & I.M. /
(916) 319-3450