Florida Senate - 2012 SB 308
By Senator Joyner
18-00040-12 2012308__
1 A bill to be entitled
2 An act relating to employment of children by the
3 entertainment industry; amending s. 450.132, F.S.;
4 defining terms; providing requirements for the
5 employment of children in the entertainment industry;
6 providing responsibilities of employers and parents or
7 legal guardians of such children; requiring a
8 preauthorization certificate for each child; providing
9 duties of the Division of Regulation within the
10 Department of Business and Professional Regulation;
11 providing limitations on the working hours of child
12 performers; providing certification requirements and
13 duties of teachers of child performers; requiring a
14 trust account for certain children employed in the
15 entertainment industry; providing safety requirements
16 for child performers; providing criteria for wage
17 claims; providing requirements for the Department of
18 Economic Opportunity in resolving such claims;
19 providing grounds under which the Division of
20 Regulation may refuse to issue or renew a
21 preauthorization certificate and procedures for
22 challenging such a determination; reenacting ss.
23 450.021(1)(b) and 562.13(2)(b), F.S., relating to the
24 employment of minors in this state, to incorporate the
25 amendments made to s. 450.132, F.S., in references
26 thereto; providing an effective date.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
30 Section 1. Section 450.132, Florida Statutes, is amended to
31 read:
32 (Substantial rewording of section. See
33 s. 450.132, F.S., for present text.)
34 450.132 Employment of children by the entertainment
35 industry; rules; procedures; trust accounts.—
36 (1) DEFINITIONS.—As used in this section, the term:
37 (a) “Certified teacher” means any person who holds a valid
38 and current Florida teaching certificate issued by the
39 Department of Education or its equivalent issued by any state,
40 territory, possession, or other jurisdiction of the United
41 States.
42 (b) “Child” or “minor” has the same meaning as in s.
43 450.012.
44 (c) “Child performer” means a child employed to act or
45 otherwise participate in the performing arts, including, but not
46 limited to, motion pictures, theatrical productions, radio, or
47 television products.
48 (d) “Department” means the Department of Economic
49 Opportunity.
50 (e) “Division” means the Division of Regulation within the
51 Department of Business and Professional Regulation.
52 (f) “Employ” includes suffer or permit to work.
53 (g) “Employee” means a person whose work is controlled by
54 an employer as to how and when to perform the task.
55 (h) “Entertainment industry” has the same meaning as in s.
56 450.012.
57 (i) “Hazardous condition” means, but is not limited to,
58 special effects that could potentially be physically dangerous
59 to the child performer.
60 (j) “Legal guardian” means a person appointed as a guardian
61 by a court.
62 (k) “Place of employment,” including the “movie set,”
63 “worksite,” “set,” and “location,” means the actual location in
64 this state where a person provides his or her services, whether
65 paid or unpaid, as a performer.
66 (l) “Safety” means the condition of being protected from
67 any situation that is detrimental to the child’s health and
68 well-being.
69 (m) “Wage claim” means a document signed by the attorney
70 for a child performer giving the department authority to
71 investigate a complaint of unpaid wages.
72 (n) “Wages” means all amounts at which the labor or service
73 rendered is paid, whether the amount is fixed or on a time,
74 task, piece, or commission basis.
75 (2) EMPLOYMENT OF CHILDREN IN THE ENTERTAINMENT INDUSTRY.—
76 (a) Any person who employs a child performer in the
77 entertainment industry must obtain a preauthorization
78 certificate issued by the division before the start of work. The
79 preauthorization certificate must include the project name; the
80 estimated dates and length of the project; the employer’s name
81 and Florida address; contact information for at least three
82 individuals, including name, address, and telephone numbers; and
83 the child performer’s information, including name, address, date
84 of birth, where the child is registered to attend school, grade
85 level of the child, special educational needs, anticipated
86 length of employment on the project, nature of work on the
87 project, and a list of any possible exposure to potentially
88 hazardous conditions, materials, or substances. A signature is
89 required from the employer certifying compliance with all
90 requirements of the preauthorization certificate.
91 (b) A preauthorization certificate for a child performer
92 may be issued only by the division.
93 (c)1. Before issuing a preauthorization certificate, the
94 employer shall provide to the division a certification of
95 teaching compliance for each certified teacher employed to teach
96 the child performer. The certificate of teaching compliance must
97 state the certified teacher’s appropriate teaching credentials
98 to teach grade levels kindergarten through 12 or to teach the
99 level of education required for the child performer at the place
100 of employment.
101 2. The employer must provide to the division a written
102 criminal history check for all certified teachers on the movie
103 set or at the place of employment. It is the responsibility of
104 the employer, parent, legal guardian, and certified teacher to
105 report any arrest or conviction record and any other information
106 that may present a possible danger to the health, safety, or
107 well-being of the child performer.
108 (d) It is the responsibility of the employer to obtain a
109 child performer preauthorization certificate before the
110 employment begins. The employer must be able to provide a copy
111 at the worksite when requested to do so. The division shall
112 retain a copy of the preauthorization certificate.
113 (e) The child performer preauthorization certificate is
114 valid for 1 year after the date it is issued or until the
115 specific project for which the child is employed by the employer
116 ceases, whichever occurs first.
117 (f) A signature is required from the child performer if the
118 child is 14 years of age or older.
119 (g) A preauthorization certificate may not be given or
120 issued without the signature of a parent or legal guardian
121 indicating his or her permission for his or her child to work on
122 a specific project. A parent or legal guardian must be within
123 eyesight and earshot of the child performer at all times other
124 than the time periods in which the child is with a certified
125 teacher when the teacher is teaching school.
126 (h) The parent or legal guardian of the child performer may
127 contact the division to renew the preauthorization certificate
128 30 days before its expiration.
129 (i)1. It is the responsibility of the employer to provide a
130 certified trainer or technician who is accredited by an
131 occupational safety and health program administered by the
132 United States Department of Labor and who is at the place of
133 employment at all times when a child performer may be exposed to
134 a potentially hazardous condition.
135 2. The employer must provide to the division a written
136 criminal history check for all certified trainers and
137 technicians on the movie set. It is the responsibility of the
138 employer, parent, legal guardian, and certified trainer or
139 technician to report any arrest or conviction record and any
140 other information that may present a possible danger to the
141 health, safety, or well-being of the child performer.
142 (3) LIMITATIONS ON CHILD PERFORMERS’ WORKING HOURS,
143 INCLUDING SCHOOL TIME.—
144 (a) All child performers who are at least 6 years of age
145 but younger than 18 years of age must be provided with a
146 certified teacher for each group of 10 or fewer child performers
147 when school is in session.
148 (b) A child performer may not begin work before 5 a.m. or
149 continue work after 10 p.m. on evenings preceding a school day.
150 A child performer may not work later than midnight on a day
151 preceding a nonschool day. The time that a child performer may
152 be permitted at the place of employment may be extended by one
153 half hour for a meal period.
154 (c)1. An infant who is at least 15 days of age but younger
155 than 7 months of age may not be employed as a child performer
156 unless a physician, who is a board-certified pediatrician,
157 provides a written certification that the infant is physically
158 capable of handling the stress of filmmaking. With the
159 physician’s approval, the infant performer may be at the place
160 of employment a maximum of 2 hours and may not work more than 20
161 minutes. Infants may work up to 2 cumulative hours in any 24
162 hour period.
163 2. A child performer who is at least 7 months of age but
164 younger than 3 years of age may be at the place of employment
165 for up to 4 hours and may work up to 2 hours. The remaining time
166 must be reserved for the child performer’s rest and recreation.
167 3. A child performer who is at least 3 years of age but
168 younger than 6 years of age may be at the place of employment
169 for up to 6 hours and may work up to 3 hours. The remaining time
170 must be reserved for the child performer’s rest and recreation.
171 (d)1. When school is in session, each child performer who
172 is at least 6 years of age but younger than 9 years of age may
173 be at the place of employment for up to 8 hours, for the sum of
174 4 hours of work, 3 hours of school, and 1 hour of rest and
175 recreation. If school is not in session, work time may be
176 increased up to 6 hours, with the remaining time reserved for
177 the child performer’s rest and recreation.
178 2. When school is in session, each child performer who is
179 at least 9 years of age but younger than 16 years of age may be
180 at the place of employment for up to 9 hours, for the sum of 5
181 hours of work, 3 hours of school, and 1 hour of rest and
182 recreation. If school is not in session, work time may be
183 increased up to 7 hours, with the remaining time reserved for
184 the child performer’s rest and recreation.
185 3. When school is in session, a child performer who is at
186 least 16 years of age but younger than 18 years of age may be at
187 the place of employment for up to 10 hours, for the sum of 6
188 hours of work, 3 hours of school, and 1 hour of rest and
189 recreation. If school is not in session, work time may be
190 increased up to 8 hours, with the remaining time reserved for
191 the child performer’s rest and recreation.
192 (e) In exceptional circumstances due to unusual performance
193 requirements, the division may grant a temporary waiver of the
194 mandatory hours and start-to-finish times. The waiver must be
195 granted before the performances of the work that is the subject
196 of the waiver. The division may grant a waiver only under the
197 following circumstances:
198 1. Written notification is provided which includes a list
199 of specific dates and times that the child performer will be
200 employed or present at the place of employment.
201 2. Written acknowledgement is provided that the child
202 performer’s parent or legal guardian has been fully informed of
203 the circumstances and has granted advance consent.
204 (f) The child performer must be provided with a 12-hour
205 rest and recreation break at the end of each workday.
206 (g) All time spent traveling from a studio to a location or
207 from a location to a studio counts as part of the child’s
208 workday. When a child is with a company on a location that is
209 sufficiently distant and requires an overnight stay, and the
210 child is required to travel daily between the living quarters
211 and the place where the company is actually working, the time
212 the child spends traveling does not count as work time if the
213 company does not spend more than 45 minutes traveling each way
214 and furnishes the necessary transportation.
215 (4) CERTIFICATION AND DUTIES OF CERTIFIED TEACHERS.—
216 (a) A certified teacher of a child performer who attends a
217 public school must possess a valid and current teaching
218 certificate issued by the Department of Education. A certified
219 teacher of a child performer who attends a private school or of
220 a nonresident child performer must possess a valid and current
221 teaching certificate from another state, territory, possession,
222 or other jurisdiction of the United States to teach grade levels
223 kindergarten through 12 or to teach the level of education
224 required for the child performer at the place of employment.
225 (b) A certified teacher has, in addition to teaching and in
226 conjunction with the parent or legal guardian, the
227 responsibility of monitoring and protecting the health, safety,
228 and well-being of each child performer who the teacher has been
229 hired to teach during the time that the teacher is required to
230 be present.
231 (c) The certified teacher, parent, or legal guardian may
232 refuse to allow the engagement of the child performer at the
233 place of employment. Any party may report to the division
234 conditions threatening the health, safety, or well-being of the
235 child performer. It is the ultimate responsibility of the parent
236 or legal guardian to ensure that the safety, health, and well
237 being of the child are being protected. A certified teacher
238 shall be present during the time reserved for school, except
239 that a child performer younger than 16 years of age does not
240 require the presence of a certified teacher for up to 1 hour for
241 wardrobe, makeup, hairdressing, promotional publicity, personal
242 appearances, or audio recording if these activities are not
243 located on the actual site of filming or at the theatre, or if
244 school is not in session, and if the parent or legal guardian is
245 present within earshot or eyesight of the child performer.
246 (5) TRUST ACCOUNT FOR CHILD PERFORMERS.—
247 (a) Each time a child performer is employed in the
248 entertainment industry in this state under a contract in an
249 amount equal to or greater than $1,000, a trust account shall be
250 created for the child performer.
251 (b) The parent, legal guardian, or trustee is responsible
252 for establishing a trust account for the child performer in the
253 child performer’s state of residence for the sole benefit of the
254 child performer within 7 business days after the child
255 performer’s employment contract is signed. The child performer
256 may not have access to the trust account until the child
257 performer is 18 years of age or becomes legally emancipated.
258 (c) The parent, legal guardian, or trustee shall provide
259 the employer with a trustee statement within 15 days after the
260 start of employment. Upon receiving the trustee statement, the
261 employer shall provide the parent, legal guardian, or trustee
262 with a written acknowledgement of receipt.
263 (d) If the trustee statement is not provided to the
264 employer within 90 days after the start of employment, the
265 employer shall refer the matter to the circuit court. The
266 circuit court shall have continuing jurisdiction over the trust
267 account.
268 (e) The employer shall deposit not less than 15 percent of
269 the child performer’s gross earnings directly into the child
270 performer’s trust account within 15 business days after the
271 child has performed. If the account is not established, the
272 employer shall withhold 15 percent of the gross income until a
273 trust account is established or until the court orders
274 otherwise. After the employer deposits 15 percent of the gross
275 earnings in the trust account, the employer shall have no
276 further obligation to monitor the funds.
277 (f) After the funds are deposited in the trust account,
278 only the trustee is obligated to monitor and account for the
279 funds.
280 (6) SAFETY REQUIREMENTS FOR CHILD PERFORMERS.—
281 (a) A dressing room may not be occupied simultaneously by a
282 child and an adult performer or by children of the opposite sex.
283 (b) It is the responsibility of the employer to provide a
284 safe, secure shelter for child performers 17 years of age or
285 younger to rest when required to be at the place of employment
286 during nonperformance times.
287 (c) An employer may not cause, induce, entice, or permit a
288 child performer to engage in or be used for sexually exploitive
289 material for the purpose of producing a performance. A child
290 performer may not be depicted in any media as appearing to
291 participate in a sex act.
292 (7) WAGE CLAIMS.—
293 (a) A determination of which child performer may have an
294 attorney appointed in order to assist the child in filing a wage
295 claim shall be based on the child’s earnings. A child performer
296 earning less than one and one-half times the state’s average
297 weekly wages, as determined by the department, shall be
298 considered financially unable to employ an attorney.
299 (b) Wage claim forms must be completed in duplicate,
300 signed, and notarized.
301 (c) The department shall notify the affected employer of
302 any wage claim filed against him or her and allow at least 10
303 days for the employer to file a written response. If the
304 employer disputes the claim, his or her written response shall
305 be given to the child employee’s attorney, who shall be allowed
306 10 days in which to rebut the claim in writing.
307 (d) The department may schedule an administrative hearing
308 if, in its judgment, it would facilitate resolution of the
309 complaint. The conduct of the hearing is not governed by the
310 Administrative Procedures Act, but rather by procedures
311 established by the department.
312 (e) The department may issue a subpoena duces tecum to
313 compel the production of records it believes are necessary for
314 the resolution of the complaint.
315 (f) The department may issue written findings whenever it
316 has sufficient evidence upon which to base its determination.
317 (g) The department may accept a notarized acknowledgment of
318 indebtedness from the employer if the department believes it is
319 the best way to resolve the complaint.
320 (h) The department may file complaints in any court in the
321 state in order to resolve wage disputes or correct violations
322 arising under this section.
323 (i) The department shall obtain a written assignment form
324 signed by the child performer or his or her attorney and
325 notarized before initiating any legal action in any court of any
326 jurisdiction after a thorough investigation and determination
327 that the claim is valid.
328 (j) The department may file a proof of claim on behalf of
329 any child performer in any United States bankruptcy court if a
330 child performer files a wage claim and if, in the department’s
331 judgment, it is appropriate for the resolution of the claim.
332 (8) NONISSUANCE OR NONRENEWAL OF PREAUTHORIZATION
333 CERTIFICATE; REDETERMINATION REQUEST AND PROCEDURES.—
334 (a) The division director may for cause refuse to issue or
335 renew a preauthorization certificate to any project that has
336 violated any provision of this section within a 2-year period.
337 (b) The director shall notify the employer within 10 days
338 after the dates requested of a nonissuance or nonrenewal of a
339 preauthorization certificate.
340 (c) Any affected party may request a reconsideration of the
341 director’s actions, in writing, within 10 days.
342 (d) The director may schedule an administrative hearing if,
343 in his or her judgment, it would facilitate resolution of the
344 complaint. The conduct of the hearing is not governed by the
345 Administrative Procedures Act, but rather by procedures
346 established by the Department of Business and Professional
347 Regulation.
348 (e) The director may issue a subpoena duces tecum to compel
349 the production of records he or she believes are necessary for
350 the resolution of the complaint.
351 (f) The director may issue written findings whenever he or
352 she has sufficient evidence upon which to base his or her
353 determination.
354 Section 2. For the purpose of incorporating the amendments
355 made by this act to section 450.132, Florida Statutes, in a
356 reference thereto, paragraph (b) of subsection (1) of section
357 450.021, Florida Statutes, is reenacted to read:
358 450.021 Minimum age; general.—
359 (1) Minors of any age may be employed:
360 (b) By the entertainment industry as prescribed in ss.
361 450.012 and 450.132.
362 Section 3. For the purpose of incorporating the amendments
363 made by this act to section 450.132, Florida Statutes, in a
364 reference thereto, paragraph (b) of subsection (2) of section
365 562.13, Florida Statutes, is reenacted to read:
366 562.13 Employment of minors or certain other persons by
367 certain vendors prohibited; exceptions.—
368 (2) This section shall not apply to:
369 (b) Minors employed in the entertainment industry, as
370 defined by s. 450.012(5), who have either been granted a waiver
371 under s. 450.095 or employed under the terms of s. 450.132 or
372 under rules adopted pursuant to either of these sections.
373
374 However, a minor to whom this subsection otherwise applies may
375 not be employed if the employment, whether as a professional
376 entertainer or otherwise, involves nudity, as defined in s.
377 847.001, on the part of the minor and such nudity is intended as
378 a form of adult entertainment.
379 Section 4. This act shall take effect July 1, 2012.