| 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 employment |
| 5 | of children in the entertainment industry; providing |
| 6 | responsibilities of employers and parents or legal |
| 7 | guardians of such children; requiring a preauthorization |
| 8 | certificate for each child; providing duties of the |
| 9 | Division of Regulation within the Department of Business |
| 10 | and Professional Regulation; providing limitations on the |
| 11 | working hours of child performers; providing certification |
| 12 | requirements and duties of teachers and trainers of child |
| 13 | performers; requiring a trust account for certain children |
| 14 | employed in the entertainment industry; providing safety |
| 15 | requirements for child performers; providing criteria for |
| 16 | wage claims; providing requirements for the Agency for |
| 17 | Workforce Innovation in resolving such claims; providing |
| 18 | grounds under which the Division of Regulation may refuse |
| 19 | to issue or renew a preauthorization certificate and |
| 20 | procedures for challenging such a determination; |
| 21 | reenacting ss. 450.021(1)(b) and 562.13(2)(b), F.S., |
| 22 | relating to the employment of minors in this state, to |
| 23 | incorporate the amendments made to s. 450.132, F.S., in |
| 24 | references thereto; providing an effective date. |
| 25 |
|
| 26 | Be It Enacted by the Legislature of the State of Florida: |
| 27 |
|
| 28 | Section 1. Section 450.132, Florida Statutes, is amended |
| 29 | to read: |
| 30 | (Substantial rewording of section. See |
| 31 | s. 450.132, F.S., for present text.) |
| 32 | 450.132 Employment of children by the entertainment |
| 33 | industry; rules; procedures; trust accounts.- |
| 34 | (1) DEFINITIONS.-As used in this section, the term: |
| 35 | (a) "Agency" means the Agency for Workforce Innovation. |
| 36 | (b) "Certified teacher" means any person who holds a valid |
| 37 | and current Florida teaching certificate issued by the |
| 38 | Department of Education or its equivalent issued by any state, |
| 39 | territory, possession, or other jurisdiction of the United |
| 40 | States. |
| 41 | (c) "Child" or "minor" has the same meaning as in s. |
| 42 | 450.012. |
| 43 | (d) "Child performer" means a child employed to act or |
| 44 | otherwise participate in the performing arts, including, but not |
| 45 | limited to, motion pictures, theatrical, radio, or television |
| 46 | products. |
| 47 | (e) "Division" means the Division of Regulation within the |
| 48 | Department of Business and Professional Regulation. |
| 49 | (f) "Employ" includes suffer or permit to work. |
| 50 | (g) "Employee" means a person whose work is controlled by |
| 51 | an employer as to how and when to perform the task. |
| 52 | (h) "Entertainment industry" has the same meaning as in s. |
| 53 | 450.012. |
| 54 | (i) "Hazardous condition" means, but is not limited to, |
| 55 | special effects that could potentially be physically dangerous |
| 56 | to the child performer. |
| 57 | (j) "Legal guardian" means a person appointed as a |
| 58 | guardian by a court. |
| 59 | (k) "Place of employment," including the "movie set," |
| 60 | "worksite," "set," and "location," means the actual location in |
| 61 | this state where a person provides his or her services, whether |
| 62 | paid or unpaid, as a performer. |
| 63 | (l) "Safety" means the condition of being protected from |
| 64 | any situation that is detrimental to the child's health and |
| 65 | well-being. |
| 66 | (m) "Wage claim" means a document signed by the attorney |
| 67 | for a child performer giving the Agency for Workforce Innovation |
| 68 | authority to investigate a complaint of unpaid wages. |
| 69 | (n) "Wages" means all amounts at which the labor or |
| 70 | service rendered is paid, whether the amount is fixed or on a |
| 71 | time, task, piece, or commission basis. |
| 72 | (2) EMPLOYMENT OF CHILDREN IN THE ENTERTAINMENT INDUSTRY.- |
| 73 | (a) Any person who employs a child performer in the |
| 74 | entertainment industry must obtain a preauthorization |
| 75 | certificate issued by the division before the start of work. The |
| 76 | preauthorization certificate must include the project name; the |
| 77 | estimated dates and length of the project; the employer's name |
| 78 | and Florida address; contact information for at least three |
| 79 | individuals, including name, address, and telephone numbers; and |
| 80 | the child performer's information, including name, address, date |
| 81 | of birth, where the child is registered to attend school, grade |
| 82 | level of the child, special educational needs, anticipated |
| 83 | length of employment on the project, nature of work on the |
| 84 | project, and a list of any possible exposure to potentially |
| 85 | hazardous materials or substances. A signature is required from |
| 86 | the employer certifying compliance with all requirements of the |
| 87 | preauthorization certificate. |
| 88 | (b) A preauthorization certificate for a child performer |
| 89 | may be issued only by the division. |
| 90 | (c)1. Before issuing a preauthorization certificate, the |
| 91 | employer shall provide to the division a certification of |
| 92 | teaching compliance for each certified teacher employed to teach |
| 93 | the child performer. The certificate of teaching compliance must |
| 94 | state the certified teacher's appropriate teaching credentials |
| 95 | to teach grade levels kindergarten through 12 or to teach the |
| 96 | level of education required for the child performer at the place |
| 97 | of employment. |
| 98 | 2. The employer must provide to the division a written |
| 99 | criminal history check on all certified teachers on the movie |
| 100 | set or at the place of employment. It is the responsibility of |
| 101 | the employer, parent, legal guardian, and certified teacher to |
| 102 | report any arrest or conviction record and any other information |
| 103 | that may present a possible danger to the health, safety, or |
| 104 | well-being of the child performer. |
| 105 | (d) It is the responsibility of the employer to obtain a |
| 106 | child performer preauthorization certificate before the |
| 107 | employment begins. The employer must be able to provide a copy |
| 108 | at the worksite when requested to do so. The division shall |
| 109 | retain a copy of the preauthorization certificate. |
| 110 | (e) The child performer preauthorization certificate is |
| 111 | valid for 1 year after the date it is issued or until the |
| 112 | specific project for which the child is employed by the employer |
| 113 | ceases, whichever occurs first. |
| 114 | (f) A signature is required from the child performer if |
| 115 | the child is 14 years of age or older. |
| 116 | (g) A preauthorization certificate may not be given or |
| 117 | issued without the signature of a parent or legal guardian |
| 118 | indicating his or her permission for his or her child to work on |
| 119 | a specific project. A parent or legal guardian must be within |
| 120 | eyesight and earshot of the child performer at all times other |
| 121 | than the time periods in which the child is with a certified |
| 122 | teacher when the teacher is teaching school. |
| 123 | (h) The parent or legal guardian of the child performer |
| 124 | may contact the division to renew the preauthorization |
| 125 | certificate 30 days before its expiration. |
| 126 | (i)1. It is the responsibility of the employer to provide |
| 127 | a certified trainer or technician accredited in a United States |
| 128 | Department of Labor occupational safety and health administered |
| 129 | and certified safety program at the place of employment at all |
| 130 | times when a child performer may be exposed to a potentially |
| 131 | hazardous condition. |
| 132 | 2. The employer must provide to the division a written |
| 133 | criminal history check on all certified trainers and technicians |
| 134 | on the movie set. It is the responsibility of the employer, |
| 135 | parent, legal guardian, and certified trainer or technician to |
| 136 | report any arrest or conviction record and any other information |
| 137 | that may present a possible danger to the health, safety, or |
| 138 | well-being of the child performer. |
| 139 | (3) LIMITATIONS ON CHILD PERFORMERS' WORKING HOURS, |
| 140 | INCLUDING SCHOOL TIME.- |
| 141 | (a) All child performers who are at least 6 years of age |
| 142 | but younger than 18 years of age must be provided with a |
| 143 | certified teacher for each group of 10 or fewer child performers |
| 144 | when school is in session. |
| 145 | (b) A child performer may not begin work before 5 a.m. or |
| 146 | continue work after 10 p.m. on evenings preceding a school day. |
| 147 | A child performer may not work later than midnight on a day |
| 148 | preceding a nonschool day. The time that a child performer may |
| 149 | be permitted at the place of employment may be extended by one- |
| 150 | half hour for a meal period. |
| 151 | (c)1. An infant who is at least 15 days of age but younger |
| 152 | than 7 months of age may not be employed as a child performer |
| 153 | unless a physician, who is a board-certified pediatrician, |
| 154 | provides a written certification that the infant is physically |
| 155 | capable of handling the stress of filmmaking. With the |
| 156 | physician's approval, the infant performer may be at the place |
| 157 | of employment a maximum of 2 hours and may not work more than 20 |
| 158 | minutes. Infants may work up to 2 cumulative hours in any 24- |
| 159 | hour period. |
| 160 | 2. A child performer who is at least 7 months of age but |
| 161 | younger than 3 years of age may be at the place of employment |
| 162 | for up to 4 hours and may work up to 2 hours. The remaining time |
| 163 | must be reserved for the child performer's rest and recreation. |
| 164 | 3. A child performer who is at least 3 years of age but |
| 165 | younger than 6 years of age may be at the place of employment |
| 166 | for up to 6 hours and may work up to 3 hours. The remaining time |
| 167 | must be reserved for the child performer's rest and recreation. |
| 168 | (d)1. When school is in session, each child performer who |
| 169 | is at least 6 years of age but younger than 9 years of age may |
| 170 | be at the place of employment for up to 8 hours; the sum of 4 |
| 171 | hours of work, 3 hours of school, and 1 hour of rest and |
| 172 | recreation. If school is not in session, work time may be |
| 173 | increased up to 6 hours, with the remaining time reserved for |
| 174 | the child performer's rest and recreation. |
| 175 | 2. When school is in session, Each child performer who is |
| 176 | at least 9 years of age but younger than 16 years of age may be |
| 177 | at the place of employment for up to 9 hours, the sum of 5 hours |
| 178 | of work, 3 hours of school, and 1 hour of rest and recreation. |
| 179 | If school is not in session, work time may be increased up to 7 |
| 180 | hours, with the remaining time reserved for the child |
| 181 | performer's rest and recreation. |
| 182 | 3. If school is in session, a child performer who is at |
| 183 | least 16 years of age but younger than 18 years of age may be at |
| 184 | the place of employment for up to 10 hours, the sum of 6 hours |
| 185 | of work, 3 hours of school, and 1 hour of rest and recreation. |
| 186 | If school is not in session, work time may be increased up to 8 |
| 187 | hours, with the remaining time reserved for the child |
| 188 | performer's rest and recreation. |
| 189 | (e) In exceptional circumstances due to unusual |
| 190 | performance requirements, the division may grant a temporary |
| 191 | waiver of the mandatory hours and start-to-finish times. The |
| 192 | waiver must be granted before the performances of the work that |
| 193 | is the subject of the waiver. The division may grant a waiver |
| 194 | only under the following circumstances: |
| 195 | 1. Written notification is provided which includes a list |
| 196 | of specific dates and times that the child performer shall be |
| 197 | employed or present at the place of employment. |
| 198 | 2. Written acknowledgement is provided that the child |
| 199 | performer's parent or legal guardian has been fully informed of |
| 200 | the circumstances and has granted advance consent. |
| 201 | (f) The child performer must be provided with a 12-hour |
| 202 | rest and recreation break at the end of each workday. |
| 203 | (g) All time spent traveling from a studio to a location |
| 204 | or from a location to a studio counts as part of the child's |
| 205 | workday. When a child is with a company on a location that is |
| 206 | sufficiently distant and requires an overnight stay, and the |
| 207 | child is required to travel daily between the living quarters |
| 208 | and the place where the company is actually working, the time |
| 209 | the child spends traveling does not count as work time, provided |
| 210 | the company does not spend more than 45 minutes traveling each |
| 211 | way and furnishes the necessary transportation. |
| 212 | (4) CERTIFICATION AND DUTIES OF CERTIFIED TEACHERS.- |
| 213 | (a) A certified teacher of a child performer who attends a |
| 214 | public school must possess a valid and current teaching |
| 215 | certificate issued by the Department of Education. A certified |
| 216 | teacher of a child performer who attends a private school or of |
| 217 | a nonresident child performer must possess a valid and current |
| 218 | teaching certificate from another state, territory, possession, |
| 219 | or other jurisdiction of the United States to teach grade levels |
| 220 | kindergarten through 12 or to teach the level of education |
| 221 | required for the child performer at the place of employment. |
| 222 | (b) A certified teacher has, in addition to teaching and |
| 223 | in conjunction with the parent or legal guardian, the |
| 224 | responsibility of monitoring and protecting the health, safety, |
| 225 | and well-being of each child performer who the teacher has been |
| 226 | hired to teach during the time that the teacher is required to |
| 227 | be present. |
| 228 | (c) The certified teacher, parent, or legal guardian may |
| 229 | refuse to allow the engagement of the child performer at the |
| 230 | place of employment. Any party may report to the division |
| 231 | conditions threatening the health, safety, or well-being of the |
| 232 | child performer. It is the ultimate responsibility of the parent |
| 233 | or legal guardian to ensure that the safety, health, and well- |
| 234 | being of the child are being protected. A certified teacher |
| 235 | shall be present during the time reserved for school, except |
| 236 | that a child performer younger than 16 years of age does not |
| 237 | require the presence of a certified teacher for up to 1 hour for |
| 238 | wardrobe, makeup, hairdressing, promotional publicity, personal |
| 239 | appearances, or audio recording if these activities are not |
| 240 | located on the actual site of filming or at the theatre or if |
| 241 | school is not in session, and if the parent or legal guardian is |
| 242 | present within earshot or eyesight of the child performer. |
| 243 | (5) TRUST ACCOUNT FOR CHILD PERFORMERS.- |
| 244 | (a) Each time a child performer is employed in the |
| 245 | entertainment industry in this state under a contract in an |
| 246 | amount equal to or greater than $1,000, a trust account shall be |
| 247 | created for the child performer. |
| 248 | (b) The parent, legal guardian, or trustee is responsible |
| 249 | for establishing a trust account for the child performer in the |
| 250 | child performer's state of residence for the sole benefit of the |
| 251 | child performer within 7 business days after the child |
| 252 | performer's employment contract is signed. The child performer |
| 253 | shall not have access to the trust account until the child |
| 254 | performer is 18 years of age or becomes legally emancipated. |
| 255 | (c) The parent, legal guardian, or trustee shall provide |
| 256 | the employer with a trustee statement within 15 days after the |
| 257 | start of employment. Upon receiving the trustee statement, the |
| 258 | employer shall provide the parent, legal guardian, or trustee |
| 259 | with a written acknowledgement of receipt. |
| 260 | (d) If the trustee statement is not provided to the |
| 261 | employer within 90 days after the start of employment, the |
| 262 | employer shall refer the matter to the circuit court. The |
| 263 | circuit court shall have continuing jurisdiction over the trust |
| 264 | account. |
| 265 | (e) The employer shall deposit not less than 15 percent of |
| 266 | the child performer's gross earnings directly into the child |
| 267 | performer's trust account within 15 business days after the |
| 268 | child has performed. If the account is not established, the |
| 269 | employer shall withhold 15 percent of the gross income until a |
| 270 | trust account is established or until the court orders |
| 271 | otherwise. After the employer deposits 15 percent of the gross |
| 272 | earnings in the trust account, the employer shall have no |
| 273 | further obligation to monitor the funds. |
| 274 | (f) After the funds are deposited in the trust account, |
| 275 | only the trustee is obligated to monitor and account for the |
| 276 | funds. |
| 277 | (6) SAFETY REQUIREMENTS FOR CHILD PERFORMERS.- |
| 278 | (a) A dressing room may not be occupied simultaneously by |
| 279 | a child and an adult performer or by children of the opposite |
| 280 | sex. |
| 281 | (b) It is the responsibility of the employer to provide a |
| 282 | safe, secure shelter for child performers 17 years of age or |
| 283 | younger to rest when required to be at the place of employment |
| 284 | during nonperformance times. |
| 285 | (c) An employer may not cause, induce, entice, or permit a |
| 286 | child performer to engage in or be used for sexually exploitive |
| 287 | material for the purpose of producing a performance. A child |
| 288 | performer may not be depicted in any media as appearing to |
| 289 | participate in a sex act. |
| 290 | (7) WAGE CLAIMS.- |
| 291 | (a) A determination of which child performer may have an |
| 292 | attorney appointed in order to assist the child in filing a wage |
| 293 | claim shall be based on the child's earnings. A child performer |
| 294 | earning less than one and one-half times the state's average |
| 295 | weekly wages, as determined by the agency, shall be considered |
| 296 | financially unable to employ an attorney. |
| 297 | (b) Wage claim forms must be completed in duplicate, |
| 298 | signed, and notarized. |
| 299 | (c) The agency shall notify the affected employer of any |
| 300 | wage claim filed against him or her and allow at least 10 days |
| 301 | for the employer to file a written response. If the employer |
| 302 | disputes the claim, his or her written response shall be given |
| 303 | to the child employee's attorney, who shall be allowed 10 days |
| 304 | in which to rebut the claim in writing. |
| 305 | (d) The agency may schedule an administrative hearing if, |
| 306 | in its judgment, it would facilitate resolution of the |
| 307 | complaint. The conduct of the hearing is not governed by the |
| 308 | Administrative Procedures Act, but rather by procedures |
| 309 | established by the agency. |
| 310 | (e) The agency may issue a subpoena duces tecum to compel |
| 311 | the production of records it believes are necessary for the |
| 312 | resolution of the complaint. |
| 313 | (f) The agency may issue written findings whenever it has |
| 314 | sufficient evidence upon which to base its determination. |
| 315 | (g) The agency may accept a notarized acknowledgment of |
| 316 | indebtedness from the employer if the agency believes it is the |
| 317 | best way to resolve the complaint. |
| 318 | (h) The agency may file complaints in any court in the |
| 319 | state in order to resolve wage disputes or correct violations |
| 320 | arising under this section. |
| 321 | (i) The agency shall obtain a written assignment form |
| 322 | signed by the child performer or his or her attorney and |
| 323 | notarized before initiating any legal action in any court of any |
| 324 | jurisdiction after a thorough investigation and determination |
| 325 | that the claim is valid. |
| 326 | (j) The agency may file a proof of claim on behalf of any |
| 327 | child performer in any United States bankruptcy court if a child |
| 328 | performer files a wage claim and if, in the agency's judgment, |
| 329 | it is appropriate for the resolution of the claim. |
| 330 | (8) NONISSUANCE OR NONRENEWAL OF PREAUTHORIZATION |
| 331 | CERTIFICATE; REDETERMINATION REQUEST AND PROCEDURES.- |
| 332 | (a) The division director may for cause refuse to issue or |
| 333 | renew a preauthorization certificate to any project that has |
| 334 | violated any provision of this section within a 2-year period. |
| 335 | (b) The director shall notify the employer within 10 days |
| 336 | after the dates requested of a nonissuance or nonrenewal of a |
| 337 | preauthorization certificate. |
| 338 | (c) Any affected party may request a reconsideration of |
| 339 | the director's actions, in writing, within 10 days. |
| 340 | (d) The director may schedule an administrative hearing |
| 341 | if, in his or her judgment, it would facilitate resolution of |
| 342 | the complaint. The conduct of the hearing is not governed by the |
| 343 | Administrative Procedures Act, but rather by procedures |
| 344 | established by the Agency for Workforce Innovation. |
| 345 | (e) The director may issue a subpoena duces tecum to |
| 346 | compel the production of records he or she believes are |
| 347 | necessary for the resolution of the complaint. |
| 348 | (f) The director may issue written findings whenever he or |
| 349 | she has sufficient evidence upon which to base his or her |
| 350 | determination. |
| 351 | Section 2. For the purpose of incorporating the amendment |
| 352 | made by this act to section 450.132, Florida Statutes, in a |
| 353 | reference thereto, paragraph (b) of subsection (1) of section |
| 354 | 450.021, Florida Statutes, is reenacted to read: |
| 355 | 450.021 Minimum age; general.- |
| 356 | (1) Minors of any age may be employed: |
| 357 | (b) By the entertainment industry as prescribed in ss. |
| 358 | 450.012 and 450.132. |
| 359 | Section 3. For the purpose of incorporating the amendment |
| 360 | made by this act to section 450.132, Florida Statutes, in a |
| 361 | reference thereto, paragraph (b) of subsection (2) of section |
| 362 | 562.13, Florida Statutes, is reenacted to read: |
| 363 | 562.13 Employment of minors or certain other persons by |
| 364 | certain vendors prohibited; exceptions.- |
| 365 | (2) This section shall not apply to: |
| 366 | (b) Minors employed in the entertainment industry, as |
| 367 | defined by s. 450.012(5), who have either been granted a waiver |
| 368 | under s. 450.095 or employed under the terms of s. 450.132 or |
| 369 | under rules adopted pursuant to either of these sections. |
| 370 |
|
| 371 | However, a minor to whom this subsection otherwise applies may |
| 372 | not be employed if the employment, whether as a professional |
| 373 | entertainer or otherwise, involves nudity, as defined in s. |
| 374 | 847.001, on the part of the minor and such nudity is intended as |
| 375 | a form of adult entertainment. |
| 376 | Section 4. This act shall take effect July 1, 2011. |