The Model Alliance. MODELS AND THE LAW: Understanding The New Legislation

Transcription

1 The Model Alliance UNDER-18 MODELS AND THE LAW: Understanding The New Legislation

2 TABLE OF CONTENTS I. INTRODUCTION Introductory Note... 1 II.OVERVIEW Comparisons with Existing Law Governing Child Models... 2 Timeline of Child Labor Legislation... 3 Frequently Asked Questions Responsibilities III. SUPPORT Our Supporters IV. ABOUT About the Model Alliance V. ATTACHMENTS

3 INTRODUCTION

4 Most fashion models begin their careers in their early teens, and the choices they make as kids may have long-lasting repercussions. Yet until recently, fashion models have not received adequate protection under existing law. This summer, the Model Alliance, in collaboration with Senators Jeffrey Klein and Diane Savino and Assemblyman Steven Otis, introduced legislation in New York State that will help ensure that models under the age of 18 have the same protections as all other child performers. The bill is awaiting Governor Cuomo s signature and will be a momentous step forward, and my colleagues and I look forward to working with agents, casting directors, show producers, designers and editors to implement this new law. Sara Ziff, Executive Director of the Model Alliance 1

5 OVERVIEW

6 Comparison of Current Protections Regulation Must have Child Work Permit Child Performers Child Models Education Requirements Financial Trust Health and Safety Nurse on Premises Responsible Person on Set Permitted Work Hours Based Upon Age For more information on laws currently in place, visit modelalliance.org/child-models 2

7 Timeline 6/2012 Model Alliance's Alexandra Simmerson and Sara Ziff conduct research, and discover lack of compliance with existing regulations as well as models exclusion from child performer s regulations. 3/2013 Model Alliance publishes an online petition advocating that child models should be included in child performer regulations. 6/12/2013 Legislation passes in NYS Senate and Assembly unanimously. 9/2012 Sara Ziff testifies at a public hearing at the NYS Dept. of Labor advocating for child models inclusion in child performer regulations. 6/9/2013 With Senators Diane Savino and Jeffrey Klein and the support of Assemblyman Steven Otis, Model Alliance holds a press conference at Lincoln Center to introduce the legislation. Speakers include Coco Rocha, Doreen Small, and other former child models. 7/31/2013 CFDA Health Initiative information session with Model Alliance board members Susan Scafidi, Sara Ziff and Doreen Small. 3

8 Frequently Asked Questions Answered by Doreen Small, Expert in Fashion Modeling Law & Model Alliance Advisory Board Member INTRODUCTION The NYS legislature recently passed a bill extending the existing statutory and regulatory protections afforded by the Department of Labor to child models (under the age of 18). The bill must be signed by Governor Cuomo and will take effect 30 days after signature. In addition, the DOL may draft regulations specific to the modeling industry. Until that occurs, however, the existing regulations will apply as follows. Q: IN GENERAL, WHAT ARE THE EMPLOYERS RESPONSIBILITIES? Obtain an employer certificate of eligibility. (ATTACHMENT A) Submit a notice of use when engaging a minor.( ATTACHMENT B) Transfer at least 15% of the minor's income to a trust account. In certain circumstances, provide tutors and a work space. Maintain proper records and keep permits and certificates on file. Obtain emergency contact information and authorization to perform emergency medical treatment from the minor's parent/guardian. Designate a responsible person(s) as required for minor's under the age of 16. (Currently the minor must be accompanied by his/her parent/guardian or by an adult designated in writing by the parent/guardian, provided that for a minor 15 or under, the employer may not be designated by the parent/guardian.) Provide meal and rest breaks and abide by permitted working hours for minors. Provide health and safety information to minors, parent/guardian and responsible people. 4

9 Q: IN GENERAL, WHAT ARE THE AGENCY'S RESPONSIBILITIES? The agency has no specific responsibilities, but for the process to work effectively, the agency should: Coordinate with the minor's parent/guardian to ensure the Child Performer Work Permit application is complete, correct and properly submitted. Coordinate with the parent/guardian to supply each employer with a copy of the Work Permit. Coordinate with the employer to fund the minor's trust account. Coordinate with the employer and the parent guardian to provide a responsible person. In the case of foreign models, the agency should have a channel of communication with the parent/guardian either directly or through the mother agent. WHAT ARE THE PARENT/GUARDIAN'S RESPONSIBILITIES? Obtain a Child Performer Permit before the work begins (ATTACHMENT C) and provide each employer with a copy. Provide all necessary documentation for the permit including a certificate of satisfactory academic performance (ATTACHMENT D) and physical fitness. Renew the Permit before expiration. Establish a trust account. Notify the employer of the existence of the trust account, provide all information necessary to make transfers and advise the employer if they wish to transfer more than 15% into the account. Appoint a trust company as custodian of the account once the balance reaches $250,000. Make sure any minor who is required to attend school is not without a teacher and unemployed for longer than 10 consecutive days while school is in session. 5

10 Q: WHO IS THE EMPLOYER AND WHO NEEDS AN EMPLOYER CERTIFICATE OF ELIGIBILITY TO EMPLOY CHILD PERFORMERS? Any person or entity that employs a child performer in NYS to furnish artistic or creative services (INCLUDING MODELING) directly or through a third party provider (loan-out company) or through an agency or service that provides artistic or creative services (casting agency) is deemed the Employer and will need a Certificate of Eligibility irrespective of whether the minor receives compensation. Q: IN THE CASE OF MULTIPLE EMPLOYERS (PAYROLL COMPANIES, PRODUCTION COMPANIES ETC.), WHICH EMPLOYER MUST OBTAIN THE CERTIFICATE OF ELIGIBILITY? Any entity that does one or more of the following must obtain a Certificate of Eligibility: 1. Employs a child performer to furnish artistic or creative services either directly or through a third party provider; 2. Has "control" over the child performer's worksite (e.g. sets the hours of work); 3. Contracts with a payroll service when such service is used. Q: WHEN MUST AN EMPLOYER OBTAIN AN EMPLOYER CERTIFICATE OF ELIGIBILITY? The Certificate must be obtained prior to employing any minor. Certificates are renewable every three years and must be renewed 30 days before expiration. 6

11 Q: WHEN MUST AN EMPLOYER SUBMIT A NOTICE OF INTENT TO USE A CHILD PERFORMER TO THE DOL COMMISSIONER? Two days before each engagement. The Notice may be downloaded from the DOL website. Once completed, it may be faxed to the DOL at (518) The Notice must include: the number on the Certificate of Eligibility, the dates and expected duration of the minor's engagement; the physical address of the location of the engagement; the approximate number of minors to be used and the name and contact information of the employer's on site representative. Q: DOES A MODEL UNDER THE AGE OF 18 REQUIRE A PERMIT FROM THE DEPARTMENT OF LABOR IN ORDER TO WORK? Yes. Any model under the age of 18 who renders modeling services in New York State or, any New York resident under the age of 18 who renders modeling services anywhere outside NYS must have a Child Performer Permit issued by the NYS Department of Labor. This is required irrespective of whether the model is paid. Models under the age of 18 would no longer require a work permit from the Department of Education. Q: WHO MUST OBTAIN THE PERMIT AND IS THERE A FEE? There is no fee. The minor's parent or guardian must obtain a Permit before the model renders services and must provide a copy of the Permit to each client who engages the model. Q: HOW DO I OBTAIN A PERMIT? There are two ways to obtain a permit: 1. If you are a first time applicant, you may obtain atemporary Child Performer Permit which is valid for 15 days on-line at To complete the application for the 15 Day Permit, you must enter the minor's Social Security number, or if not a US Citizen then the passport ID number. Enter all the required information and print the completed application at the end of the process. This will give you time to establish a trust account and produce all documentation necessary for the DOL to issue the one year Permit. 7

12 2. If the minor has already received a permit, the applicant must complete the Child Performer Permit Combined Application which can be found at and submit the application to the NYS DOL by mail at the following address: New York State Department of Labor Division of Labor Standards Permit and Certification Unit, Room 266A State Office Campus, Building 12 Albany, New York This Permit is valid for one year, for multiple engagements and may be renewed thirty days beforeexpiration. The parent must give a copy of the permit to each employer before the engagement begins. Q: WHAT INFORMATION IS REQUIRED? The applicant must provide the following information along with certain attachments: Child performer identifying information and identification (birth certificate, passport) Parent/Guardian identifying information and identification (picture identification i.e. passport) If the applicant is a guardian, a notarized statement from the parent naming the person as guardian, or a certified and numbered court document appointing the person as guardian must be provided. Education/Academic status information - evidence of satisfactory performance or evidence that the minor is no longer required to attend school. Trust account information - evidence that the account has been established and is open. Physical fitness certification obtained from a licensed physician, physician's assistant or nurse practitioner certifying that the minor has been examined within the prior 12 months and found to be physically capable of engaging in the assignment. Q: MAY A MINOR'S AGENT/MANAGER APPLY FOR THE PERMIT ON THE MINOR'S BEHALF? Every application requires a declaration and signature from the minor's parent/guardian. The agent/manager, however, may help complete the application and arrange for filing. 8

13 Q: WHY MUST A PARENT/GUARDIAN SET UP A TRUST ACCOUNT FOR A MINOR? The DOL will not issue a one year Child Performer Permit unless the trust account information is provided with the application. Q: MUST THE TRUST ACCOUNT BE SET UP IN NYS? No. It may be set up anywhere as long as it meets NYS requirements or is a blocked "California Coogan" type account, and the employer is permitted to complete the required transactions. Q: WHAT ARE THE EMPLOYER'S OBLIGATIONS WITH REGARD TO TRUST ACCOUNTS? The law requires the employer to deposit at least 15% of the minor's earnings into a trust account within 30 days following the final day of employment. If the employer does not receive the trust account information within 15 days of the start of employment, the employer must turn the 15%over to the State Comptroller who will hold the money in the minor's name until the minor reaches the age of majority. Q: MUST AN EMPLOYER PROVIDE A TEACHER/TUTOR FOR ALL MINORS THEY ENGAGE? No. An employer need not provide a teacher/tutor for minors who are homeschooled or distance educated. Q: WHEN MUST AN EMPLOYER PROVIDE A TEACHER/TUTOR? An employer must provide ateacher/tutor when school is in session, on those school days when the minor is not receiving instruction due to the minor's work schedule as follows: From the third day of missed instruction through the remainder of the minor's employment in the production; or from the first day of missed instruction through the remainder of the minor's employment in the production if the minor was guaranteed three or more consecutive days of employment. 9

14 Q: HOW CAN AN EMPLOYER OBTAIN AN EMPLOYER CERTIFICATE OF ELIGIBILITY? Download the application form from the DOL website. Complete the form, with employer identification information (address, contact information), employment information (dates, manner of use) and parent/guardian consent. Attach proof of NYS Workers' Compensation and Disability Insurance, or proof of exemption from this requirement. Proof of coverage may be obtained from an insurance carrier. The exemption form may be obtained from any district office of the Workers' Compensation Board or through its website at http// Include a check in the following amount: Venue with seats Initial registration $200 Renewal $200 All others: Initial Registration $350 Renewal $200 Sign the form and mail to the DOL at the following address: NYS Department of Labor Division of Labor Standards Permit and Certificate Unit, Room 266A State Office Campus, Building 12 Albany,NY The certificate will issue in approximately 2-3 business days. If there are questions, call the Permit and Certificate Unit of the Division of Labor Standards at (518) or at CPinfo@labor.ny.gov or visit the website at Q: MUST AN OUT-OF-STATE EMPLOYER WHO ENGAGES A MINOR WHO IS A NYS RESIDENT APPLY FOR A CERTIFICATE OF ELIGIBILITY? Yes, if the engagement takes place in NYS. If the engagement takes place outside of NYS,no Certificate is required but if the employer has an office in NYS and the minor is anys resident the employer must abide by the trust and education provisions. While school is in session, instruction must average 3 hours per school day each week with a minimum of 1 hour on each school day. Instruction time over 3 hours per day may be banked and spent on another day. No more than 5 hours may be carried over from week to week. 10

15 Q: MUST THE TEACHER'S CREDENTIALS BE RECOGNIZED BY NYS? Yes. To find out whether the teacher the proper credentials, contact the minor's local school. Q: WHAT ELSE MUST THE EMPLOYER PROVIDE WITH REGARD TO EDUCATION? The employer must allow the minor time to fulfill the education requirements. The employer must set aside a space exclusively for tutoring while tutoring is taking place. The space must be clean and well lit with a work surface, chairs and supplies necessary for instruction. Q: WHAT IF THE MINOR HAS GRADUATED FROM HIGH SCHOOL? Graduation from high school does not exempt the minor from the Child Performer Permit requirement or exempt the employer from following the limitation on hours set forth in the regulations. If, however, the employer provides proof that the minor has completed high school, the employer need not include the Academic Performance Verification form when renewing the minor's Permit. Q: WHAT ARE THE PERMITTED WORK HOURS FOR MINORS? See chart contained in information packet. Q: ARE THERE HEALTH AND SAFETY REQUIREMENTS? Yes. The employer must notify the minor and the minor's parent/guardian of any potential hazards associated with the activity to be performed. 11

16 While school is in session, instruction must average 3 hours per school day each week with a minimum of 1 hour on each school day. Instruction time over 3 hours per day may be banked and spent on another day. No more than 5 hours may be carried over from week to week. Q: MUST THE TEACHER'S CREDENTIALS BE RECOGNIZED BY NYS? Yes. To find out whether the teacher the proper credentials, contact the minor's local school. Q: WHAT ELSE MUST THE EMPLOYER PROVIDE WITH REGARD TO EDUCATION? The employer must allow the minor time to fulfill the education requirements. The employer must set aside a space exclusively for tutoring while tutoring is taking place. The space must be clean and well lit with a work surface, chairs and supplies necessary for instruction. Q: WHAT IF THE MINOR HAS GRADUATED FROM HIGH SCHOOL? Graduation from high school does not exempt the minor from the Child Performer Permit requirement or exempt the employer from following the limitation on hours set forth in the regulations. If, however, the employer provides proof that the minor has completed high school, the employer need not include the Academic Performance Verification form when renewing the minor's Permit. Q: WHAT ARE THE PERMITTED WORK HOURS FOR MINORS? See chart contained in information packet. Q: ARE THERE HEALTH AND SAFETY REQUIREMENTS? Yes. The employer must notify the minor and the minor's parent/guardian of any potential hazards associated with the activity to be performed. 12

17 Q: WHAT ARE THE RECORD KEEPING REQUIREMENTS? The employer must maintain and preserve for 6 years after termination of the minor's employment the following records: a copy of the Child Performer Permit; the child performer's given and professional names, last known mailing address, permanent address, date of birth and Social Security Number; the names and addresses of the parent/guardian and home and business phone numbers; a record of the minor's start and end times, the amount of time present at the worksite and the amount of time worked on each work day: the amounts of gross wages earned and paid in each pay period (deductions and net wages if applicable); the amounts transferred into the trust account, the account number and the name and address of the financial institution holding the account; any amounts transferred to the Comptroller; written agreements between parent/guardian concerning the responsible person; the record dates and hours of instruction provided to the minor by the on-set tutor. Q: ARE THERE EXCEPTIONS TO THE REGULATIONS IN THE EVENT THE EMPLOYER EXPECTS TO INCUR SIGNIFICANT HARDSHIP IN COMPLYING WITH ONE OR MORE OF THE PROVISIONS? The employer may apply to the Permits and Certificates Unit of the Division of Labor Standards for a variance from such provision (ATTACHEMENT E). The request must be in writing and must be made no later than 2 business days before the requested modification is to take effect. A request for expedited variance if received less than 2 business days before the engagement will be considered to the greatest extent feasible. If the Commissioner approves, the Department will issue a written notice of approval, which the employer must keep on site. Q: ARE THERE PENALTIES WHEN AN EMPLOYER OR PARENT/GUARDIAN FAILS TO COMPLY? The Employer Certificate may be suspended or revoked. In addition the Commissioner may assess civil penalties not to exceed $1,000 for the first violation, $2,000 for the second and $3,000 for the third or subsequent violation. 13

18 Responsibilities EMPLOYER PARENT/GUARDIAN Employer Certificate of Eligibility Notice of Engagement Emergency Contact Variance if necessary Child Performer Permit Verification of Satisfactory Academic Performance (school to complete) Physical Fitness Certificate (physician to complete) Trust Account (no form included in packet) 14

19 Coco Rocha When it comes to protecting children, the moral argument should override any perceived inconvenience of rules, record keeping or expense. SAG-AFTRA "Underage models should be no exception to sound regulations for child performers. Karen Elson Bravo! Well done for fighting for this. NYS AFL-CIO Child runway and print models need and deserve the same safeguards of other child performers, not second rate protections." Tyra Banks I look forward to seeing young models have rights my generation did not. 15

20 ABOUT THE MODEL ALLIANCE Founded in 2012 by Sara Ziff, with the support of other models and the Fashion Law Institute at Fordham Law School, the Model Alliance is a not-for-profit labor group for models working in the American fashion industry. 16

21 ATTACHMENTS

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32 New York State Department of Labor Division of Labor Standards Permit and Certificate Unit, Room 266A State Office Campus, Building 12 Albany, NY Parent/Guardian Emergency Contact Information, Authorization for Emergency Medical Treatment, and Permission to Perform A. Instructions for Employers Obtain the following information from the parent/guardian for each child performer employed. B. Instructions for Parents Complete Part C and Part D. Sign and date the form. Provide this completed form to the employer. C. Performer and Parent/Guardian Information Child Performer Name Child Performer Stage Name (if different) Child Performer Age Parent/Guardian Name Parent/Guardian Address D. Parent/Guardian Emergency Contact Information and Authorization Emergency contact name and relationship to child Emergency contact phone number(s) Home Work Cell Medical conditions affecting child s health or safety (optional) Allergies (optional) Name of child s physician Physician s phone number Check if applicable The employer has access to the above information (Part C) through (name of organization) which is providing the group of performers to the employer. I have granted permission for the employment of the above named child and I hereby authorize the provision of emergency medical treatment to be provided for this child if needed during such employment. Parent/Guardian signature Date LS 563 (3-13)

33 CONTACT: modelalliance.org THE MODEL ALLIANCE Giving a voice to the faces of the fashion industry.