How to Build a Law

How to Build a Child Performer Law

Bizparentz is called upon occasionally to assist legislators in developing new laws regarding young performers. In doing so, we realized that many other entities might benefit from a greater understanding of why child performer laws are important, and how they are structured. Film makers need to understand why the requirements might vary from state to state. Media outlets may wish to use this info to apply to current events. So here it is…a primer of sorts for child performer legislation.

Background

In 1938, child performers were officially exempted from Federal Labor law.

The Fair Labor Standards Act of that year included what is sometimes referred to as the “Newsie” exemption since paper carriers were also exempted. The paperboys represented an enormous slice of the child labor pool in that era; crucial to the delivery of the newspapers that provided the foundation for empire builders like Hearst and the Chandler Family. Child performers of the day included stars like Shirley Temple and Jackie Coogan (who were paid far more than child actors today), but many child performers were doing vaudeville/circus type acts, traveling with their parents. Thanks to that exemption child actors do not have a federal standard for minimum wage or the number of hours they might work.

That leaves any legislative efforts to each state’s labor department. For many years, California was really the only state that actively enforced child entertainment labor laws. That state continues to have the most extensive matrix of laws in the nation, with laws being scattered through the Family Code, Probate Code, Labor Code and Education Code.

In recent years, the growth of “runaway production” (the idea that film making will travel to areas outside Hollywood including Canada, as well as other states) has caused states to compete with each other for the business of Hollywood. States outside California have created film offices, tax incentives and other perks that entice film makers to film in their area. Sadly, one the enticements have often been a LACK of child labor laws.

Wise states have realized the potential exploitation. Luring production in, and then having no legal infrastructure to support it is NOT a good idea. Some states have passed new legislation in the last few years: New York (2013), Louisiana (2005),Georgia (2018) and New Mexico (2007) for example. Several more are entertaining bills as we speak.

We are pleased at the efforts of states to protect children; however, it is creating a confusing web of laws that are becoming difficult to follow.

The Structure

Child performer legislation typically consists of 6 components. All 6 aspects must mesh for the legislation to work effectively.

1. Safety (Also see our Child Safety page)
2. Work permits, a system to track employers and children and allow for education of both of them. (Also see our CA Work Permit page)
3. Work hours (often based on SAGAFTRA negotiated hours)
4. Trust accounts (these can be blocked or unblocked UTMA accounts, but both are commonly referred to as “Coogan laws”). (Also see our CA Coogan Law page)
5. Education (on set, and concerning the child’s education back home) (Also see our School on Set page)
6. Penalties

Safety

A person must be designated to be responsible for the minor’s safety on set. Language should be something like California’s law which states, “A parent or guardian of a minor under 16 years of age must be present with and accompany such minor on the set or location and must be within sight or sound of the minor at all times.” The age designation should match whatever age regular labor law in the state allows teens to work alone at the work site (at fast food establishments for example). We believe that parents should ALWAYS be this designee.

Perhaps it seems obvious that parents would accompany their child to work and be responsible for them.  It is not uncommon for independent film makers and photographers to request that parents leave their children alone on set. One can imagine the danger there…sexual advances, dangerous stunts, etc. Someone must be responsible for the child’s safety, and it cannot be the film maker, who has an obvious conflict of interest. The buck stops at the parents, but legislators must give them the right and responsibility to be present at the job site.

An additional thought regarding safety: legislators might want to consider including a section about child pornography in this legislation as a safety measure. Something like “no child may be depicted in any media, as appearing to participate in a sex act.” If you are unfamiliar with this issue, please call Bizparentz for clarification. No state should be the go-to location for questionable filming.

Work Permits

This is also the section of a law where the definition of a child performer is stated.

Some states, like California, recognize that the payment of wages is not the sole definition of a professional performer. The laws must extend to those children performing in any media– internet (social media influencers), print modeling, circus, film, television, theatre, musicians and professional athletes. States may also expand it a bit to include “any form of electronic media (internet, podcasts, or any other media or advertising mechanism to be designed in the future)”.

We strongly suggest that states create a different ENTERTAINMENT WORK PERMIT for young performers in addition to the regular work permits that teens normally get. This permit allows the state to track young performers and it provides the function of the child’s school back home to know what they are doing when they are absent. It supports the education component.

In California there are dual work permits for children, one for kids working at McDonalds and such (“work permit” issued by their high school for ages 14-18), and another for kids in the entertainment industry (ages birth to 18). The later is issued by the Labor Department, but is signed by the child’s school back home to insure that this child is progressing satisfactorily in school—so the absence from school to film won’t hurt the child’s education. When a parent receives an entertainment work permit, they also receive a copy of the labor law related to the entertainment industry.  For states who do not plan to have welfare workers on the set (California does) it is particularly crucial that parents are introduced to the requirements of the new laws, and become aware of their rights and responsibilities.

California also has a permit for employers in the film industry (“Permit to Employ Minors in the Entertainment Industry”). This permit is signed by the film maker (and can be revoked as a penalty) and allows the labor department to distribute copies of the labor law to the film maker.

It is very important that states provide some mechanism for education of the film makers and the parents of actors. Permits allow a function for this. Hand them a copy of the new law, and have them sign that they understand it. That is supportive for the penalties states may also impose.

Work Hours

Allowable work hours are crucial to any child performer law. Without them, producers can and will work children many hours a day, into the night, and then offer to provide education at 2:00AM. An example of reasonable work hours is found in the Screen Actors Guild – American Federation of Radio and Television Artists (SAG-AFTRA) contract, and most states use this as a guideline. A child-performer’s working hours, including school time, are limited as follows:

• A child under the age of six shall not be employed or permitted to labor for more than six hours in one day.
• A child over the age of six and under the age of nine shall not be employed or permitted to labor for more than eight hours in one day;
• A child over the age of nine and under the age of sixteen shall not be employed or permitted to labor for more than nine hours in one day; and
• A child over the age of sixteen and under the age of eighteen shall not be employed or permitted to labor for more than ten hours in one day.

Both California law and the SAG-AFTRA contract require that school hours (specifically 3 hours per day on set) are part of the child’s work day. This is really crucial to any education component! The law must specify both the time required for education (recommend 3 hours) and that it must occur WITHIN the child’s work day. New York made this mistake in 2003, when they recently passed an education component to their entertainment law, but failed to specify work hours. This essentially made the NY legislation worthless and they had to overhaul the entire system in 2013.

We also recommend language here in regard to using premature infants. Years ago, it became common for productions to use premature babies and preemie twins and triplets for shots involving infants, since they were smaller. The safety issues for such infants are extreme and states may want to protect them by banning the use of preemies.

Alternatively, states may want to follow the lead of California by requiring a doctor’s physical for infants under the age of 6 months within the Entertainment Work Permit process (yet another use for that permit).

Trust Accounts

Trust accounts allow for employers to automatically deposit a portion of the child’s earnings into a trust account, much as adults might get a deposit into their social security account. Usually the amount is 15%.

Some states require ALL performers to abide by this law while others (New Mexico, Louisiana and Canadian British Columbia for example) establish an earning limit before the Coogan law goes into effect. That way, low earners like background performers won’t be subject to the law. California discovered their “day one dollar one” law was a bad idea since it included background players where the cost vs. benefit just wasn’t there.  California passed a corrective law in 2013.

Outside the industy, it is common to hear outrage at this amount—“only” 15%. To those familiar with a child actor’s pay check, this amount is not paltry. Keep in mind that child performers must pay taxes (at a higher rate that adults usually—around 30%), union dues (2%), agent (10%) and manager (15%) commissions, and pay for business expenses such as photos, classes, and transportation. A 15% Coogan account is a reasonable percentage considering that most of the child’s paycheck is gone before they see it.

Please note that legislators need to be very clear about WHY they want the Coogan component. All Coogan laws are inherently anti-family. They are designed to protect children from their own parents, who will, presumably steal their children’s money. Philosophically, there are problems with this concept. Also, is there any other industry where a worker is told how to spend their money, or to have a mandatory savings? Is that a violation of the child’s rights?

Ownership of the earnings:  note that only in California does the entire amount of money belong to the child (not just the 15%). This was legislated in the California Coogan law, but was not duplicated in any other state.  In all other states, the money continues to belong to the head of household, not to the child who earned it.

Non-blocked trust accounts are limited to use for the benefit of the minor, and have their own set of pros and cons. The primary issue is that if you aren’t going to block the account, the money isn’t really protected…so the law is toothless.

Lastly, states considering Coogan legislation should recognize that California’s Coogan system is extremely flawed. For instance, reportedly over $2 million dollars of children’s earnings were not deposited into trust accounts, due to a breakdown in the system. That’s a pretty dramatic statement of how crippled the system is. It required an entire fix-it bill just to figure out what to do with the funds those employers had kept instead of paying to the children.

The state attempted multiple remedies to this problem, such as attaching Coogan trustee statements to the work permit in order to make them valid, requiring production to give the parent a receipt so that they won’t “lose” the paperwork, requiring employers to pay the Coogan concurrently with the rest of the child’s paycheck instead of holding the funds and collecting the interest, etc. None of the remedies really work completely. Even after California implemented these increased protections, approximately 25% of the children are not paid correctly. So did the Coogan law really protect the kids’ earnings?

Education

Newer entertainment labor laws include a provision for the education of performers while they are working. This usually requires a “set teacher”. This is consistent with the SAG contract, New York law, and Louisiana law. In California law, however, it should be noted that our studio teachers are more than “just” teachers. They are dual credentialed (meaning they can teach both high school and elementary school) AND they have been certified by the state as a child welfare worker, with special training in set safety. So in California, “teachers” are present on set 24/7 and are charged with the safety of the minor as well as their education.

It needs to be clear that actual instruction time would be required, and how long that instruction time would be. As mentioned in the work hour’s section above, we strongly suggest that you include 3 hours of on-set education on school days, included within the work hours listed for each age group.

Compulsory Attendance and Excused Absences: education for the young performer must link to their regular education when they are not working. If it isn’t, child performers may be schooled on set, but still be punished for the absence when they return to their regular school after the job is over.  If you want your state to reap the economic benefits of filming, it would be wise not to penalize them for working in that industry.

Establishing a separate Entertainment Work Permit, helps address the issue and close the loophole. The child’s school back home must sign off on their work permit, so the child must have been doing OK in school before filming, and the school is aware that the child is a professional actor.

It is also suggested that states add an additional line that provides for “EXCUSED ABSENCES when a child is working under the guidelines of the Child Labor Act”. Meaning, they have a credentialed teacher on set, so they should get an excused absence from their regular school. Legislators may want to check with their Education Department to see if their ADA is affected by the absences, if a line in this bill (of Labor Law) will fix it, or if they need a separate Education bill.

In California, this quickly became a nightmare and had to be fixed with separate legislation. In New York it is a nightmare right now. Kids work and get education on the set, but their school at home declares them truant.

If done correctly, when the child attends school on the set, under a certified teacher, they would get an excused absence from their regular school and would return to their school without a break in their education.

Penalties

Typically, child performer legislation includes penalties (fines, jail or both) for violating the law. These are imposed on the production company, the parent, and possibly the studio teacher if you have one.

Again, permits are crucial. Film companies are itinerant by nature…they create a company for the purpose of one film or commercial. They can breeze into town, violate your laws, and then close their business before you even realize there was a complaint. If states have a permit system, it creates some advance notice of filming locations, whether there are children involved, and an identity attached to these companies and individuals.

In Summary

Parents welcome the support of child performer legislation. It makes our jobs MUCH easier. But it is important that the laws make sense and can be realistically supported by the entertainment industries existing infrastructure. Otherwise, the laws become a confusing web of unenforceable ideas, a web in which parents and kids are becoming caught. If we want to protect kids, we need to devote the time to really understanding how the industry works, and not get caught up in the drama and theatrics of child stars gone bad and productions gone wild.  Other states have made mistakes — learn from them.