Child Performers Coalition
February 7, 2011
Mr. Jeffrey Shapiro New York State Department of Labor State Office Campus Building 12, Room 509 Albany, NY 12240
VIA EMAIL & CERTIFIED LETTER Jeffrey.Shapiro@labor.ny.gov email@example.com
RE: Public Comments in Opposition to Proposed Changes to 12 NYCRR §186 Entitled “Child Performers” Created Under Chapter 89 of the Laws of 2008
Dear Mr. Shapiro,
I formed Child Performers Coalition in December of last year in response to the New York State Department of Labor’s (DOL) proposed changes to the regulation of Child Performers and their Employers. Since that time, I have tried, using my background and experience, to make sense of the proposed rule changes and the sweeping, game changing affect they will have on the lives of child performers and New York’s production economy.
Child Advocacy Background, Training & Experience
As Child Performers Coalition is a new organization, I find it helpful to provide context for my opposition by highlighting my background, training and experience. My background is an attorney, registered mediator, felony prosecutor. I have also served as a state registered lobbyist ~ I have drafted legislation, testified in Judiciary Committee Hearings specifically working on Child Endangerment Legislation and Anti- Female Genital Mutilation Legislation. I have prosecuted sex offenders, including adult and child victims, written and co-produced safety programs and spoken publicly about the dangers of child sexual predators. Currently, I work with a large, well-known private equity group as a strategic communications consultant.
I attended a high school for performing arts and as a young girl performed in a children’s repertory theatre production on the Upper West Side of NYC. My 11 year old son is a working actor in NYC. My 13 year old daughter is a singer and involved music theatre. My 15 year old son is not involved in the entertainment community.
Child Performers Coalition Page 2I have read all the New York State Department of Labor (DOL) documents, the old law and proposed changes, I have drafted six position statements and five spreadsheets comparing the old and new law, and I have reviewed video tape of the Child Performer Advisory Board meetings and attend both DOL Hearings. I have come to one conclusion ~ if you understood the industry you wouldn’t have drafted the rules the way you did. The rules endanger children and are certain to drive productions away from New York City and the State of New York.
Productions Are Not All The Same
By promulgating these rules, the DOL has taken the leap of faith that all productions are the same ~ that film, television and theatre even reality t.v. ~ can all fit within the same box. They cannot. A bicycle, a car, and train will all get you to where you want to go but they are all very different animals. In fact, reality t.v. is so far distinct and other has protections through social services, that they shouldn’t be included within the rules at all ~ they are like a hot air balloon ~ it will get you where you want to go but doesn’t have any wheels. Defining reality t.v. kids ~ as child performers will have huge ramifications on the entertainment industry, ramifications I am certain were not considered by the DOL.
Each industry has specialized needs and restrictions and must be treated differently. To say otherwise is to fail to understand production. If you don’t understand the industry you are regulating, then don’t regulate the industry.
Failure to Listen to Child Performers or Parents
As the DOL notes, 6,000 child performers are permitted to work in New York with almost 500 productions permitted to employ child performers. The blatant failure of the DOL to include parent’s of child performers and child performers themselves in discussions is reprehensible. I am certain you would include steelworkers, dock workers, police officers, sanitation workers if you were drafting rules that changed their working conditions and their ability to work. Kids are different because they can’t vote, can’t organize and don’t have any money to contribute to a political campaign. The mission of the DOL is to protect its work force and permitted child performers are a part of that work force.
DOL Can Make Life Fair
As attorneys, we can all remember the little gems of wisdom bestowed by our revered law professors. A memorable professor of mine use to rant that “LIfe’s not fair ~ Learn it now.” Tough words for a wide eyed aspiring felony prosecutor at the time. For many, life isn’t fair. Some things just aren’t right, aren’t acceptable, it shouldn’t be tolerated and if we can make things right, if we find a way to shift the balance of power, we should either find a way or make one. I continue to cherish the peacefulness that comes when justice is served, when the balance of power is just that ~ balanced. When, for a moment in time, life is fair.
Child Performers Coalition believes that the Department of Labor has behaved with reckless abandon in forsaking the importance of production to the New York City and
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New York State economy. Now, The Department of Labor has a unique opportunity to purposefully change that dynamic and make life fair for productions, performers and the New York economy.
The Department of Labor has the ability to right this imbalance, this unfairness that has been created by the actions of your agency, by tabling the proposed rules so that we can all take a collective breath, agree to lay aside history, roll up our sleeves and get to work on a new rule ~ a healthy rule that promotes production in New York and protects the welfare of its workers.
No Need to Fast Track Changes
The Child Performers Education and Trust Act of 2003 has been in place, without change for over seven years and there is no need to fast track any changes. Although not perfect, it has served the needs of performers and production for many years. Not one group has called for its reform. Still, we respect the right of the DOL to wield its power and impose regulations at any time.
Unfortunately, the new regulations neither promote industry nor protect labor. In fact, the regulations do the exact opposite ~ they discourage the production industry from doing business in New York and they place children in harms way ~ physically, mentally and financially. The regulations actually make things worse for all affected groups, not better. We have repeatedly expressed that the proposed rules are a bunch of bad ideas that, if adopted, will become a very bad law yet these rule still remain on the table while a vital industry twists in the wind.
Make No Mistake, DOL Rules Are Laws
Although the NY Department of Labor has proposed rules, those rules, if adopted, will become the law of the land. The rulemaking process should be reserved for use only in non-industry changing contexts. DOL’s proposed rules have the legal affect of creating law without representation. In drafting broad and general language, the New York State Assembly has abdicated their role as lawmakers, bound by checks and balances, to state agencies who have no system of accountability. It is unconscionable that out of control agencies such as the DOL remain unchecked leaving employers, employees, consumers, and, of course, child performers and their productions, at the mercy of state agencies.
Insanity: Doing the Same Thing and Expecting a Difference Result
The DOL has repeatedly indicated it will review all the public comments, redraft the language, publish the revised language, and again receive public commentary. What the Department of Labor has failed to explain is how it will determine which letters writers really understand the nuances of each segment of the entertainment industry, which scribes stand to make a buck, which authors genuinely have the interests of production and which have the backs of child performers.
And somehow, Labor attorneys who didn’t know that kids were permitted twice a year and not once, who didn’t know current permits don’t ask for a physician’s certificate, who
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we imagine have never been on set and have never had a conversation with a child performer ~ Labor attorneys who have proven us to that they can draft insane rules ~ are suppose to make changes to a rule that is fundamentally flawed. This dynamic is frightening.
We Respectfully Request That the Rules Be Tabled Immediately
Child Performers Coalition respectfully requests that the NYS Department of Labor immediately table their proposed changes to 12 NYCRR §186 entitled “Child Performers” created under Chapter 89 of the Laws of 2008, work with production industry leaders, including Child Performers Coalition and BizParentz Foundation, to establish an Advisory Board. A Board that will install committees to make recommendations using their wealth of industry specific experience. A Board that, in the end, will be best suited to develop the most responsible rules for New Yorker ~ rules that promote film, television, and theatrical productions and protect the physical, mental and financial well being of child performers. New Yorkers, our entertainment community, and our child performers deserve nothing short of the best rules possible.
Working Committees Are Essential to Success
I have seen first hand the value of a meaningful exchange of ideas, of vigorous debate, of expert testimony, as this dynamic bring together acute moments of clarity and insight not possible otherwise. To that end, we propose the following working committees be installed, including but not limited to: Work Permits & Employer Responsibilities; Education; Trust Accounts; Model Regulation: Reality Television Regulation; Safety & Supervision; Work Hours; and Group Permits.
Critical to the success of the working committee system is their make-up and composition. Not only should committees be comprised of industry leaders in film, television and theatrical, union organizations, Child Performers Coalition & BizParentz Foundation but also private, local and state government education representatives, Office of the New York State Comptroller, DOL Permit Office and other affected groups that can support the effort to bring clarity and reasonableness to the conversation.
Failure to Provide Impact Statements
Child Performers Coalition believes that the impact of the proposed rules will have extreme adverse consequences to the New York City and New York State economy. Loss of revenue could total millions of dollars per year as productions that can leave the State will leave the State taking with them revenue, jobs and opportunities for entertainment community members, both young and old, to work and pursue their career. To accept the NY DOLʼs assessment that the proposed rule will have no impact, minimal impact or even increase production is to suspend reality. CPC demands that the DOL conduct an accurate, fiscally sound, Regulatory Impact Statement to support their vision of reality.
The NYS DOL Regulatory Impact Statement (RIS) sites only anecdotal evidence and is void of any research, data collection, reports, or alternatives, that would assist in “assessing the quality of [the] agency’s analysis and the validity of [their] conclusions
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and recommendations” as [the agency’s] “presentation . . . must include a reasonably detailed description of the agency’s methodology, data sources, assumptions, [and] findings.” Cost-Benefit Assessment in Rulemaking: A Guide For State Agencies, July 2008, page 17
Further, the DOL’s Job Impact Statement states: “This [the rule changes] should increase the availability of child performers for the arts, entertainment, and advertising industries and bring more of this work to New York. It is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs or employment opportunities, therefore no Job Impact Analysis is required.”
It is clear from all industry representatives that the DOL’s analysis of the entertainment industry’s reaction to the proposed changes is contrary to rational belief. If adopted, New York will be by far the most restrictive and costly State in the country for a child performer or their employer (i.e. production companies) to work.
Specifically, the DOL’s Regulatory Impact Statement or Job Impact Statement fails to account or provide data for the following variables:
Costs to Child Performers:
• Cost to secure two physical and mental health evaluations by physician per year (only one may be covered by insurance, if the child has health insurance, with some policies paying for one every two years as the child enters teen years)
• Cost due to loss of background work income • Cost due to loss of 15% of income for failure to close Trust Account loopholes • Cost due to loss of income if parent refuses to consent to employer’s denial of “sight
and sound” access to child over the age of six or schoolroom access • Cost due to loss of income due to permit delays • Cost due to loss of income if productions chose to leave NY in favor of “production
Cost to Employers:
• Cost to retain and manage tutor • Cost of oversight of educational hours and paperwork • Cost for orientation training of child performer • Cost to retain and manage nurse • Cost to collect and manage medical, food allergy & emergency information • Cost to notify DOL of production changes and child performer information • Cost to maintain two distinct payroll systems
Cost to Off-Site Education Tutors
• Cost due to loss of income as education instruction shifts to “on location” education only
Cost to NY Economy:
• Cost to NY economy if productions using child performers choose to not to work in NY
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• Cost to NY economy/revenue for change from paid background work to unpaid background work via group certificates
Cost to NYC Economy:
• Disparate geographic impact to NYC as host to vast majority of productions
Cost to Department of Labor:
• Cost to increase staff and resources to meet the demands of increased paperwork, oversight of productions, and to confirmation of veracity of physician certificates
• Copy of Physician Certificate Form • Copy of Employer Certificate of Group Eligibility Form • Copy of procedures to protect against HIPPA violations • Copy of Eating Disorders Guidelines to be reviewed by child performer parents
POSITION STATEMENTS REFERENCING SPECIFIC PROVISIONS
It is undisputed that the Child Performers Advisory Boardʼs formation was inextricably linked to the unfortunate death of a Brazilian model. The NYS Department of Laborʼs Division of Labor Standards is charged with regulating the type of work and the work hours for minors under the age of 18 yet child models continue to be regulated by the Department of Education. The Department of Labor (DOL) has chosen to exclude child models from their definition of child labor and allow the Department of Education (DOE) to permit child models. As employers of child models are not permitted by either the DOE or the DOL, the DOE permits are of no legal standing. Most models arenʼt even aware of the DOE permitting process and even fewer of their employers require them because there is no legal consequence to the employer for failure to require the permit. Child models, if they are permitted, merely use their permit to secure an excused absence from school when working.
Why has the DOL failed to include Child Models within their jurisdiction? In the words of a DOL attorney during a Child Performers Advisory Board Hearing ~ because no one has asked us to include them. To be clear, Child Performers Coalition is requesting that the regulation of Child Models and their Employers by the DOL be studied in a committee formed for such purpose. Other states child performer definitions include child models and there is no reason for the continued disconnect. Going a step further, we ask that “Second Company” dancer be included in this discussion as these child performers receive a education stipend for their work and performers receiving stipends are not permitted by either the DOL or the DOE. For more information see attached “CPC History & Representation Position Statement.”
“Sight & Sound”
Child Performers Coalition believes that, with very few exceptions, the childʼs parent is the best advocate for the interests of their child. The “sight and sound” provision is the
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single most dangerous provision in the proposed rule. Specifically, the provision will allow employer discretion to deny a child over the age of 5 “sight and sound” access to their parent and instead appoint a “responsible person” to monitor the child throughout the work day.
Unions such as SAG and AFTRA have “sight and sound” language within their industry standard contracts mandating that employers allow children “sight and sound” access to their parent or, conversely, employers allow parents “sight and sound” access to their child. A modest amount of the permitted child performers belong to industry unions. As a result, these non-union performers and their employers, do not work under the more restrictive language of union contracts such as SAG, AFTRA or Actorʼs Equity.
Often, these non-union actors traditionally have less work experience and are less adapt to understand the dangers inherent in working on set. At the same time, non- union sets are often less professional, the environment less controlled, and corners are routinely cut, leaving non-union actors even more vulnerable than their union counterparts and in more need of protection, not less.
In effect, this provision asks a parent to walk to Times Square and hand her six year old child off to a stranger for the day. The consequences will be devastating and I cannot stress this enough. Pedophiles need access to children to satisfy a basic instinct, the need to have sex. Pedophiles love child performers and now an unvetted, employer selected, “responsible person” will have unlimited, unsupervised access to kids.
Can you imagine the conversation ~ Mommy is going to have to go away now and this is Dave. Dave is going to take care of you for the day while you perform total strangers. Do what he says for Mommy OK? If you need to change costumes or go to the restroom, Dave will help you.
Child Performers Coalition asks that any reference to employer discretion to deny “sight and sound” access to a parent should be removed. Instead, language requiring production companies to provide a parent with “sight and sound” access to their child should be substituted with the caveat that productions, particularly theatrical productions, can accomplish this mandate using a video feed, if necessary, due to location specific issues.
In keeping with Child Performers Coalitionʼs belief that parents provide their child the most protection, we ask that any reference to “Responsible Person” be removed from the rule. The “Responsible Person” provision jeopardizes the safety of child performers. “Responsible Persons,” as defined under this provision, are not subject to a proper vetting process such as references and criminal background check. Child Sexual Predators have historically been a taboo, yet notorious subject, within the entertainment community. Predators need unsupervised access to children and this state mandated exclusive right to access to children will result in exponential increases in sexual attacks on children.
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Due to the fluid nature of production, with crew routinely assuming multiple roles at any given time and crew routinely stepping in and out of productions themselves, such a vetting process would necessarily subject an entire production crew to said vetting. Although we welcome the most safe environment for child performers, we also recognize the enormous expense, the burdensome delays in obtaining this vetting and realize that most child sexual predators or child abusers have never been charged within the criminal justice system. For more information, see attached CPC “Responsible Person” Position Statement.
“No Access to School Room”
Child Performers Coalition asks that any mention of a restrictive classroom setting be removed from the rule language. CPC believes that this language was injected into the rule by a On Location Education (OLE), a for-profit company, that should not have had such an overwhelming presence in discussion with the DOL as well as a member of the Child Performers Advisory Board (Eating Disorder Committee). This language has more to do with the profit gains and threatened unionization of “child wranglers” and nothing to do with protecting the educational interests of child performers. A parent should never be legally barred from having access to their minor child. We acknowledge child sexual predators continue to take an inappropriate interest in child performers and believe that allowing a child to be locked in a room with a stranger for three hours is never safe.
In addition to the inherent safety concerns, denying parents access to the schoolroom fails to provide homeschoolers access their parent teacher and also fails to provide parental assistance when necessary given the student teacher ratio and assorted child performer educational levels. As highlighted in Labor Hearing testimony, the professionalism of some set tutors has been called into question in a dramatic fashion. In those instances, parents provide the last line of defense of the childʼs mental and physical health as well as their education. For more information, see attached CPC School Room Position Statement.
“Mental & Physical Health Evaluations”
Child Performers Coalition strongly opposes any requirement of a physical and/or mental evaluation of any kind and asks that any mention of said evaluations be removed from the rule language. The Child Performer Advisory Board, otherwise known as The Eating Disorder Committee, was, in a word, a farce. This Board was formed in 2007 to prevent eating disorders in models with the term “child performers” haphazardly thrown into the mix without any proof whatsoever of problems within the industry.
It is abundantly clear from review of the Board meeting videos that neither the Labor Attorneys present nor the Governorʼs Office of Regulatory Reform (GORR) representatives moderating the meeting did not understand the permitting requirements of the current law. Their failure to understand this basic element led all those in attendance to assume that the current permit mandated physicals.
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The current rule makes no mention of mental or physical evaluations of any kind. Therefore, Board Members, the Labor attorneys, whose counsel was continuously relied upon, and the GORR representatives, who inserted themselves in the process, believed they were merely amending a process already in place rather than establishing a new, sweeping, intrusive and costly requirement.
Compounding the problem was the fact that the DOL attorneys and the GORR representatives mistakenly believed that child performers were permitted once a year. The Board recommended that their mental and physical health evaluations be required once a year. This requirement changed when. after the recommendations were handed down, the DOL attorneys realized that performers were permitted twice a year.
Therefore, there was no discussion of the collateral issues surrounding the adoption of one health evaluation, much less two healths evaluations, per year. Cost, appointments to facilitate two physicals per year, stress on the child performer having to undergo two physicals per year with the added dynamic of personal questioning and weigh-ins were never discussed. The negligent behavior of the government staff involved in the Board meetings is shocking and deserves formal inquiry.
Although we recognize the valuable service they provide, the myopic perspective of a Board comprised almost entirely out of eating disorder clinicians was without check. Not a single pedestrian was a member of the Board or spoke at any of their meetings. The result, a witch hunt of sorts targeting child performers after it became clear that child models and members of dance companies were not regulated by the DOL. Sadly, child performers, film and television actors, and theatrical singer/dancers were, in effect, the last man standing.
The vast majority of child performers have health insurance, the vast majority receive yearly physicals, and the vast majority have to provide brief medical certificate signed by a physician to their school each year. Some child performers undergo separate physicals in keeping with production insurance.
Medically fragile children cannot keep up with the physical and mental demands of productions. Still, safeguards are in place. If someone believes a child performer, or any child, is medically deprived then a request can be made of social services to intervene on the childʼs behalf. Weigh-ins, invasive personal questions, and monitoring of a female performers menstrual cycle is not the job of the NYS DOL or any government agency. Pediatricians and parents provide for the medical needs of their children ~ always and without interference. For more information, see attached CPC Health Certificate Position Statement.
“Trust Account Loopholes”
Child Performers Coalition believes that performers, regardless of age, deserve to have 100% of their pay in a timely manner. Monies due to Trust Accounts are not an exception to this belief as they are not a benefit or additional pay. Contrary to the
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proposed language, employers should not have discretion in withholding payment from child performers. Their status as minors should not confer on them a diminished standing whereby employers can draw interest from earnings and, at a future date, release the money. As written, the proposed rules create opportunities for lost wages beyond the loophole riddled Trust Account language that currently exists.
The problem of missing Trust Account monies is notorious within the entertainment business. Millions of dollars is being held by Actorʼs Equity in California and tens of thousands of dollars is being held by the NYS Comptrollerʼs Office. As Trust Funds are only required to retain 15% of a childʼs wage, the remaining 85% is missing as well. Currently, state regulations bar the DOL and the State Comptrollerʼs office two agencies from sharing information. We would also like the language adopted to allow the DOL to work with the NYS Comptrollers Office to share permit information so that performers receive their missing Trust Fund monies.
California has solved much of their missing trust fund account problem by simply requiring that permits are valid only when the Trust Account verification information, currently required by NY Permits, is stapled onto the permit itself. A unique way to serve both the needs of productions, performers, banks and the Comptrollerʼs Office would be to set a monetary benchmark for Trust Fund Account savings to kick in.
Finally, unlike California, New Yorkʼs Trust Account are not blocked and viewed as the property of the head of household. In other words, parents in NY cannot “steal” what is legally theirs. We believe that New Yorkʼs children deserve the same protections as Californiaʼs children and request that NY Accounts be blocked. For more information, see attached Trust Account Position Statement and CPC Comparison of Laws ~ Trust Fund.
Work & Education Hours
Child Performers Coalition believes for reasons we still have yet to determine, that the DOL recklessly imposed typical SAG/AFTRA film and television contract work hours in a regulation that included theatrical productions ~ yet another stunning example of the abandoned with which the proposed rules were drafted. As we continue to express, the entertainment industry is complex and child performer work hours and education hours are no exception.
The current rule does not speak to work hours. Union contracts and established productions have developed work hours that meet the demands of productions and performers. A one size all approach will not work. We believe that the mediaʼs focus on Broadway productions has made this abundantly clear. Work hours and education hours are link as a child performer cannot work when they are being schooled and vice versa. Further, a child performer cannot do their best work if they are not well rested. It is impossible for the DOL to construct hours without the involvement of the industry and child performer advocates. The DOL has tried and they have failed monumentally. Work and Education Hours are perfectly positioned for a thoughtful exchange of ideas
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and information that a committee system would bring. For more information, see attached CPC Comparison of Laws ~ Work Hours & Reports.
Child Performers Coalition believes that all child performers should have access to proper education while working. § 152 of the Child Performers Education & Trust Act of 2003, the current rule regulating Child Performers, speaks to Educational Requirement: “A child performer shall fulfill educational requirements as set forth in part one of article sixty-five of the education law. If a child performer is unable to meet such educational requirements due to his or her employment schedule, the employer shall be required to comply with subdivision two of this section.”
It is clear from the list of DOL groups and individuals consulted during the “fact gathering” process as well as from the Child Performer Advisory Board (Eating Disorder Committee) that On Location Education, a for-profit company that holds a virtual monopoly on set location education, had an amazing amount of access and potential influence during the language drafting process. It is also clear from the proposed rules that On Location Education (OLE) stands to receive a financial windfall should the rules be adopted due to a substantial increase in education days, mandates that everyone but the teacher and student(s) be barred from the classroom preventing homeschooling or off site tutoring services, increasingly complex permitting process as OLE provides permitting assistance, barriers to prevent wranglers from unionizing as OLE provides wranglers as well as tutors, mandates that set tutors provide more paperwork, a cost certain to be passed onto productions, etc.
OLE’s President Alan Simon, has been a member of SAG’s Young Performers Committee, which is equally stunning. We believe that SAG’s inappropriate blessing of OLE’s presence within the child performer community gave the DOL a false sense of what OLE’s role is to the industry ~ a commercial monopoly on set location. The process with respect to education provisions was altogether tainted. New language working must be drafted with all affected groups sitting in the same room including private and public education institutions, homeschoolers, unions, all forms of productions, Child Performers Coalition & BizParentz Foundations as well as for-profit groups such as OLE. An Education Committee should be formed to develop a reasonable solution to the challenges of providing child performers with their legal right to access to quality education while working. For more information, see attached CPC Comparison of Laws ~ Education.
Child Performers Coalition acknowledges that productions have used children who are members of an established group such as baseball teams, choirs, etc. to perform as this
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established group within film, television and theatrical productions. We appreciate proposed language creating a Group Permit is production friendly. Although we welcome production friendly language, as without productions there would be no child performers, we believe that this loosely defined exception to the NYS Permitting process will have adverse safety and financial consequences for child performers.
Under the proposed language, a production may employee any 20 or more children in any capacity they see fit for two consecutive days at a time under a Group Permit. We are very concerned that children used as Group Permit performers will not have the same level of industry sophistication as typical permitted performers and may not receive payment. Locations and productions have inherent dangers that cannot be anticipated by performers new to the industry. A middle ground should be sought ~ one that allows for use of established groups in the capacity for which they were formed, without the current permitting process requirements. For more information, see attached CPC Certificate of Group Position Statement.
Reality TV Shows
Child Performers Coalition acknowledges the concern for the welfare of children filmed by Reality TV Shows but strongly opposes any expansion of the definition of “child performers” to include children who are filmed by Reality TV productions. We believe that the consequences of such an expanded definition are far reaching and not anticipated the DOL. Documentary Film Production, News, Sports and various Television Broadcasting productions will be adversely impacted by the inclusion of children who are filmed by Reality TV productions. We have asked that a committee be formed to thoughtfully and responsibly evaluate these children and Reality TV productions. We suggest that said any deprived children, including reality TV children, have established protections through the courts and social services.
Production Cost & Headache Increases
Child Performers Coalition believes that without productions there are no performances. We vigorously support all productionʼs right to earn a strong wage for their crew and a healthy return for their investors. A performers ability to do what they love, what they train and dedicate their time to doing, is connected to their ability to work with productions. Although production and performer interests are not always the same, we believe they are aligned the majority of the time.
We also understand that non-union productions will be most affected by any regulations as those productions operate outside of more restrictive union contracts and often do so at a substantial cost savings. Unfortunately, as non-union productions are just that, non-union, they have not properly organized and their concerns have not been heard to date even though opportunities for non-union child performers lay in non-union work.
In order to understand the entertainment industry, one must first acknowledge that it is highly mobile. Save Broadway, television and film productions are able to set up productions in adjoining states such as Connecticut with no child performer laws, in production wealth of friendly states or half way around the world.
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The NYS DOL Mission Statement states: “New York Stateʼs Labor Department vigorously enforces state labor laws to provide a level playing field for law-abiding employers. We work aggressively to ensure a fair wage for all workers and protect the safety and health of workers and the public. We . . . . build a workforce that helps New Yorkʼs businesses compete in todayʼs global economy.”
Clearly, DOLʼs Mission Statement recognizes their role in bolstering “New Yorkʼs [ability to] compete in todayʼs global economy. It is paramount to keep production costs low. Just as necessary is to keep production frustrations to a minimum. Productions can be steeped with frustrations. It is the nature of the business. Producers would never accept more headaches and costs when they can find suitable locations without headaches and costs at the blink of an eye.
The dramatic increase in production costs and responsibilities have been outlined in our five CPC Comparison of Laws Spreadsheets providing comparisons between the current rule and the proposed rule. CPC endorses BizParentzʼs 23 page, highly detailed Letter to the Department of Labor outlining the magnitude of the increase in burdens to production. Industry representatives, such as the Motion Picture Association of America, producers and talent agents, have noted with similar detail the proposed production burdens.
Of particular concern are the following: work hours that do not anticipate industry needs, unnecessary increases in education days, tutor supervision, monitoring of schooling, unworkable DOL notification of use child performer, real threat of child performers permitting delays, orientation training, detailed record keeping and retention of those records, payroll system confusion, employment of “responsible person,” ~ the proposed rules are so extreme that they even mandate that production provide baby food, diapers and cribs for infants. For more information, see attached CPC Comparison of Laws ~ Employer.
Child Performers Coalition believes that, in keeping with California State Law, student films should fall under the work hours and any other safety provisions. Often, student film sets are the most dangerous settings and often use the most inexperienced of child performers. This combination of inexperience begs for some measure of control and safety. Although it would be burdensome to impose the entirety of the employer permitting process on student films, certainly student films can be formally defined and rules governing their behavior be imposed to insure not only the safety of filmmakers but also of child performers as well.
DOL Communication with Affected Groups
Child Performers Coalition believes that the horrid draft of the proposed new rules could have been avoided had the DOL better communicated with affected groups. To that end, we propose that the DOL communicate with Employers and Child Performers through the use the email contacts currently required as part of the permit process.
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Emails regarding DOL anticipated changes to Labor rules, proposed changes to rules, new agency programs such as missing Trust Fund Account information, etc could save New York money while allowing for a more thoughtful process in the future.
CHILD PERFORMERS LEFT WITHOUT REPRESENTATION CHILD PERFORMER ADVOCACY GROUPS
Child Performers Coalition believes that BizParentz Foundation is the Nationʼs recognized leader in Child Performer Advocacy speaking for over 5000 families with child performers. BizParentz is the workhorse of our community providing support to lawmakers and their legislative efforts around the country, educating parents on how best to protect the physical, mental and financial wellbeing of their performer, and providing charitable support to children engaged in the entertainment industry.
Child Performers Coalition endorses BizParentzʼs 23 page, highly detailed Letter to the Department of Labor.
A Minor Consideration, Paul Peterson
Unfortunately, A Minor Consideration, and not BizParentz Foundation, was the only child performer advocacy invited to participate in discussions with the Department of Labor to represent the interests of child performers. If the DOL had taken a moment to read A Minor Considerationʼs web site or google its President and Founder, Paul Petersen, the DOL would have been acutely aware of their status as a fringe element, not aligned with established child performer advocacy.
Paul Petersen is venomously anti-parent and his feeble efforts involve “media spotlight” advocacy ~ find a spotlight and just start talking ~ with reality television and Lindsey Lohan being his primary subjects of interest. He has not spoken publicly and has not organized a single effort to enlist the support of parents in New York or around the country to oppose to the DOLʼs Child Performer proposed rule. Yet, he boosts half a million visitors to his web site with 100,000 visitors last year, a Facebook Fan Page with over 1,000 members and appears to have access to established media outlets.
Child Performers Coalition has reached out to Paul Peterson, first in mid-December, as we did with all groups noted on Mr. Shapiroʼs December 14th email apprising us of a second hearing. We know of at least one other individual who has repeatedly reached out to enlist Mr. Petersen’s to no avail. On January 27th, CPC emailed Mr. Peterson a pointed letter expressing our concern about his organizationʼs blatant absence and again requesting his position statement. The following day, in a strongly worded CPC Newsletter, we again asked those who had been a part of discussions with the DOL to issue public position statements as the time for public commentary was drawing to a close. A Minor Consideration was highlighted.
It was not until February 5th that A Minor Consideration posted a letter to the DOL on its website. Mr. Petersenʼs delusional and repeated insistence that his organization is the
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only child performer advocacy group in the country is found throughout his letter. This statement is completely without merit. We believe Mr. Petersenʼs voice in any discussions with the DOL contributed to placing children in harmʼs way and did nothing to protect child performers. Any discussions with Mr. Petersen and his organization, A Minor Consideration, should be viewed within the context of his advocacy efforts to date and with caution.
AFTRA & SAG Failures
Mr. Petersen claims to have advocated through AFTRAʼs Young Performers Committee yet even AFTRA has failed to enlist their membership and, to our knowledge, first spoke publicly at the January 31st Labor Hearing. In AFTRAʼs Advocacy Letter to the DOL, their legal counsel opposes the formation of an Eating Disorder Committee yet the Child Performers Advisory Board, otherwise known as the Eating Disorder Committee, was formed years ago, has met many times, with their formal recommendations forming the basis of the controversial mental and physical health evaluation certificate requirement. In fact, SAG, AFTRAʼs sister union, endorsed the recommendations by offering to enlist the support of SAGʼs Past President Melissa Gilbert in publicizing them during Fashion Week.
Whereas Paul Petersen was suspiciously missing in action, BizParentz Foundation was in the advocacy trenches. Shortly after the DOL published the proposed rules on November 10thʼs, BizParentz sent in an email to 5,000 of its members. Not only was BizParentz the only advocacy group to sound the alarm about the proposed rule changes in New York, BizParentz was the only group to alert the parents of child performers. SAG, AFTRA and Actorʼs Equity never contacted any of their dues paying child performers members. It is our understanding that these unions have yet to contact their members.
BizParentz & Child Performers Coalition In Action
BizParentz Foundation has spent two months in daily email exchanges and phone conversations with the newly formed Child Performers Coalition providing guidance at every stage and on every issue without fail. With BizParentz help, Child Performers Coalition now has an established web site with six position statements, five comparison spreadsheets, a seven page Letter to the Governor addressing the tainted process, and our Labor Hearing Comments. The CPC web site includes an advocacy page with links to our petition with over 750 signatures, the DOL email to send comments, links to our media coverage, links to the Child Performer Advisory Board Meetings and Labor Hearings video, links to the DOL Child Performer site and specific documents including the proposed rules as well as links to the web site of each group who had had a voice in the process. Since December 19th, Child Performers Coalition has sent ten email newsletters to our members and BizParentz has included our newsletters in emails to their members.
Our respective organizations have been the catalyst for all media coverage including interviews with NY Daily News, NY Times, Backstage, NY1 News and 1010 WINS Radio resulting in two articles in: NY Daily News, Backstage and The Hollywood
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Reporter; two features on NY1 News, a 1010 WINS Radio feature and an article in Newsday, Hollywood Mom and Cynopsis. Other web based news outlets and blogs have picked up the story as well. CPC was the only organization to alert Mayor Bloomberg and the Mayorʼs Office of Film, Theatrical & Broadcasting.
Paul Petersen now suggests in his letter to the Department of Labor that the proposed rules be tabled and an “experienced” industry panel be created. CPC suggests that Child Performers deserve more than the “experience” Paul Petersen has to offer.
Child Performers Coalition Attached Documents
In two short months, Child Performers Coalition, in working with the definitive leader in child performer advocacy in the nation, BizParentz Foundation, has collected over 750 signatures from members of the entertainment community in opposition to the proposed rule. These signatures are attached for review and include hundreds of comments from people who have a keen understanding of how the proposed rules will affect their livelihoods and their children.
Throughout our advocacy effort, we have developed a collection of writings advocating our position and encouraging the involvement of affected groups that we have attached. Our five attached Comparison Spreadsheets help to overcome the DOL’s misleading Summary of Proposed Rules. Save very few provisions, the DOL’s Summary of Proposed Rules failed to note the controversial provisions. In the end, the Summary merely reiterated the current language and provides little, if any, insight into the intent or the impact of the proposed rules. The comparisons speak to changes in Employer Requirements, Child Performer Requirements, Education, Trust Account, Work Hours & Reports as well as Noteworthy Language.
Finally, attached “Letter to the Governor” speaks to the extraordinarily tainted process in which the rule was promulgated: “A deceptive, disingenuous process racked with covert communications, restrictive access and tactics bent on bullying and misleading child performers and an industry that New York and New York City has fought hard to keep.”
This process highlights the need for more inclusion and dialogue between affected groups and rulemakers. It also highlights the need for agency greater oversight by lawmakers to stop an incompetent process from proceeding forward. Child Performers Coalition will continue to work towards a healthy rule ~ one that promotes New York productions and protects child performers.
Kelly Crisp Founder, Child Performers Coalition www.childperformerscoalition.org firstname.lastname@example.org