Child Performers Coalition (CPC), along with BizParentz Foundation, has led the charge to hold the New York State Department of Labor (DOL) accountable for their disastrous proposed changes to their regulations affecting 6,000 child performers and the 500 productions that employee children. We continue to say that Labor has taken bunch of bad ideas and written them down. Unfortunately, without common sense changes, those bad ideas will soon become bad law. We believe the NYS DOL was reckless, incompetent and rouge in drafting these new regulations ~ refusing to involve child performers in the process and oblivious to the nuances of the entertainment industry. Again, if you donʼt understand an industry, donʼt regulate it. If you arenʼt willing to learn about an industry, donʼt regulate it either.
In filing our FOIL Request, we set out to prove that the NYS Department of Labor did a poor job in developing the proposed changes to their regulations and shed some light on why the process broke down. Based on the lack of evidence to the contrary, we are confident that the proposed regulations are little more than a shot in the dark, a thoughtless attempt to regulate an industry without a basic understanding of the nuances of that industry. A scarcity of leadership and follow through, lack of stakeholder inclusion, a sophomoric approach to information gathering and processing, reliance on unchallenged anecdotal evidence, and little attention to detail resulted in a set of regulations that, if adopted, will make New York the most dangerous state for child performers and the most restrictive for productions.
On December 20, 2010, CPC filed a Freedom of Information Law (FOIL) Request to gain some perspective, some insight into the DOLʼs motivation, the voices they were listening to, and what steps they took to support their Regulatory Impact Statement (RIS) ~ a document that insures that an agency behaves with the upmost prudence in adopting regulations. About a week ago, we received 1035 pages of FOIL discovery. We completed the review of every document and found the production of documents was sloppy (failed to include their own Board Recommendations), not on point with our request, and was not indicative of a thoughtful regulatory process.
Our Newsletter is read by an assortment of concerned parents and child performers, entertainment industry representatives, companies that support the industry, lawmakers and their staff, media outlets and people who believe that New Yorker must maintain its position as a world leader in entertainment. New Yorkers, and those who work in New York, deserve the best regulations and protections. We apologize for the length of this newsletter ~ it could have been longer.
Industry Specific Work Hours
Before we dive into “who knew what and when,” many of you have expressed concern about industry specific work hours. Several media outlets have asked ~ “If the Department of Labor has its way, will Billy Elliot be played by a 40 year old?” The FOIL request did shed a little light on the child performer work hours issue. We all wanted to know how such an obvious misstep took place?
The DOL held talks with Billy Elliotʼs Company Manager and there is indication that Billy Elliotʼs Wrangler was included in those talks. Other Broadway productions as well as The Broadway League and Actorsʼ Equity were included in discussions as well. The discovery includes two articles highlighting the life of a child performer on broadway. Labor received multiple warnings from multiple “stakeholders” including SAG, and others, regarding industry specific work hours. Recklessly, Labor either disregarded those discussions and warnings or, due to poor management, failed to remember the issue when drafting the final language. So, what else did they miss or misjudge . . . Letʼs find out!
What Did We Ask For
First, a bit of housekeeping ~ What did we ask for: “. . . documents supporting the Regulatory Impact Statement (RIS) prepared by your agency [DOL] as required by the New York State Administrative Procedure Act (SAPA) . . . ” “To that end, I respectfully request documents in support of your agencies RIS including, but not limited to, research, reports, studies, data collection, analysis, interviews and alternatives explored. In addition, and of particular interest, are the following Cost-Benefit Assessment issues: Cost to Child Performers; Cost to Employers; Cost to Off-Site Education Tutors; Cost to NY Economy; Cost to NYC Economy; Cost to Department of Labor.”
Specifically, CPC requested the following documents: Physician Certificate Form; Employer Certificate of Group Eligibility Form; Procedures to Protect Against HIPAA Violations; Eating Disorder Guidelines to be reviewed by child performer parents. It was obvious, the DOL wasnʼt interested in providing us what we believe to be reasonable access to information. On March 25th, the DOL advised CPC by letter that: “Portions of some records to which access is being granted have been partially redacted pursuant to Public Officers Law §87(2)(b)(protection against unwarranted invasion of personal privacy), §89(2)(b), §96(1)(personal privacy protection), and Public Officers Law §87(2)(g)(inter-agency or intra-agency materials that are not statistical or factual tabulations or data, instructions to staff that affect the public, final agency policy or determinations, or external audits). Also, please be advised that access to other records is hereby denied pursuant to Public Officers Law §87(2)(g).”
What Did We Learn
We learned that Commissioner Colleen Gardner (then Associate Commissioner for Labor Affairs) loosely headed up much of the effort, abet sporadically, before assuming her role as Labor Commissioner ~ She gathered information and forward it to other Labor folks. She did this a lot. Again, no clear leadership effort so one can assume that the loudest voice is the leader.
We learned it appears as though there was not a single point person in charge of the end product ~ a thoughtful, reasonable regulation. At least eight other Labor employees were part of the team with no defined leadership ~ at times, it appears to be Gardner acts as the leader and other times Maria Colavito, Shapiro and McCue, etc.. Public Officers Law may prevent discovery on that point but the lack of leadership appears to be a huge issue. Most of the DOL employees noted in the emails provided have been involved in child performer regulation for many, many years.
We learned about half of the FOIL documents provided are circa 2007 through 2003. The only SAG document is a 2007 Constitution and By-Laws document. 2009 documents, including 2009 Contracts for Theatrical/Television, Film and Commercial, are available on the SAG website. Either DOL did not review SAGʼs new language or did not provide them in the FOIL discovery due to a sloppy discovery process.
We learned that the DOL did not do a reasonable search for FOIL documents as they failed to provide their now infamous Child Performer Advisory Board Recommendations (Eating Disorder Committee).
We learned that the Department of Labor took no steps to understand the impact of their proposed changes to child performers, film theatrical and broadcasting productions, companies that support these constituencies, the economy of NYC and NYS or to the insure that the impact would be minimal or reasonable. Not one report of any kind that addressed impact was provided. No documents referenced Cost-Benefit Assessment Issues, to wit: Cost to Child Performers; Cost to Employers; Cost to Off- Site Education Tutors; Cost to NY Economy; Cost to NYC Economy; Cost to Department of Labor.
We learned that Labor may absolutely have the power to regulate models, second company dancers using the current regulation language ~ even children in reality television. The DOL has a lengthy legal memo from Californiaʼs DOL that defines children in reality television has child performers, subject to permitting and child performer regulations.
We learned that about 60% of the documents provided were emails from a “concerned parent advocate” whose voice rose to prominence within the DOL because she was the vocal, irrespective of any constituency, beginning around 2002. In the emails, she is acutely concerned about children in reality television, unexcused absences and day one education.
We learned that children appearing in reality television consumed a disproportionate amount of the DOLʼs time. Discovery included a 58 page, Birmingham, Alabama Cumberland State Law Review Article titled “Jon & Kate Plus the State: Why Congress Should Protect Children in Realty Programming.”
We learned that the DOL provided SAG with gatekeeper status: “Are there any other unions that would be affected by child performer regs? Are there any additional individuals within the unions already mentioned that should be invited?” “Of course, we also are open to additional suggestions from stakeholders” “The Department is seeking input from advocacy groups and industry representatives with regard to issues and topics to be covered in the regulations.” Why wasnʼt BizParentz Foundation, an advocate organization extremely familiar to SAG, invited to be part of the conversation?
We learned that DOL lawyers, Shapiro and Colavito, found BizParentz through a google search and noted ~ “definitive and nationally recognized child performer advocacy group” but failed to make contact and, instead, allowed Paul Petersen, of A Minor Consideration, to provide input and engage in conversations. In an email, Petersen states he will provide a State-By-State analysis of child performer laws. There is no indication such a document was ever provided. Petersenʼs short position statement was drafted February 5, 2011. BizParentz Foundationʼs position statement was 23 pages and noted that they are frequently called upon to provide their expertise to states seeking to regulate child performers or enact laws protecting child performers while promoting production.
We learned that SAG, along with Labor Counselʼs Colavito, commented directly on drafts of regulations dated “2006”. An email also reflects that SAG commented on a 2009 draft. The 2009 draft with comments was referenced but was not included in the discovery. It is possible that there was only one document, the 2006 draft, which may have been mismarked. It is difficult to sort out.
We learned that SAG, and others, warned the DOL about the need for industry specific work hours.
We learned Laborʼs “Stakeholders” Meeting Agenda failed to include any discussion of impact:
“Child Performers Regulation in New York State. Stakeholders” Agenda:
- Overview of steps Taken by Department to Date
- Departmentʼs working timeline
- Work Permits/Certificates of Eligibility to Hire
- Child Performer Trust Accounts
Issues for Consideration by Key
- Hours of Work
- Child Performer Health and Safety ~ Physical and Mental Health Issues, Should Exams be required?
- Educational Requirements
- Other Issues? We learned that there are no documents referencing any exchange of information with the NYS Comptroller’s Office who, for years, has been unduly burdened with control of unclaimed Trust Account monies as a result of a huge loophole in the permitting process. California has closed this loophole by mandating that work permits are only valid when Trust Account Information is attached. A simple fix that the DOL either failed to appreciate or missed due to poor leadership.
We learned that in February 2010, Labor spoke with an unnamed male doctor (short name redacted) at great length about psychological issues, reality tv, reasonable safeguards and annual mental and physical exams. The unnamed doctor “is a big proponent of yearly exams. . . . “: “The [examining] doctor should look for evidence of abuse (sexual, emotional, physical and drug abuse). Have random drug testing [also concerned about steroid use] for children 13 years and older.” A release of the doctorʼs name would allow for proper vetting as his thoughts have been incorporated into the proposed language.
We learned that Universal was mad at Labor for their failure to notify them of possible changes and include them in the process back in 2002/2003. In addition, many folks were taken aback when day one education, excused absences remedies and blocked Trust Fund Accounts were not provided in the Child Performer Education & Trust Account Act of 2003.
We learned that the DOL does not have guidelines in place to protect against HIPAA Violations. In the DOLʼs FAQʼs they state “The State Personal Privacy Protection Act, among other others, requires that we keep certain personal information received from the public confidential unless it is required to be disclosed under the law. Confidential information provided to us under the proposed regulations such as social security numbers, passport information and the like would fall under this statute and could not be released by the Department.” Note that the DOL acknowledges that certain information may be disclosed if it is “required to be disclosed under the law.” Also, note that the DOL fails to mention medical history in the laundry list of “confidential” items . Finally, the DOL failed to redact several items of personal information provided in the FOIL request and that technology exists to allow redacted information to be viewed.
**Per the Child Performer Advisory Board Hearing Video, safeguards to HIPAA Violations were on the agenda but the GORR representative who controlled the agenda said that safeguards were in place because performers were already subject to health screens. **There has never been a permit requirement mandating screenings of any kind.
We learned that child performers can never be afforded excused absences from school, with or without a set tutor, unless lawmakers in each state pass a law affording them that right. Local school districts within each state define excused absences.
We learned that Labor only researched the laws in the following states or countries: New Mexico, Louisiana, New Jersey, California (some analysis of California Law), Vancouver, Manitoba, Ontario.
We learned that Trust Accounts are not blocked because the 2003 Law provided for UMTA Accounts and not traditional California Coogan Accounts. By definition, UMTA Accounts are not blocked and New York banks do not provide Coogan style accounts. The DOL mandates that child performers open Trust Accounts in New York. As no language mandating blocked accounts was provided in the 2003 Law, New York banks could not or would not provided blocked accounts.
We learned who participated in conversations with the DOL. An email from Commissioner Colleen Gardener (then Associate Commissioner for Labor Affairs) to Laborʼs: Maria Colavito, Joan Connell, Terri Gerstein, Lynne Papazian, Carmine Ruberto, Jeffrey Shapiro. GORR: Gregory Wasserbach, Wendy Burns, S. McPherson: “I have attached a list of stakeholders that we have met with over the past two months for input on child performer regulations. . .
Pat Swinney Kaufman, Executive Director, NYS Governorʼs Office for Motion Picture and Television Development; Jerry Stoeffhaas, Deputy Director, NYS Governorʼs Office for Motion Picture and Television Development; Thomas Ferrugia, Director of Government Relations; The Broadway League Mary McColl, Director of Labor Relations; Alan Simon, President, On Location Education, Inc. ; Steve Greer, Company Manager for Phantom of the Opera; Alan Wasser Associates; Gregg Arst, Company Manager for Billy Elliot; Nina Lannan Associates; Brooks Parsons, Chief Financial Officer, NYC Ballet ; Nicole Taney, Company Manager, NYC Ballet; Elizabeth Colombo, Attorney At Law, Wilson Elser Moskowitz Edleman & Dicker, LLP (represents Alliance of Resident Theatres, NYC); Ann Hackett, NYC Metropolitan Opera House; Ed Frye, AFTRA ; David Salvadore, AFTRA; Nancy Fox, Screen Actors Guild ;Jeffrey Bennett, Screen Actors Guild ; Pearl Brady, Business Representative, Actorʼs Equity Association; Rachel Laforest, Actorʼs Equity Association ; Mario Cilento, NYS AFL-CIO ; Melissa Patack, Motion Picture Association of America; David Lansky, America Ballet Theatre ; Mary Kopley, Bogdan, Lasky & Kopley (lobbyist on behalf of MPAA)
List of MPAA Members who were invited by MPAA to provide input on child performers regulations includes Fox, NBC Universal, Sony, Paramount, Warner Bros, Disney, BET, MTV and lobbyist Mary Kopley.
We learned that Paul Petersen, A Minor Consideration, offered his friends, Dr. Jenn Berman and Dr. Ron Zodkevitch, as experts. Labor spoke with them as they are included within the 2010 Registry notice.
We learned that the majority of “stakeholders” that were invited to participate in discussions were production companies.
Where Do We Go From Here
Child Performers Coalition believes that the majority of the FOIL discovery sheds little, if any, light on our original request as the majority of documents are emails from a “concerned parent advocate” regarding reality television and, to a lesser extent, excused absences and day one education. No document specifically speaks in support of the Regulatory Impact Statement as our FOIL request directed.
At least three Governorʼs Office of Regulatory Reform (GORR) employees were intimately aware of the process as they were copied on multiple DOL emails. GORR critical provides agency oversight. Counsel to Labor, Jeffrey Shapiro writes ~ “To follow up on my letter to you of August 3, 2010, the Department of Labor has made its formal submission of draft proposed regulations to the Governorʼs Office of Regulatory Reform (GORR) on August 24, 2010. Once GORR has approved the draft, it will be submitted to the Governorʼs Office for approval. Once that is done, the draft will be . . . published in the State Register . . .”
In November/December of 2010, this rulemaking process was noted on the DOL web site. CPC retained a copy but the DOL has since removed that document and continues to assert that it has no oversight beyond the initial approval. CPC believes the intent of the process was to provide the GORR and Governorʼs Office with oversight as a check and balance to the extreme “lawmaking” power granted by the State Assembly to Agencies. Per that DOL document, “If substantial changes are required, submits a revised notice for publication in the Register, initiating another (30-day comment period.” [required, “DOL” submits ?]
CPC believes with “substantial changes” comes oversight and scrutiny by the GORR and the Governorʼs Office. CPC will demand that this oversight is provided by GORR and the Governorʼs Office if the DOL either, fails to make the critical changes we have articulated, or makes “substantial changes” that do not affect these critical changes. We continue to assert, as we did in our letter to Governor Patterson, that the process was tainted by GORRʼs intimate involvement.
Question: How can the GORR properly provide oversight when they are part of the process to which they are providing the oversight ~ the gatekeeper role? **GORR also controlled the Child Performer Advisory Board Meetingʼs Agenda.
Labor continues to go it alone, disregarding lawmakers requests to engage in “negotiated rulemaking” with all affected parties. Many stakeholders, including CPC, have asked that an inclusive advisory board be established that brings together industry leaders in one room to sort through and draft reasonable regulations. We will continue to reach out to game changers, lawmakers, the Governor, the media, the families of child performers and the entertainment industry. We ask that a reasonable regulation, one that protects the mental, physical and financial health of children and encourages film, theatrical and broadcasting in New York is adopted.
If you have any questions, have comments or would like more information, we would love to hear from you. Please check out our website at www.childperformerscoalition.org and email us at firstname.lastname@example.org.