GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

H	1 

HOUSE BILL 942

Short Title:  Protect Child Performers.  	(Public)

─────────────────────────────────────── 
Sponsors: Representative Goodwin.

─────────────────────────────────────── 
Referred to:  Ways and Means.

─────────────────────────────────────── 

April 7, 1999

A BILL TO BE ENTITLED
AN ACT TO PROVIDE PROTECTION FOR YOUTHS IN THE ENTERTAINMENT INDUSTRY.
The General Assembly of North Carolina enacts:
Section 1. G.S. 95-25.2 is amended by adding a new subdivision to read:
"(5a)	'Entertainment industry' means motion pictures or theatrical productions, or radio or television productions."
Section 2. G.S. 95-25.2 is amended by adding a new subdivision to read:
"(13a)	'Studio teacher' means an individual who:
a.	Holds a current North Carolina teaching certificate;
b.	Is paid by an employer; and
c.	Is responsible for carrying out the duties determined by the Commissioner under G.S. 25.5(g1)(3)."
Section 3.  G.S. 95-25.5 reads as rewritten:
"§ 95-25.5.  Youth employment.
(a)	No youth under 18 years of age shall be employed by any employer in any occupation without a youth employment certificate unless specifically exempted. The Commissioner of Labor shall prescribe regulations for youths and employers concerning the issuance, maintenance and revocation of certificates. Certificates will be issued, subject to review by the Department of Labor, by county directors of social services and such of their designees as are approved by the Commissioner; provided, the Commissioner may by regulation require that the Department of Labor issue certificates for occupations with unusual or unique characteristics.
(a1)	During the regular school term, no youth under 18 years of age who is enrolled in school in grade 12 or lower may be employed between 11 P.M. and 5 A.M. when there is school for the youth the next day. This restriction does not apply to youths 16 and 17 years of age if the employer receives written approval for the youth to work beyond the stated hours from the youth's parent or guardian and from the youth's principal or the principal's designee.
(b)	No youth under 18 years of age may be employed by an employer in any occupation which the United States Department of Labor shall find and by order declare to be hazardous and without exemption under the Fair Labor Standards Act, or in any occupation which the Commissioner of Labor after public hearing shall find and declare to be detrimental to the health and well-being of youths.
(c)	No youth 14 or 15 years of age may be employed by an employer in any occupation except those determined by the United States Department of Labor to be permitted occupations under the Fair Labor Standards Act; provided, such youths may be employed by employers:
(1)	No more than three hours on a day when school is in session for the youth;
(2)	No more than eight hours on a day when school is not in session for the youth;
(3)	Only between 7 A.M. and 7 P.M., except to 9 P.M. during the summer (when school is not in session);
(4)	No more than 40 hours in any one week when school is not in session for the youth;
(5)	No more than 18 hours in any one week when school is in session for the youth; and
(6)	Only outside school hours.
Notwithstanding the above, enrollees in high school apprenticeships or in work experience and career exploration programs as defined under the Fair Labor Standards Act may work up to 23 hours in any one week when school is in session, any portion of which may be during school hours.
(d)	No youth 13 years of age or less may be employed by an employer, except youths 12 and 13 years of age may be employed outside school hours in the distribution of newspapers to the consumer but not more than three hours per day. An employment certificate shall not be required for any youth under 18 years of age engaged in the distribution of newspapers to the consumer outside of school hours.
(e)	No youth under 16 years of age shall be employed for more than five consecutive hours without an interval of at least 30 minutes for rest. No period of less than 30 minutes shall be deemed to interrupt a continuous period of work.
(f)	For any youth 13 years of age or older, the Commissioner may waive any provision of this section and authorize the issuance of an employment certificate when:
(1)	He receives a letter from a social worker, court, probation officer, county department of social services, a letter from the North Carolina Alcohol Beverage Control Commission or school official stating those factors which create a hardship situation and how the best interest of the youth is served by allowing a waiver; and
(2)	He determines that the health or safety of the youth would not be adversely affected; and
(3)	The parent, guardian, or other person standing in loco parentis consents in writing to the proposed employment.
	(g1)	Youths employed as actors, models, or performers in the entertainment industry are exempt from all provisions of this section except that no youth shall be so employed without a youth employment certificate issued by the Department of Labor.  No employer shall employ a youth as an actor, model, or performer in the entertainment industry unless the employer has a written authorization issued by the Department of Labor.  The Commissioner shall adopt rules concerning youth employment certificates, authorizations to employers in the entertainment industry, and the duties of studio teachers.  Rules adopted by the Commissioner under this subsection shall include, but not be limited to, the following requirements:
(1)	Youth employment certificates:
a.	Infants younger than one year old shall be full-term births, shall be full-weight infants, and shall not be employed sooner than 15 days after birth.
b.	Youths between the ages of seven and 18 shall have at least a C average or otherwise demonstrate that they have performed at or above their grade level before being granted an initial certificate. This requirement does not apply if the youth has already obtained a high school diploma.
c.	Youths shall be bound by a studio teacher's decision to refuse to allow the youth to work on a set or location that jeopardizes the youth's health or welfare unless the studio teacher's decision is countermanded by the Commissioner.
d.	The youth and the youth's parent or guardian shall abide by the scale of time limits with compensated overtime and the standards for physically dangerous activity that are included in subdivisions (3) and (4).
(2)	Written authorizations to employers in the entertainment industry:
a.	The employer ensures that a studio teacher shall be present when youths are working in the entertainment industry during the hours that public schools are in session during the regular school year. During other times when youths are employed in the entertainment industry, the rules shall provide for the presence of another official who shall execute the studio teacher's duties. The other official shall have all the noneducational duties and all the rights of a studio teacher.
b.	The employer shall be bound by the studio teacher's decision to refuse to allow a youth to work on a set or location which jeopardizes that youth's health or welfare unless the studio teacher's decision is countermanded by the Commissioner.
c.	The employer shall not discriminate against a studio teacher for carrying out the studio teacher's responsibilities regarding the youth or for filing an oral or written complaint with the Department.
d.	The employer shall not employ a studio teacher found by the Commissioner to have violated the teacher's duty to a youth employee.
e.	The employer shall abide by the scale of time limits with compensated overtime and the standards for physically dangerous activity that are included in subdivisions (3) and (4).
f.	A court-approved contract shall be established, in accordance with Article 6A of Chapter 35A of the General Statutes, for the employment of any youth in the entertainment industry if the employment is likely to result in gross earnings of more than fifteen thousand dollars ($15,000) per year for the youth.
(3)	Time limits for youth employment in the entertainment industry:
a.	Youths of the following ages shall be permitted at the place of employment for the following number of hours, excluding meal periods but including school time, if any:
1.	Less than six years old, six hours;
2.	At least six years old but less than nine years old, eight hours;
3.	At least nine years old but less than 16 years old, nine hours;
4.	At least 16 years old, but less than 18 years old, 10 hours.
b.	The workday for a youth shall begin no earlier than 5:00 a.m. and shall end no later than 10:00 p.m. on evenings before school days. On evenings before nonschool days, the youth's work day shall end no later than 12:30 a.m. on the morning of the non-school day.
c.	If the youth is on location,  the youth shall leave location as soon as reasonably possible following the end of the working day.
d.	Interviews and fittings for children who are attending school shall be held outside of school hours. Those interviews and fittings shall be held not later than 9:00 p.m. At least two adults shall be present at all times during a fitting.
e.	A youth shall not work more than six consecutive days. For this purpose, however, a day of school only or travel only shall not be counted as one of those consecutive days.
f.	The employer shall set the first call at the beginning of the youth's employment and dismissal on the last day of the youth's employment so as to ensure that the youth will have a 12-hour rest period before and at the end of the employment.
(4)	Standards for physically dangerous activity:
a.	The youth's parent or guardian shall provide the employer a certificate signed by a doctor licensed to practice medicine with the State in which the youth resides or is employed stating that the youth has been examined within six months before the date the youth was engaged by the employer and has been found to be physically fit.
b.	Before the youth's first call, the employer shall obtain the written consent of the youth's parent or legal guardian for medical care in the case of an emergency. If the parent or legal guardian, however, refuses to provide that consent because of religious convictions, the employer shall at least obtain written consent for external emergency aid, provided that the obtaining of that consent is not contrary to those religious convictions.
c.	No youth shall be required to work in a situation that places that youth in clear and present danger to life and limb. If the youth believes the youth would be in such danger, the parent or legal guardian may have the studio teacher or equivalent discuss the situation with the youth. If the youth persists in the belief, regardless of its validity, the youth shall not be required to perform in the situation.
d.	When a youth is asked to perform physical, athletic, or acrobatic activity of an extraordinary nature, the youth's parent or guardian shall first be advised of the activity and shall represent that the youth is fully capable of performing the activity. The employer shall comply with reasonable requests for equipment that may be needed for safety reasons.
(5)	Duties of studio teacher:
a.	The studio teacher is responsible for the education of youths under 18 years old and for the health, safety, and welfare of youths under 16 years old during the scope of employment.
b.	The studio teacher shall maintain a time log of the hours worked by each youth under that studio teacher's supervision.
c.	The studio teacher shall refuse to allow a youth to work on a set or location which jeopardizes that youth's health or welfare.  The employer or the youth may immediately appeal the studio teacher's decision to the Commissioner.  The Commissioner shall confirm or countermand the studio teacher's decision within one hour of the appeal.
(h)	Youths employed by an outdoor drama directly in production-related positions such as stagehands, lighting, costumes, properties and special effects are exempt from all provisions of this section except the certificate requirements of subsection (a). Positions such as office workers, ticket takers, ushers and parking lot attendants have no exemption and are subject to all provisions of this section.
(i)	Youths under 18 years of age employed by their parents are exempt from all provisions of this section, except for all of the following:
(1)	The certificate requirements of subsection (a) of this section.
(2)	The prohibition from hazardous or detrimental occupations of subsection (b) of this section.
(3)	The prohibitions of subsection (j)(2) of this section if the youths only work at the establishment when another employee at least 21 years of age is in charge of and present at the licensed premises.
(j)	No person who holds any ABC permit issued pursuant to the provisions of Chapter 18B of the General Statutes for the on-premises sale or consumption of alcoholic beverages, including any mixed beverages, shall employ a youth:
(1)	Under 16 years of age on the premises for any purpose;
(2)	Under 18 years of age to prepare, serve, dispense or sell any alcoholic beverages, including mixed beverages.
(k)	Persons and establishments required to comply with or subject to regulation of child labor under the Fair Labor Standards Act are exempt from all provisions of this section, except the certificate requirements of subsection (a), the provisions of subsection (a1), the prohibition from occupations found and declared to be detrimental by the Commissioner of Labor pursuant to subsection (b), and the prohibitions of subsection (j), and the provisions of subsection (g1). In addition, employment certificates will not be issued if such person's employment will be in violation of the applicable child labor provisions of the Fair Labor Standards Act. Such employers may also be assessed civil penalties pursuant to G.S. 95-25.23 for each violation of the provisions of this section or any regulation issued hereunder from which there is no exemption.
(l)	Notwithstanding any other provision of this section, any youth who holds a North Carolina driver's license valid for the type of driving involved may be assigned as part of his employment to drive an automobile or truck not exceeding 6,000 pounds gross vehicle weight within a 25-mile radius of the principal place of employment, provided that the youth has completed a State-approved driver-education course, and provided that the assignment does not involve the towing of vehicles. "Gross vehicle weight"includes the truck chassis with lubricants, water and full tank or tanks of fuel, plus the weight of the cab or driver's compartment, body and special chassis and body equipment, and payload."
Section 4. Subchapter II of Chapter 35A of the General Statutes is amended by adding a new Article to read:
"ARTICLE 6A.
"Court-Approved Contracts for High-Earning Minors.
"§ 35A-1229.1. Judicial approval.
(a)	What Contracts the Court May Approve. – A contract made by a minor or made by a parent or guardian of a minor, or a contract proposed to be so made, may be approved by a judge of the district court, where the minor is a resident of this State or the services of the minor are to be performed or rendered in this State, where the contract sought to be approved or made subject to approval is one under which:
(1)	The minor is to perform or render artistic or creative services, including, but not limited to, services as an actor, actress, dancer, musician, vocalist, model, stunt person, conductor, or other performing artist.
(2)	The minor is to render services as a participant in professional athletics or semiprofessional athletics, including, but not limited to, track and field, surfing, sailing, diving, boxing, gymnastics, ice skating, wrestling, bicycling, soccer, horse racing, motocross, softball, baseball, football, hockey, basketball, tennis, golf, and jai alai.
(3)	The minor will endorse a product or service, or in any way receive compensation for the use of right of publicity of the minor.
(4)	The minor agrees to purchase, sell, lease, license, transfer, or otherwise exploit literary, musical, or dramatic properties, whether tangible or intangible, or any rights therein for use in motion pictures, television, the production of recordings, the legitimate or living stage, or otherwise in the entertainment field.
(5)	A person is employed to receive compensation from the minor for services to the minor in connection with such performing or athletic services of the minor as a coach, manager, agent, trainer, or to otherwise represent or advise the minor in connection contracts to do so.
(b)	Approval for Existing Contract. – Approval under this section may be sought for a contract or agreement that is already in existence and under which the parties are currently performing.
(c)	Legal Status of Approved Contract by Minor. – If a contract described in subsection (a) is approved by the district court pursuant to the requirements of this Article, the minor may not, either during that minor's minority or upon reaching majority, disaffirm the contract on the ground of minority or assert that the parent or guardian lacked authority to make the contract. A contract modified, amended, or assigned after its approval under this section shall be deemed a new contract. If a contract described by subsection (a) is so approved, all earnings, royalties, or other compensation earned or received by the minor pursuant to the approved contract shall become the property of the minor, subject to the provisions of G.S. 35A-1229.2 and G.S. 35A-1229.3.
(d)	Limitations.
(1)	Approval of the contract pursuant to this section shall not exempt any person from any other law with respect to licenses, consents, or authorizations required for any conduct, employment, use, or exhibition of the minor in this State, nor limit in any manner the discretion of the licensing authority or other persons charged with the administration of such requirements, nor dispense with any other requirement of law relating to the minor.
(2)	Approval of a contract pursuant to this section does not remove the disability of nonage for any other contract with the same minor if that contract is not approved by the court pursuant to this section, nor is the disability of nonage removed generally for the minor, nor is the minor emancipated for any purpose or contract other than the performance of contracts approved pursuant to this section.
(3)	No contract shall be approved that provides for an employment, use, or exhibition of the minor, within or without the State, which is prohibited by law and in particular by any federal or State child labor law, and could not be licensed to take place in this State.
(4)	No contract shall be approved by the court unless:
a.	A written acquiescence to the contract by the parent or parents having custody, or other person having custody of the minor, is filed in the proceeding;
b.	Written approval is given by the guardian ad litem appointed by the court in this proceeding; or
c.	The court finds that the minor is emancipated.
(5)	No contract shall be approved if the term during which the minor is to perform or render services or during which a person is employed to render services to the minor, including any extensions thereof by option or otherwise, extends for a period of more than three years from the date or approval of the contract. If the contract contains any other covenant or condition which extends beyond three years, the contract may be approved if found to be reasonable and for such period as the court may determine.
(6)	If the court that has approved a contract pursuant to this section shall find that the physical or mental well-being of the minor is being impaired by the performance of the contract or that the contract is in violation of any child labor law, the court may, at any time during the term of the contract during which services are to be performed by the minor or rendered by or to the minor or during the term of any other covenant or condition of the contract, either revoke its approval of the contract or declare such approval revoked unless a modification of the contract which the court finds to be appropriate in the circumstances is approved by order of the court. Application for an order pursuant to this subdivision may be made by the minor, by that minor's parent or parents or guardian, by a guardian ad litem appointed for the purpose by the court on its own motion, or by the Commissioner of Labor. The order granting or denying the application shall be made after hearing, upon notice to the parties to the proceeding in which the contract was approved, given in the manner the court directs. Revocation of the approval of the contract shall not affect any right of action existing at the date of the revocation, except that the court may determine that a refusal to perform on the ground of impairment of the well-being of the minor was justified.
"§ 35A-1229.2. Procedure for court approval of contract; appointment of guardian ad litem.
(a)	Who May Commence a Proceeding. – A proceeding for approval of a contract described by G.S. 35A-1229.1 shall be commenced by verified petition by:
(1)	Either natural parent of the minor, or other person having custody of the minor;
(2)	A guardian of estate or property of the minor;
(3)	The minor;
(4)	Any party to the contract sought to be approved; or
(5)	Any other interested person.
(b)	Where a Proceeding May be Commenced. – If a guardian of the estate or person has been appointed and qualified in this State, the petition shall be made to the district court in the district in which the guardian of the estate or person was appointed or in which that guardian qualified. If there is no such guardian, the petition shall be filed with the district court in the district having guardianship jurisdiction, in the district where the minor resides, or if the minor is not a resident of this State, in any county in which the minor is to be employed under the contract.
(c)	Who Shall Be Notified. – The following persons, other than one who is the petitioner or who joins in the petition, shall be served with the petition by formal notice as provided by North Carolina Probate Rules:
(1)	The minor, if over the age of 14 years;
(2)	The minor's guardian, if any, whether or not appointed or qualified in this State;
(3)	Each party to the contract;
(4)	The parents of the minor;
(5)	Any person having care or custody of the minor;
(6)	The person with whom the minor resides, if other than a parent or guardian; and
(7)	The Commissioner of Labor.
(d)	Timing of Notice. – Formal notice shall be made at least 30 days before the time at which the petition is set to be heard, unless the court shall fix a shorter time upon cause shown.
(e)	Contents of Petition. – The petition shall have annexed a complete copy of the contract or proposed contract and shall set forth:
(1)	The full name, residence, and date of birth of the minor.
(2)	The name and residence of any living parent of the minor, the name and residence of the person who has care and custody of the minor, and the name and residence of the person with whom the minor resides.
(3)	Whether the minor is a resident of the State or, if the minor is not a resident, that the petition is for approval of a contract or to make a contract subject to court approval for performance or rendering of services by the minor and the place in the State where the services are to be performed or rendered.
(4)	The brief statement as to the minor's employment and compensation under the contract or proposed contract.
(5)	The statement that the term of the contract during which the minor is to perform or render services or during which a person is employed to render services to the minor can in no event extend for a period of more than three years from the date of the approval of the contract.
(6)	An enumeration of any other covenants or conditions contained in the contract which extend beyond the three years or a statement that the contract contains no such other covenants or conditions.
(7)	A schedule showing the minor's estimated gross earnings, estimated outlays, and estimated net earnings as defined in G.S. 35A-1229.3.
(8)	The interest of the petitioner in the contract or proposed contract or in the minor's performance under it.
(9)	Other facts known by the petitioner regarding the minor and the minor's family that show whether or not the contract is reasonable and provident and for the best interests of the minor, including whether the minor has had at any time a guardian appointed by the court of any jurisdiction, and the facts with respect to any previous application for the relief sought or whether similar relief has been sought with respect to the minor.
(f)	Appointment of Guardian Ad Litem. – At any time after the filing of the petition, the court, if it deems it advisable, may appoint a guardian ad litem, pursuant to G.S. 1A-1, Rule 17, Rules of Civil Procedure, to represent the interests of the minor. The court shall appoint a guardian ad litem as to any contract where the parent or guardian will receive remuneration or financial gain from the performance of the contract or has any other conflict of interest with the minor. The court, in determining whether to appoint a guardian ad litem, may consider the following criteria:
(1)	The length of time the exclusive services of the minor are required.
(2)	Whether the gross earnings of the minor under the contract are either contingent or unknown.
(3)	Whether the gross earnings of the minor under the contract are in excess of fifteen thousand dollars ($15,000).
(g)	Compensation for Guardian Ad Litem. – The guardian ad litem shall be entitled to reasonable compensation. The court shall have the power to determine the amount of the reasonable compensation paid to the guardian ad litem and may determine which party shall be responsible for the fee, whether the fee shall be paid from the earnings of the minor pursuant to the contract sought to be approved, or may apportion the fee between the parties to the proceedings.
(h)	Attendance by Minor. – The minor, unless excused by the court for good cause shown, shall attend personally before the court upon the hearing of the petition.
(i)	Disposition of the Hearing. – The court may, by order:
(1)	Determine any issue arising from the proceedings or proof and required to be determined for final disposition of the matter, including issues with respect to the age or emancipation of the minor.
(2)	Approve or disapprove the contract or proposed contract.
(3)	Approve the contract upon such conditions, with respect to modification of the terms thereof or otherwise, as it shall determine.
(4)	Appoint a guardian of the estate to hold the earnings of the minor as provided by Article 6 of Chapter 35A of the General Statutes.
"§ 35A-1229.3. Guardianship of the estate.
(a)	Guardianship Plan as Condition for Approval of Contract. – The court may withhold its approval of the contract sought to be approved under G.S. 35A-1229.1 and G.S. 35A-1229.2 until the filing of a guardianship plan by the parents or legal guardian of the minor, which shall provide that a part of the minor's net earnings for services performed or rendered during the term of the contract be set aside and saved for the minor under a guardianship of the estate as provided in this section, until the minor attains majority or until further order of the court.
(b)	Amount to Be Set Aside. – The court shall fix the amount or proportion to be set aside as it deems for the best interests of the minor, and the amount or proportion so fixed may, upon subsequent application, be modified in the discretion of the court, within the limits of the consent given at the time the contract was approved. In fixing the amount or proportion, the court shall give consideration to financial circumstances of the parent of the minor and to the needs of their other children or, if the minor has any dependents, to the needs of the minor's family. If the minor has no dependents, then the court shall not require the setting aside of an amount or proportion in excess of two-thirds of the net earnings of the minor.
(c)	Definition of 'Net Earnings.' – For the purposes of this Article, 'net earnings' means the gross earnings received for services performed or rendered by the minor during the term of the contract, less:
(1)	All sums required by law to be paid as taxes to any government or subdivision thereof with respect to or by reason of such earnings.
(2)	Reasonable sums to be expended for the support, care, education, coaching, training, and professional management of the minor.
(3)	Reasonable fees and expenses paid or to be paid in connection with the proceeding for approval, the contract, and its performance.
(d)	Protection for Creditors of Others. – Notwithstanding anything set forth in this Article, the creditors of any person, other than creditors of the minor, shall not be entitled to the earnings of the minor.
(e)	Appointment of Guardian of the Estate. – If a guardian of the estate of the minor has been appointed or qualified in this State, that guardian shall receive and hold any net earnings directed by the court to be set aside for the minor as provided by subsection (a) of this section and by Article 6 regarding guardians of the estate. In any other case a guardian of the estate shall be appointed for the purpose of holding the net earnings of the minor pursuant to the contract as directed by the court pursuant to subsection (a) of this section and thereafter shall hold said earnings as a guardian of the estate pursuant to Article 6.
(f)	Disclosure of Interest. – A parent, guardian, or other petitioner is not ineligible to be appointed as guardian of the estate or earnings of a minor derived from a contract approved pursuant to this Article by reason of that person's interest in any part of the minor's earnings under the contract or proposed contract or by reason of the fact that that person is a party to or is otherwise interested in the contract or in the minor's performance under the contract, provided that interest is fully disclosed to the court."
Section 5. The State Board of Education shall adopt rules clarifying when a student's absence due to employment as an actor or performer under G.S. 95-25.5(g1) may constitute an excused absence.
Section 6.  This act becomes effective January 1, 2000.