Hiring Minors for Photo Shoots Isn’t Child’s Play

Does your magazine, advertising agency, or film or television production company work with child models in photo shoots or videography? If so, have you budgeted time for snack and study breaks? Have you considered whether you need to arrange for nurses to be present? Those are among the questions you must now ask, as the result of a recent change to New York law that brings models under the age of 18 under the protection of the state Department of Labor’s child labor laws – and New York’s new approach is part of a nationwide trend.  Most states have adopted laws regulating the employment of child performers, and many of the laws apply to the use of child models and child actors in photo shoots. For example, Pennsylvania’s law governing child performers, enacted in 2012, explicitly applies to child models.  It requires that those conducting the photo shoot obtain third-party certification that the child’s work will not interfere with her academic studies, and that the child model obtain a work permit.  Massachusetts imposes strict age and hour restrictions for work by minors, and in many cases requires court approval before children may be exhibited in performances on radio, TV, or movies. New York’s new law, DOL § 186, took effect November 22, 2013, and applies to a range of child performers.  It imposes additional paperwork requirements and, in some cases, compels magazines and others employing child performers to provide special accommodations. Even if your company is not based in New York, some of New York’s requirements will apply if you hire models that live in New York or if your shoot takes place there. Employers that do not comply with these requirements may face fines of up to $1,000 for their first violation, $2,000 for their second violation, and $3,000 for their third violation. After a third violation, employers may be barred from employing child models altogether – not to mention the negative publicity of allegedly mistreating children. If you engage in photo shoots with minors in New York, we suggest you plan ahead, staff the photo shoot appropriately, and be sure to allow enough time and physical space for the project. Plan ahead: To help keep your company out of trouble, make sure that your paperwork is in order.  Here are five steps you should take in advance of a scheduled shoot in New York in order to comply with the updated law.

  1. Obtain a Certificate of Eligibility. You must obtain a Certificate of Eligibility before employing a child model. To do so, visit the New York State Department of Labor website to complete an Application for a Certificate of Eligibility to Employ Child Performers. Certificates are good for three years, and must be renewed no later than 30 days prior to expiration.
  2. Request to see the model’s Child Performer Permit. If you employ a child model for an individual performance (not as part of a background scene), you should ensure that the child holds a Child Performer Permit. To obtain such a permit, the child has to provide: (a) her school’s certification of her satisfactory academic performance, (b) her physician’s certification of her physical fitness, and (c) trust account information (see below).  Because the certifications and trust information may take some time to gather, it’s a good idea to start the process early, especially if you are dealing with a child model that is new to the business.
  3. Obtain an Emergency Contact and Permission Form. Prior to the shoot, you must also obtain emergency contact information from a parent or guardian, an authorization for emergency medical treatment, and the parent’s permission for the child’s performance.
  4. Make sure a financial trust has been set up.  A child model’s parent or guardian must set up a trust account for the child, and ensure that at least 15 percent of the child model’s earnings go into that account. Check with the child’s parent or guardian to verify that the trust has been set up and to make sure you have the information necessary to transfer payments into that account.
  5. File a Notice of Use.  At least two days before the shoot, you must file a Notice of Use with the Department of Labor. The notice is a one-page document, and requires basic contact information for your company and the child model.

Staff appropriately.  Make sure to arrange for a “responsible person” and a pediatric nurse to be present at the shoot, if necessary. 

  1. Designate a responsible person. You must make sure that someone 18 or over is present at the shoot to supervise the child model. This person can be the child’s parent or guardian, or it can be another adult.  The required ratio of responsible persons to child models depends on the ages of the children.
  2. Determine whether you need to hire a nurse.  If you employ a child model who is less than six months old, you must have a registered nurse with significant pediatric experience at the shoot. The required ratio of nurses to child models depends on the ages of the children.

Budget time and designate a space for breaks.  Familiarize yourself with the restrictions on the number of hours the child model may work, and the requirements for breaks. Keep in mind the following as you schedule the shoot:

  1. Limit Hours. The number of total hours, and of consecutive hours, that child models may work depends on their age and, if they are old enough to attend school, whether school is in session. For example, children between six and eight years of age may not spend more than eight hours on set.  They may not begin before 5 a.m., and may not stay later than 10 p.m. on school nights and 12:30 a.m. on other nights. Of the eight hours they may spend on set, children in this age group may not work for more than a total of four hours. For more information about restrictions on hours, see the DOL’s Child Performer Permitted Working Hours worksheet.
  2. Provide Food and Rest. You must allow for snack time and at least ten minutes of rest for every four hours a child model works. You must also provide a safe, clean, secure, and age-appropriate space for a child model to relax and eat.
  3. Accommodate Education. If you employ a child model who is required to be enrolled in school, you must allow time and space for studying and, under some circumstances, you must also provide a teacher for the child.

If you have questions about complying with the child performer rules in your state, please contact Asya Calixto, a lawyer in Prince Lobel’s Media Law Practice Group and the author of this alert, or Rob Bertsche, chair of Prince Lobel’s Media Law Practice Group. You can reach Asya at 617 456 8110 or acalixto@PrinceLobel.com, and Rob at 617 456 8018 or rbertsche@PrinceLobel.com.