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This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 3 hours of total CLE credit. Of these, 0 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credittoward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.

Third AnnuAl FAshion lAw updATe

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

presented on Tuesday, September 17, 2013.

P r o g r A m C o - s P o N s o r :

NYCLA’s Fashion Law Subcommittee

P r o g r A m C h A I r :

Joseph Murphy Esq., Fashion/Patent Attorney, Law Offices of Joseph Murphy

s P E C I A L K E Y N o t E s P E A K E r :

Prof. Susan Scafidi, Director, Fashion Law Institute, Fordham University School of Law

P r o g r A m F A C u L t Y :

Prof. Guillermo Jimenez, Professor, International Trade, Fashion Institute of Technology Hilary Jochmans, Jochmans Consulting, LLC

Stan Sherwood, Esq., CPA, Sherwood Associates

3 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional & Non-Transitional credit hours: 1 Skills; 2 PP

Information Regarding CLE Credits and Certification

Third Annual Fashion Law Update September 17, 2013; 6:00 PM to 9:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Third Annual Fashion Law Update

September 17, 2013 6:00 PM-9:00 PM

AGENDA

Special Keynote Speaker: Prof. Susan Scafidi, Director, Fashion Law Institute,

Fordham University School of Law Panelists: Prof. Guillermo Jimenez, Professor of International Trade at

the Fashion Institute of Technology Hilary Jochmans, Esq. President of Jochmans Consulting, LLC. Stan Sherwood, Esq., CPA, Sherwood Associates

5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introductions and Announcements 6:10 PM – 9:00 PM Discussion

Professor Susan Scafidi Fashion Law Institute

at Fordham

Keynote address:

Working It: Fashion Law's New Focus

on Models, Interns, Garment Workers, and Other Behind-the-Seams Issues

presented to

New York County Lawyers’ Association 17 September 2013

CLE materials:

Accord on Fire and Building Safety in Bangladesh, May 13, 2012. 1 Staying engaged: A Sustainability Compact for continuous improvements in labour 7 rights and factory safety in the Ready-Made Garment and Knitwear Industry in Bangladesh, July 8, 2013. U.S. Department of Labor, Fact Sheet #71: Internship Programs Under the Fair Labor 15 Standards Act, April 2010. Act extending New York State Labor Law Article 4-A, Employment and Education 17 of Child Performers, to include models (passed by the New York State Assembly June 2013; awaiting governor’s signature). Susan Scafidi, Designers’ Guide to Pending New York Law on Models Under Age 18, 18 June 18, 2013. New York State Department of Labor regulations on child performers. 21 Israeli law on weight restriction in the modeling industry, effective January 1, 2013 54 (unofficial translation).

Professor Susan Scafidi serves as academic director of the Fashion Law Institute, a nonprofit based at Fordham Law School and the world's first center dedicated to legal issues involving the fashion industry. She is also the first professor ever to offer a course in Fashion Law and is internationally recognized for her expertise and her leadership in establishing the field. She has testified regarding the proposed extension of U.S. legal protection to fashion designs and continues to work actively with members of Congress and the fashion industry on the proposed Innovative Design Protection and Piracy Prevention Act (formerly the Design Piracy Prohibition Act) and other issues. Prior to establishing the Fashion Law Institute with the assistance of the Council of Fashion Designers of America and its president, Diane von Furstenberg, Professor Scafidi was a tenured member of both the law and history faculties at SMU and also taught at a number of other law schools, including Yale and Georgetown. After attending Duke University and the Yale Law School, she pursued graduate study in legal history at Berkeley and the University of Chicago and clerked for Judge Morris S. Arnold of the Eighth Circuit Court of Appeals. Professor Scafidi is the author of the book Who Owns Culture? Appropriation and Authenticity in American Law, as well as numerous articles in the areas of intellectual property, cultural property, and of course fashion law. She also maintains a website on fashion law, Counterfeit Chic, which has been recognized as one of the ABA's top 100 legal blogs.

MAY 13, 2012

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Accord on Fire and Building Safety in Bangladesh

The undersigned parties are committed to the goal of a safe and sustainable Bangladeshi Ready-Made Garment ("RMG") industry in which no worker needs to fear fires, building collapses, or other accidents that could be prevented with reasonable health and safety measures.

The signatories to this Agreement agree to establish a fire and building safety program in Bangladesh for a period of five years.

The programme will build on the National Action Plan on Fire Safety (NAP), which expressly welcomes the development and implementation by any stakeholder of any other activities that would constitute a meaningful contribution to improving fire safety in Bangladesh. The signatories commit to align this programme and its activities with the NAP and to ensure a close collaboration, including for example by establishing common programme, liaison and advisory structures.

The signatories also welcome a strong role for the International Labour Organization (ILO), through the Bangladesh office as well as through international programmes, to ensure that both the National Action Plan, and the programme foreseen by the signatories of this Agreement, get implemented.

The signatories shall develop and agree an Implementation Plan within 45 days of signing this Agreement. The nongovernmental organisations which are signatories to the Joint Memorandum of Understanding on Fire and Building Safety (dated March 15, 2012), having stated their intention to support the implementation of this programme, shall, at their own election, be signed witnesses to this Agreement.

This Agreement commits the signatories to finance and implement a programme that will take cognizance of the Practical Activities described in the NAP involving, at minimum, the following elements:

SCOPE: The agreement covers all suppliers producing products for the signatory companies. The signatories shall designate these suppliers as falling into the following categories, according to which they shall require these supplier to accept inspections and implement remediation measures in their factories according to the following breakdown:

1. Safety inspections, remediation and fire safety training at facilities representing, in the aggregate, not less than 30%, approximately, of each signatory company’s annual production in Bangladesh by volume (“Tier 1 factories”).

2. Inspection and remediation at any remaining major or long-term suppliers to each company (“Tier 2 factories”). Together, Tier 1 and Tier 2 factories shall represent not less than 65%, approximately, of each signatory company’s production in Bangladesh by volume.

3. Limited initial inspections to identify high risks at facilities with occasional orders, one-time orders or those for which a company’s orders represent less than 10% of the

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factory’s production in Bangladesh by volume (“Tier 3 factories”). Nothing in this paragraph shall be deemed to alleviate the obligation of each signatory company to ensure that those factories it designates as Tier 3 represent, in the aggregate, no more than 35%, approximately, of its production in Bangladesh by volume. Facilities determined, as a result of initial inspection, to be high risk shall be subject to the same treatment as if they were Tier 2 factories.

GOVERNANCE:

4. The signatories shall appoint a Steering Committee (SC) with equal representation chosen by the trade union signatories and company signatories (maximum 3 seats each) and a representative from and chosen by the International Labour Organization (ILO) as a neutral chair. The SC shall have responsibility for the selection, contracting, compensation and review of the performance of a Safety Inspector and a Training Coordinator; oversight and approval of the programme budget; oversight of financial reporting and hiring of auditors; and such other management duties as may be required. The SC will strive to reach decision by consensus, but, in the absence of consensus, decisions will be made by majority vote. In order to develop the activity of the SC, a Governance regulation will be developed.

5. Dispute resolution. Any dispute between the parties to, and arising under, the terms of this Agreement shall first be presented to and decided by the SC, which shall decide the dispute by majority vote of the SC within a maximum of 21 days of a petition being filed by one of the parties. Upon request of either party, the decision of the SC may be appealed to a final and binding arbitration process. Any arbitration award shall be enforceable in a court of law of the domicile of the signatory against whom enforcement is sought and shall be subject to The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention), where applicable. The process for binding arbitration, including, but not limited to, the allocation of costs relating to any arbitration and the process for selection of the Arbitrator, shall be governed by the UNCITRAL Model Law on International Commercial Arbitration 1985 (with amendments as adopted in 2006).

6. The signatories shall appoint an Advisory Board involving brands and retailers, suppliers, government institutions, trade unions, and NGOs. . The advisory board will ensure all stakeholders, local and international, can engage in constructive dialogue with each other and provide feedback and input to the SC, thereby enhancing quality, efficiency, credibility and synergy. The SC will consult the parties to the NAP to determine the feasibility of a shared advisory structure.

7. Administration and management of the programme will be developed by the SC in consultation with the 'High-Level Tripartite Committee' established to implement and oversee the National Action Plan on Fire Safety, as well as with the Ministry of Labour and Employment of Bangladesh (MoLE), the ILO and the Deutsche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ), to maximize synergy at operational level; and the SC may make use of the offices of GIZ for administrative coordination and support.

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CREDIBLE INSPECTIONS:

8. A qualified Safety Inspector, with fire and building safety expertise and impeccable credentials, and who is independent of and not concurrently employed by companies, trade unions or factories, shall be appointed by the SC. Providing the Chief Inspector acts in a manner consistent with his or her mandate under the provisions of this Agreement, and unless there is clear evidence of malfeasance or incompetence on his or her part, the SC shall not restrict or otherwise interfere with the Chief Inspector’s performance of the duties set forth in the Agreement as he or she sees fit, including the scheduling of inspections and the publishing of reports.

9. Thorough and credible safety inspections of Tier 1, 2 and 3 factories shall be carried out by skilled personnel selected by and acting under the direction of the Safety Inspector, based on internationally recognized workplace safety standards and/or national standards (once the review foreseen under the NAP is completed in June 2013). The Safety Inspector shall make all reasonable efforts to ensure that an initial inspection of each factory covered by this Agreement shall be carried out within the first two years of the term of this Agreement. The Safety Inspector will be available to provide input into the NAP legislative review and to support capacity building work regarding inspections by the MoLE foreseen under the NAP.

10. Where a signatory company’s inspection programme, in the opinion of the Safety Inspector, meets or exceeds the standards of thorough and credible inspections, as defined by the Safety Inspector, it will be considered an integral part of the programme activities set forth in this Agreement. Signatory companies wishing to have their inspection programme so considered shall provide the Safety Inspector full access to the findings of their inspections and he or she will integrate these into reporting and remediation activities. Notwithstanding this provision, all factories within the scope of this Agreement shall still be subject to all the provisions of this Agreement, including but not limited to a least one safety inspection carried out by personnel acting under the direction of the Safety Inspector.

11. Written Inspection Reports of all factories inspected under the programme shall be prepared by the Safety Inspector within two (2) weeks of the date of inspection and shared upon completion with factory management, the factory’s health and safety committee, worker representatives (where one or more unions are present), signatory companies and the SC. Where, in the opinion of the Safety Inspector, there is not a functioning health and safety committee at the factory, the report will be shared with the unions which are the signatories to this Agreement. Within a timeline agreed by the SC, but no greater than six weeks, the Safety Inspector shall disclose the Inspection Report to the public, accompanied by the factory’s remediation plan, if any. In the event that, in the opinion of the Safety Inspector, the inspection identifies a severe and imminent danger to worker safety, he or she shall immediately inform factory management, the factory’s health and safety committee, worker representatives (where one or more unions are present), the Steering Committee and unions which are signatories to this Agreement, and direct a remediation plan.

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REMEDIATION:

12. Where corrective actions are identified by the Safety Inspector as necessary to bring a factory into compliance with building, fire and electrical safety standards, the signatory company or companies that have designated that factory as a Tier 1, 2, or 3 supplier, shall require that factory to implement these corrective actions, according to a schedule that is mandatory and time-bound, with sufficient time allotted for all major renovations.

13. Signatory companies shall require their supplier factories that are inspected under the Program to maintain workers’ employment relationship and regular income during any period that a factory (or portion of a factory) is closed for renovations necessary to complete such Corrective Actions for a period of no longer than six months. . Failure to do so may trigger a notice, warning and ultimately termination of the business relationship as described in paragraph 21.

14. Signatory companies shall make reasonable efforts to ensure that any workers whose employment is terminated as a result of any loss of orders at a factory are offered employment with safe suppliers, if necessary by actively working with other suppliers to provide hiring preferences to these workers.

15. Signatory companies shall require their supplier factories to respect the right of a worker to refuse work that he or she has reasonable justification to believe is unsafe, without suffering discrimination or loss of pay, including the right to refuse to enter or to remain inside a building that he or she has reasonable justification to believe is unsafe for occupation.

TRAINING:

16. The Training Coordinator appointed by the SC shall establish an extensive fire and building safety training program. The training program shall be delivered by a selected skilled personnel by the Training Coordinator at Tier 1 facilities for workers, managers and security staff to be delivered with involvement of trade unions and specialized local experts. These training programmes shall cover basic safety procedures and precautions, as well as enable workers to voice concerns and actively participate in activities to ensure their own safety. Signatory companies shall require their suppliers to provide access to their factories to training teams designated by the Training Coordinator that include safety training experts as well as qualified union representatives to provide safety training to workers and management on a regular basis.

17. Health and Safety Committees shall be required by the signatory companies in all Bangladesh factories that supply them, which shall function in accordance with Bangladeshi law, and be comprised of workers and managers from the applicable factory. Worker members shall comprise no less than 50% of the committee and shall be chosen by the factory’s trade union, if present, and by democratic election among the workers where there is no trade union present.

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COMPLAINTS PROCESS:

18. The Safety Inspector shall establish a worker complaint process and mechanism that ensures that workers from factories supplying signatory companies can raise in a timely fashion concerns about health and safety risks, safely and confidentially, with the Safety Inspector. This should be aligned with the Hotline to be established under the NAP.

TRANSPARENCY AND REPORTING:

19. The SC shall make publicly available and regularly update information on key aspects of the programme, including:

a. a single aggregated list of all suppliers in Bangladesh (including sub-contractors) used by the signatory companies, based on data which shall be provided to the SC and regularly updated by each of the signatory companies, and which shall indicate which factories on this list have been designated by that company as Tier 1 factories and which have been designated by that company as Tier 2 factories, however volume data and information linking specific companies to specific factories will be kept confidential,

b. Written Inspection Reports, which shall be developed by the Safety Inspector for all factories inspected under this programme, shall be disclosed to interested parties and the public as set forth in paragraph 11 of this Agreement.

Public statements by the Safety Inspector identifying any factory that is not acting expeditiously to implement remedial recommendations.

c. Quarterly Aggregate Reports that summarize both aggregated industry compliance data as well as a detailed review of findings, remedial recommendations, and progress on remediation to date for all factories at which inspections have been completed.

20. The signatories to this Agreement shall work together with other organizations such as ILO and the High-Level Tripartite Committee and the Bangladeshi Government to encourage the establishment of a protocol seeking to ensure that suppliers which participate fully in the inspection and remediation activities of this Agreement shall not be penalised as a result of the transparency provisions of this Agreement. The objectives of the protocol are to (i) support and motivate the employer to take remediation efforts in the interest of the workforce and the sector and (ii) expedite prompt legal action where the supplier refuses to undertake the remedial action required to become compliant with national law.

SUPPLIER INCENTIVES:

21. Each signatory company shall require that its suppliers in Bangladesh participate fully in the inspection, remediation, health and safety and, where applicable, training activities, as described in the Agreement. If a supplier fails to do so, the signatory will promptly

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implement a notice and warning process leading to termination of the business relationship if these efforts do not succeed.

22. In order to induce Tier 1 and Tier 2 factories to comply with upgrade and remediation requirements of the program, participating brands and retailers will negotiate commercial terms with their suppliers which ensure that it is financially feasible for the factories to maintain safe workplaces and comply with upgrade and remediation requirements instituted by the Safety Inspector. Each signatory company may, at its option, use alternative means to ensure factories have the financial capacity to comply with remediation requirements, including but not limited to joint investments, providing loans, accessing donor or government support, through offering business incentives or through paying for renovations directly.

23. Signatory companies to this agreement are committed to maintaining long-term sourcing relationships with Bangladesh, as is demonstrated by their commitment to this five-year programme. Signatory companies shall continue business at order volumes comparable to or greater than those that existed in the year preceding the inception of this Agreement with Tier 1 and Tier 2 factories at least through the first two years of the term of this Agreement, provided that (a) such business is commercially viable for each company and (b) the factory continues to substantially meet the company’s terms and comply with the company’s requirements of its supplier factories under this agreement.

FINANCIAL SUPPORT:

24. In addition to their obligations pursuant to this Agreement, signatory companies shall also assume responsibility for funding the activities of the SC, Safety Inspector and Training Coordinator as set forth in this Agreement, with each company contributing its equitable share of the funding in accordance with a formula to be established in the Implementation Plan. The SC shall be empowered to seek contributions from governmental and other donors to contribute to costs. Each signatory company shall contribute funding for these activities in proportion to the annual volume of each company’s garment production in Bangladesh relative to the respective annual volumes of garment production of the other signatory companies, subject to a maximum contribution of $500,000 per year for each year of the term of this Agreement. A sliding scale of minimum contributions based on factors such as revenues and annual volume in Bangladesh will be defined in the Implementation Plan with annual revisions, while ensuring sufficient funding for the adequate implementation of the Accord and the Plan.

25. The SC shall ensure that there are credible, robust, and transparent procedures for the accounting and oversight of all contributed funds.

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Joint Statement

Staying engaged: A Sustainability Compact for continuous improvements in labour rights and factory safety in the Ready-Made Garment and Knitwear

Industry in Bangladesh

The representatives of the Government of Bangladesh, the European Union (EU) represented by

the European Commission and the International Labour Organization (ILO) met in Geneva on 8

July 2013 to promote improved labour standards and responsible business conduct in the Ready-

Made Garment (RMG) and knitwear industry in Bangladesh. Representatives from industry

(including brands, retailers and SMEs), employers, trade unions and other key stakeholders

participated in the meeting and provided valuable input.

The participants acknowledge the positive impact of the RMG and knitwear sector in Bangladesh

over the past three decades and its contribution to economic development, employment, higher

income level and skills in Bangladesh, as well as its positive impact on eradication of poverty,

empowerment of women and progress on the timely attainment of some of the Millennium

Development Goals (MDGs). This also enhances trade amongst countries and creates global

wealth. As the RMG and knitwear industry holds further growth potential in Bangladesh,

participants emphasise the importance of a balanced development of the sector, with safe and

secure work places for further expansion of trade.

Bangladesh and the EU welcome and encourage the continued efforts of the ILO to bring

together the various relevant stakeholders to work together to address the challenges of labour

standards and factory safety in Bangladesh. The National Tripartite Plan of Action on Fire Safety

and Structural Integrity in the Ready Made Garment Sector in Bangladesh and the Joint

Statement by Tripartite Partners (government, employers, workers) with the ILO constitute key

references for intensifying efforts to improve labour standards, including freedom of association

and occupational safety and health, in Bangladesh’s  RMG and knitwear sector. Adoption and

effective implementation of a Bangladesh Labour Law reform, consistent with international core

labour standards, would form another important step in that direction. In this regard, the EU

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intends to support Bangladesh's work on the implementation of the Labour Law to help

Bangladesh create the framework for a successful launch of the Better Work Programme.

Bangladesh reiterates its continuing efforts to effectively implement in law and practice the

international labour standards embodied in the fundamental ILO Conventions and other ILO

Conventions that it has ratified. The EU will continue to assist Bangladesh to meet its obligations

in this respect. Bangladesh is committed to continue to work with the ILO and other relevant

national institutions to improve the overall framework in the area of occupational safety and

health, including the ratification of other relevant ILO Conventions.

Companies, including brands and retailers, should ensure respect of ILO core labour standards as

well as national laws across their value chains. Bangladesh and the EU expect them to act

consistently with the UN Guiding Principles on Business and Human Rights, the OECD

Guidelines for Multinational Enterprises, and the ILO Tripartite Declaration of Principles

concerning Multinational Enterprises and Social Policy as appropriate, as well as to expand

dialogue with workers' organisations and representatives.

Bangladesh and the EU welcome the fact that major fashion and retail brands sourcing RMG

from Bangladesh are coordinating their efforts to help improve safety in the Bangladeshi

factories which supply them. In this respect, the progress made in developing implementation

plans is recognised and the importance of engaging with national stakeholders to ensure

consistency between various initiatives is underlined. We call upon other brands and retailers

doing business in Bangladesh to initiate similar measures.

The present Compact covers the following areas:

1. Respect for labour rights, in particular freedom of association and the right to collective

bargaining,

2. Structural integrity of the buildings and occupational safety and health, and

3. Responsible business conduct by all stakeholders engaged in the RMG and knitwear

industry in Bangladesh.

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Progress on the implementation of actions in these areas will be followed up by Bangladesh and

the EU with the support of the ILO, as appropriate. Bangladesh, the EU and the ILO will

maintain close cooperation to ensure a comprehensive, balanced and complementary approach

and consolidate the initiatives. The importance of providing expertise and technical assistance to

Bangladesh to support the implementation of the agreed actions is recognised. They commit to a

follow-up meeting in 2014 to take stock of progress made on the actions outlined in this

Compact.

1. Respect for labour rights

Building on commitments already made, Bangladesh commits to pursue its efforts to improve of

labour standards and factory safety through:

a) Adoption in July 2013 of the amendments to the Bangladesh Labour Law aimed at

improving the fundamental rights of workers, and thereafter ensuring entry into force of

the amended Labour Law by the end of 2013. The amended Labour Law will provide

improved protection, in law and practice, for the fundamental rights to freedom of

association and the rights to collective bargaining, as well as Joint Committees for the

improvement of occupational safety and health.

b) Conforming to all the existing ILO rules, procedure and practices in appraising the

actions taken with respect to the implementation and enforcement of the revised Labour

Law. Effective implementation and enforcement of the Labour Law will be monitored

through regular reports by the Government of Bangladesh to the ILO Committee of

Experts and social partners' observations submitted to the same Committee, in

compliance with the conclusions of the ILO Committee on Application of Standards.

Effective implementation includes the rapid issuance and implementation of all rules

required by law, including for the free election of workers' representatives and the

functioning of participation committees, as committed by the Government of Bangladesh

at the ILO Conference Committee on the Application of Standards in June 2013. In this

respect, the ILO commits to provide technical assistance to Bangladesh towards

implementation and follow-up concerning freedom of association and the right to

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collective bargaining, including for the effective application of the law regarding union

registrations, union discrimination cases, and unfair labour practice claims.

c) Consulting closely with the ILO to develop and adopt additional legislative proposals to

address conclusions and recommendations of the ILO supervisory monitoring bodies, in

particular with reference to ILO Convention No. 87 (Freedom of Association and

Protection of the Right to Organise) and Convention No. 98 (Right to Organise and Collective

Bargaining). The ILO will assist Bangladesh in reviewing the adequacy of the reforms in

meeting ILO requirements.

d) Taking all necessary steps, with support from the ILO, to further improve exercise of

freedom of association, ensure collective bargaining and the application of the national

Labour Law to Export Processing Zones (EPZ), including ensuring that the Ministry of

Labour inspectors and other regulatory agencies have full authority and responsibility to

conduct inspections. The Government of Bangladesh will form an intra-governmental

working group for these purposes. The Government of Bangladesh reaffirms its

commitment to the enforcement of national law and review of legislation where

appropriate   to   ensure   the   protection   of   EPZ   workers’   freedom   of   association   and  

collective bargaining rights, including the prohibition of blacklisting and ensuring the

establishment of the right to strike by  Workers’  welfare  associations  from 1 January 2014

in the EPZs for exercising these rights. The Government of Bangladesh will engage with

the ILO to work towards building capacity and raising awareness on freedom of

association and rights and their impact on development, productivity and adaptation at

the workplace.

e) Continuing, in coordination with ILO, the education and training programmes on

fundamental principles and rights at work and on occupational safety and health designed

for workers, trade union representatives and employers and their organisations,

representatives on participation committees and safety committees and other relevant

stakeholders, as early as possible in 2013.

f) Achieving eligibility for the Better Work Programme, a partnership between the ILO and

the International Finance Corporation (IFC), in order to improve compliance with labour

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standards and to promote competitiveness in global supply chains in the RMG and

knitwear industry. To this end the Government of Bangladesh commits to do all within its

power to enable the Better Works Programme in Bangladesh to start as soon as possible

following the adoption of amendments to the labour law under consideration in the

Parliament of Bangladesh. The Government of Bangladesh will act expeditiously to

register independent trade unions and to ensure protection of unions and their members

from anti-union discrimination and reprisals. Once initiated, the Better Work Programme

will include capacity building for social partners and support in development of social

dialogue at the enterprise level. This should be done in coordination with the ILO and the

IFC, and in cooperation with social partners, as defined by the ILO, as well as industry

and worker representatives.

g) Completing the upgrading of the Department of the Chief Inspector of Factories and

Establishments to a Directorate with a strength of 800 inspectors, having adequate annual

budget allocation, and the development of the infrastructure required for its proper

functioning. The Government of Bangladesh will move to recruit 200 additional

inspectors by the end of 2013. The Directorate will regularly visit and assess industrial

establishments to enforce national labour laws, including on working conditions in

factories, freedom of association and collective bargaining. Inspections should be

conducted in a fully transparent and accountable manner.

h) Creating, with the support of ILO and other development partners, a publicly accessible

database listing all RMG and knitwear factories, as a platform for reporting labour, fire

and building safety inspections, which would include information on the factories and

their locations, their owners, the results of inspections regarding complaints of anti-union

discrimination and unfair labour practices, fines and sanctions administered, as well as

remedial actions taken, if any, subject to relevant national legislation.

i) Launching, by 31 December 2013, with the support of the ILO, skills and training

programme for workers who sustained serious injuries in the recent tragic events and

redeploying the RMG and knitwear workers that were rendered unemployed as well as

rehabilitated workers.

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j) Conducting, by 31 December 2013, with the support of the ILO, a diagnostic study of the

Labour Inspection System and develop and implement a resulting action plan, including

appropriate measures.

The European Commission in the context of EU development assistance will:

k) Provide assistance to rehabilitate those permanently disabled by the Rana Plaza collapse,

including through: (i) exploring the possibility of reallocating funds under the current

EU-funded Technical and Vocational Education and Training (TVET) project

implemented by the ILO; and (ii) the existing EU-funded Better Work and Standard

(BEST) cooperation programme with Bangladesh.

l) Promote a focus on skills development in future EU assistance to Bangladesh.

m) Consult with the ILO, the Government of Bangladesh and other donors to see which of

the actions from the ILO Programme Outline 2013-2016  ‘Improving  Working  Conditions  

in   the   RMG   Sector   in   Bangladesh’, including those in relation to the Better Work

Programme for Bangladesh, could be supported technically or financially by the EU

under the next programming cycle (2014-2020).

n) Explore further funding possibilities within the upcoming programming period 2014-

2020, including through the Thematic Programme Global Public Goods and Challenges,

which specifically includes a component in support of the implementation of EU

commitments on decent work.

2. Structural integrity of buildings and occupational safety and health:

Bangladesh commits to:

a) Implement the National Tripartite Plan of Action on Fire Safety and Structural Integrity in

the RMG industry in Bangladesh with the support of ILO, in accordance with the

established milestones and timelines, as stipulated in the Programme of Action. This will

be coordinated and monitored by the Bangladesh National Tripartite Committee with the

support of the ILO.

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b) Assess the structural building safety and fire safety of all active export-oriented RMG and

knitwear factories in Bangladesh by June 2014 – with the most populated factories

assessed by the end of 2013 – and initiate remedial actions, including relocation of unsafe

factories. ILO will play a coordinating role, including assisting in mobilisation of

technical resources required to undertake the assessment.

c) Develop, with the assistance from the ILO and other development partners, the publicly

accessible database described in paragraph 1.h), to record: the dates of labour, fire and

building safety inspections; identification of inspectors, violations identified, fines and

sanctions administered; factories ordered closed and actually closed; factories ordered

relocated and actually relocated; violations remediated; and information on management

and worker fire and building safety training activities subject to relevant national

legislation.

The European Commission, in the context of EU development assistance, will:

d) Extend   the   social   compliance   component   in   the   EU’s   on-going BEST programme with

Bangladesh. This specific component aims to improve working conditions and to

strengthen overall competitiveness in the textiles and RMG and knitwear sector. This

extension will allow the programme to provide more training on social compliance and

occupational safety and health.

e) Extend future technical assistance, including Aid for Trade, to address labour standards,

including health and safety at work and adequate levels of social dialogue and collective

bargaining in Bangladesh and in other countries in the region facing similar problems.

3. Responsible business conduct

Bangladesh and the EU as represented by the European Commission remain engaged to support

and promote socially responsible supply chains:

a) Bangladesh, the EU and also the ILO welcome the fact that major fashion and retail

brands sourcing garments from Bangladesh are coordinating their efforts to help improve

safety in the Bangladeshi factories which supply them. They recognise the progress made

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8

in developing implementation plans and underline the importance of engaging with

stakeholders to ensure effective implementation of and consistency amongst the various

initiatives.

b) They welcome the fact that over 70 major fashion and retail brands sourcing RMG from

Bangladesh have signed an Accord on Fire and Building Safety to coordinate their efforts

to help improve safety in Bangladesh’s factories which supply them. In this context, they

encourage other companies, including SMEs, to join the Accord expeditiously within

their respective capacities. They recognise the need for appropriate involvement of all

stakeholders for an effective implementation of the Accord.

c) The EU and Bangladesh recognise the need for multi-national enterprises

(MNEs)/brands/retailers to deepen discussion on responsible business conduct with a

view to addressing issues along the supply chain. We encourage retailers and brands to

adopt and follow a unified code of conduct for factory audit in Bangladesh.

d) Bangladesh and the EU take note of the work by European social partners in the textile

and clothing sector started on 26 April 2013 to update their 1997 and 2008 Codes of

Conduct on fundamental rights, in the framework of the European Sectoral Social

Dialogue Committee for Textile and Clothing.

Bangladesh and the EU, along with the ILO, welcome the support of representatives from

industry, employers, trade unions and other key stakeholders to the Compact, as well as their

continued commitment to improved labour standards and responsible business conduct in the

RMG and knitwear industry in Bangladesh.

Geneva, on 8 July 2013

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U.S. Department of Labor Wage and Hour Division

(April 2010) Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act This fact sheet provides general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act for the services that they provide to “for-profit” private sector employers. Background The Fair Labor Standards Act (FLSA) defines the term “employ” very broadly as including to “suffer or permit to work.” Covered and non-exempt individuals who are “suffered or permitted” to work must be compensated under the law for the services they perform for an employer. Internships in the “for-profit” private sector will most often be viewed as employment, unless the test described below relating to trainees is met. Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. The Test For Unpaid Interns There are some circumstances under which individuals who participate in “for-profit” private sector internships or training programs may do so without compensation. The Supreme Court has held that the term "suffer or permit to work" cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction. This may apply to interns who receive training for their own educational benefit if the training meets certain criteria. The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program. The following six criteria must be applied when making this determination:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to

training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern;

and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the

internship.

If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern. This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad. Some of the most commonly discussed factors for “for-profit” private sector internship programs are considered below.

FS 71

15

Similar To An Education Environment And The Primary Beneficiary Of The Activity In general, the more an internship program is structured around a classroom or academic experience as opposed to the employer’s actual operations, the more likely the internship will be viewed as an extension of the individual’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit). The more the internship provides the individual with skills that can be used in multiple employment settings, as opposed to skills particular to one employer’s operation, the more likely the intern would be viewed as receiving training. Under these circumstances the intern does not perform the routine work of the business on a regular and recurring basis, and the business is not dependent upon the work of the intern. On the other hand, if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits will not exclude them from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work. Displacement And Supervision Issues If an employer uses interns as substitutes for regular workers or to augment its existing workforce during specific time periods, these interns should be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. If the employer would have hired additional employees or required existing staff to work additional hours had the interns not performed the work, then the interns will be viewed as employees and entitled compensation under the FLSA. Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide education experience. On the other hand, if the intern receives the same level of supervision as the employer’s regular workforce, this would suggest an employment relationship, rather than training. Job Entitlement The internship should be of a fixed duration, established prior to the outset of the internship. Further, unpaid internships generally should not be used by the employer as a trial period for individuals seeking employment at the conclusion of the internship period. If an intern is placed with the employer for a trial period with the expectation that he or she will then be hired on a permanent basis, that individual generally would be considered an employee under the FLSA. Where to Obtain Additional Information This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations. For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243). U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210

1-866-4-USWAGE TTY: 1-866-487-9243

Contact Us

The FLSA makes a special exception under certain circumstances for individuals who volunteer to perform services for a state or local government agency and for individuals who volunteer for humanitarian purposes for private non-profit food banks. WHD also recognizes an exception for individuals who volunteer their time, freely and without anticipation of compensation for religious, charitable, civic, or humanitarian purposes to non-profit organizations. Unpaid internships in the public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible. WHD is reviewing the need for additional guidance on internships in the public and non-profit sectors.

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S T A T E O F N E W Y O R K ________________________________________________________________________

7787

2013-2014 Regular Sessions

I N A S S E M B L Y

June 4, 2013 ___________

Introduced by M. of A. OTIS, WRIGHT, SIMOTAS, BRAUNSTEIN -- read once and referred to the Committee on Labor

AN ACT to amend the labor law and the arts and cultural affairs law, in relation to expanding the definition of "artistic and creative services", for purposes of the employment and education of child performers, to include the services of runway and print models; and to repeal section 35.05 of the arts and cultural affairs law relating to employment of children as models

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS:

1 Section 1. Subdivision 1 of section 150 of the labor law, as added by 2 chapter 630 of the laws of 2003, is amended to read as follows: 3 1. "Artistic or creative services" shall include, but are not limited 4 to, services as an actor, actress, dancer, musician, comedian, singer, 5 stunt-person, voice-over artist, RUNWAY OR PRINT MODEL, or other 6 performer or entertainer, or as a songwriter, musical producer or arran- 7 ger, writer, director, producer, production executive, choreographer, 8 composer, conductor, or designer. 9 S 2. Paragraph (a) of subdivision 1 of section 35.01 of the arts and 10 cultural affairs law, as amended by chapter 35 of the laws of 2004, is 11 amended to read as follows: 12 (a) In singing; or dancing; OR MODELING; or playing upon a musical 13 instrument; or acting, or in rehearsing for, or performing in a theatri- 14 cal performance or appearing in a pageant; or as a subject for use, in 15 or for, or in connection with the making of a motion picture film; or 16 S 3. Paragraph (a) of subdivision 1 of section 35.03 of the arts and 17 cultural affairs law is amended to read as follows: 18 (a) the infant is to perform or render services as an actor, actress, 19 MODEL, dancer, musician, vocalist or other performing artist, or as a 20 participant or player in professional sports, or 21 S 4. Section 35.05 of the arts and cultural affairs law is REPEALED.

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11027-03-3 A. 7787 2

1 S 5. This act shall take effect on the thirtieth day after it shall 2 have become a law, provided that, effective immediately, any rules and 3 regulations necessary to implement the provisions of this act are 4 authorized to be promulgated on or before such date.

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18  June  2013  

DESIGNERS’ GUIDE TO PENDING NEW YORK LAW ON MODELS UNDER AGE 18

Last week the New York state legislature unanimously passed a bill extending the existing protections for child performers to include models under the age of 18. These new provisions, which apply to both runway and print work, will take effect 30 days after the governor signs the bill into law – very possibly before New York Fashion Week. As you know, CFDA guidelines already call for use of models only age 16 and above for runway. Once the new law drafted by the Model Alliance goes into effect, it will still be legal to use models under 18 – but hiring child models will require you to follow a series of specific rules. OPTION 1 The easiest way to avoid fees, paperwork, monitoring, and potential penalties is simply to use models 18 and over – and to ask the agencies and casting directors with whom you work to assist you in checking models’ ages. OPTION 2 If you think you might hire models who are still minors, you’ll want to be aware of the following requirements: Employer Certificate The first step for any designer who might hire a child model, including through an agency, is to apply for a general Employer Certificate of Eligibility from the New York State Department of Labor. The application form is available at http://www.labor.ny.gov/formsdocs/wp/LS550.pdf. It is valid for up to 3 years, and the cost is $350 (or $200, if you’re sure that you will not show in a venue that seats 500 or more people). The form asks for the location(s) of employment – not something you will necessarily have decided far in advance of a runway show or photo shoot. (The form, and all of the regulations, were created for other types of child performers, such as actors, dancers, musicians, etc., and is geared toward traditional theater settings. Once the new law is in place, there may be modifications appropriate to modeling – we’ll keep you posted.) In a recent call, the Department of Labor suggested including, in addition to the location of fittings and the anticipated location of your show, “and other locations” to make sure that you’re covered. Although these certificates normally issue within a week, plus mailing time, you may wish to apply right away to avoid delays caused by a rise in applications due to the new bill (or Department of Labor employees’ summer vacations). Additional Paperwork After obtaining the Employer Certificate of Eligibility, there are several types of paperwork that are required for each model under 18 that you hire.

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• At least 2 business days before you use the model – presumably even for fittings –the Department of Labor requires submission of specific information using the form available at http://www.labor.ny.gov/formsdocs/wp/LS556.pdf. (The “Group Certificate” mentioned on the form is only relevant if you’re hiring a group of minors together, such as a a high school band, which requires a separate application.)

• The Department of Labor requires that you have on file emergency contact information, parental permission, and authorization for emergency medical treatment. Form available at http://www.labor.ny.gov/formsdocs/wp/LS563.pdf.

• The Department of Labor also requires that you have on file a copy of the Child Performer Permit, along with required documentation about transfers of a percentage of payment to a trust account (see below). The state is entitled to inspect and make sure that you have copies of these documents.

Limited Work Hours For models under 18, maximum work hours per day are already restricted by law, depending on their ages and whether or not school is in session. The details will change somewhat under the new law, but important points to remember are that child models can never work after midnight on a school night for runway (10pm for print) or after 12:30am on non-school nights. In addition, they cannot return to work less than 12 hours after they leave – in other words, if a fitting goes until midnight, the earliest possible call the next day is noon. Models under 18 must also receive breaks for meals and study time. Remember that the Department of Labor requires keeping records of each child model’s arrival and departure times, as well as break times. The official table of permitted work hours is available at http://www.labor.ny.gov/formsdocs/wp/LS559.pdf. Study Time & Tutors The educational regulations for child performers are complex and designed for employment longer than a typical modeling job, such as a Broadway play. Child models who are at work for long hours, however, will be required to have study time and space. If they'll miss 3 or more days of school, in most cases the state will also require you to provide and pay for an approved tutor. Trust Accounts Within 30 days of employing a model under 18, the Department of Labor requires 15% of the fee to be placed in a separate, restricted bank account according to the information provided by the model’s parent or guardian along with the Child Performer Permit. Ideally the modeling agencies will put in place mechanisms to handle this and to provide the required documentation to the model’s parent or guardian, but whoever hires the model is ultimately responsible for making sure that the transfer occurs and for providing records to the Department of Labor if requested. Chaperones Using a particularly young model, under age 16, even to model a children’s line, requires designating a “responsible person.” If the model does not have a parent or guardian present, then it’s necessary to hire someone to be within sight or hearing of the model at all times and to be responsible for the model’s safety and well-being. Penalties Fines for violating the child performer law are $1,000 for the 1st violation, $2,000 for

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18  June  2013  

the 2nd, and $3,000 for each subsequent violation – plus, of course, the likelihood of negative coverage in the press. Additional Notes and Resources Once enacted, the law will apply to all shows or photo shoots that take place in New York. Please be aware that most other states and countries have similar laws, but they vary from location to location. This guide is just a summary and is not legal advice – the official New York State Department of Labor regulations are over 30 pages long, and they may be clarified even further once child models are added to the list of child performers. We’ll plan to send updates with any significant developments, and please let us know if you have additional questions. For more detail, you can read the New York statute itself, the official Department of Labor regulations implementing the statute, or the Department of Labor’s FAQ page. Good luck with plans for your spring collections! We hope this guide helps you focus attention – yours and the media’s – on your work rather than your models. Prepared by Professor Susan Scafidi, Fashion Law Institute, an independent nonprofit founded with the assistance of the CFDA and based at Fordham Law School.

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PART 186

CHILD PERFORMERS

(Statutory authority: Labor Law §154-a)

Subpart 186-1 Purposes, scope and exemptions.

Subpart 186-2 Definitions.

Subpart 186-3 Responsibilities of Parents and Guardians

Subpart 186-4 Responsibilities of employers.

Subpart 186-5 Educational requirements.

Subpart 186-6 Hours and conditions of work.

Subpart 186-7 Records; contracts.

Subpart 186-8 Variances.

Subpart 186-9 Suspension or revocation of permits and certificates.

Subpart 186-10 Penalties and appeals.

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SUBPART 186-1

PURPOSES, SCOPE AND EXEMPTIONS

Sec.

186-1.1 Purposes of Part.

186-1.2 Scope.

§ 186-1.1 Purposes of Part.

The purposes of this Part are to protect the safety, morals, health, and well-being of child

performers, to ensure that child performers who work or reside in the state of New York are

provided with adequate education, and to ensure that a portion of the child performer’s earnings

are kept in trust for the benefit of the child performer until such child reaches the age of majority.

§ 186-1.2 Scope.

This regulation shall apply to all child performers who either reside or work in New York State

and to the entities employing them.

§ 186-1.3 Exemptions.

(a) Live Performances: This Part shall not apply to participation, employment, use or exhibition

of any child, other than in the making of a motion picture film or radio or television program:

(1) in a church, academy or school, including a dancing or dramatic school, as part of the

regular services or activities thereof respectively; or

(2) in the annual graduation exercises of any such academy or school; or

(3) in a private home; or

(4) in any place where such performance is under the direction, control or supervision of a

department of education.

(b) Radio and Television: This Part shall not apply to participation, employment, use or

exhibition of any child in the performance of radio or television programs in cases where:

(1) the child or children broadcasting do so from a school, church, academy, museum,

library or other religious, civic or educational institution, or

(2) for not more than two hours a week from the studios of a regularly licensed

broadcasting company, where the performance of the child or children is of a

nonprofessional character and occurs during hours when attendance for instruction is not

required in accordance with the education law.

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3

(c) Employer Requirements: In addition to the exemptions set forth above, the requirements of

this Part that are imposed on employers, see Subparts 186-4 to 186-7, shall not apply to

participation, use, or exhibition of any child that:

(1) is not compensated beyond a stipend, which may not: be tied to productivity, be a

substitute for compensation, or exceed 20% of the amount that would otherwise be required

to hire a performer for the same services; and

(2) is not of a professional character; and

(3) occurs during hours when attendance for instruction is not required in accordance with

the education law, and

(4) is not employed in connection with any trade, business or service.

(d) Penalties and Sanctions: No penalties or sanctions shall be imposed under this Part for

conduct that violates this part where the employer self-identifies and ceases such conduct and

abates the violation within 24 hours, either by coming into compliance with the requirement of

this Part that was violated or by petitioning the Commissioner for a variance from such

requirement.

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SUBPART 186-2

DEFINITIONS

Sec.

186-2.1 Definitions.

§ 186-2.1 Definitions.

As used in this Part:

(a) “Artistic or creative services” shall mean those services in connection with a performance, or

an appearance in a reality show, including, but not limited to, services as an actor, actress,

dancer, musician, comedian, singer, stunt-person, voice-over artist, or other performer or

entertainer, or as a songwriter, musical producer or arranger, writer, director, producer,

production executive, choreographer, composer, conductor, or designer.

(1) “Artistic or creative services” shall also include appearing as a model in a television

broadcast or program.

(2) Whenever the term “performance” is used in this regulation, it shall mean providing

“artistic or creative services.”

(b) “Child performer” shall mean any child under the age of 18 who:

(1) resides in the state of New York and who agrees to or is employed to render artistic or

creative services either within or outside the state of New York; or

(2) does not reside within the state of New York but agrees to or is employed to render

artistic or creative services within the State of New York.

(c) “Child performer’s employer” shall mean a person or entity that employs a child performer in

New York State to furnish artistic or creative services either directly or through a third-party

provider (loan-out company) or through an agency or service that provides artistic or creative

services (casting agency). For purposes of the trust and educational provisions only, the term

employment in New York State shall include work performed out-of-state when each of the

following conditions exist: the child performer resides in New York State, the employer has an

office for the transaction of business in New York State or otherwise does business in New York

State, and the child is taken to work at a location out-of-state as part of, and pursuant to, such

contractual arrangements. The use of the term “employer” in this regulation shall be deemed to

mean “child performer’s employer”.

(d) “Child performer’s holding fund” shall mean the special fund in the joint custody of the State

Comptroller and the Commissioner of Taxation and Finance consisting of revenues received and

interest accrued from transfers of a portion of a child performer’s gross earnings by employers

on behalf of child performers who do not have a child performer trust account pursuant to Part 7

of Article 7 of the New York Estates, Powers, and Trusts Law, and all other monies deposited

into the fund pursuant to law.

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(e) “Child Performer Permit” shall mean the document issued by the Department to a parent or

guardian of a child performer that authorizes the child performer to render artistic or creative

services pursuant to Article 4-A of the New York Labor Law.

(f) “Child performer trust account” shall mean an account established for the benefit of a child

performer, which, at a minimum, meets the requirements of Part 7 of Article 7 of the Estates,

Powers and Trusts Law.

(g) “Commissioner” shall mean the Commissioner of Labor of the State of New York.

(h) “Comptroller” shall mean the Comptroller of the State of New York.

(i) “Department” shall mean the New York State Department of Labor.

(j) “Employ” shall mean permitting or suffering a child performer to engage in artistic or creative

services, whether or not the child performer or any other person is paid for those services and

whether or not any person pays a fee or other charge to view or hear such services.

(k) “Employer Certificate of Eligibility” shall mean the document issued by the Commissioner to

a child performer’s employer that demonstrates proof of authorization to employ a child

performer pursuant to Article 4-A of the Labor Law.

(l) “Employer Certificate of Group Eligibility” shall mean a blanket permit issued by the

Commissioner to an employer that permits employment of a group of children not as individuals

but as a group, for no more than two days, in order to establish a background scene or to perform

as a group, such as a crowd in the street, on mass transit or bus, in a classroom or auditorium, or

as in a choir. Such group may be assembled by the employer or may be provided by a casting

agency, school, church, camp, club, choir, team, or other similar entity.

(m) “Employment schedule” shall mean the time that a child performer is required to be present

at his or her place of employment, excluding time spent traveling between the child’s school or

residence and the place of employment, but including time spent traveling from one place of

employment to another place of employment.

(n) “Gross earnings” shall mean the total compensation prior to taxes, allowable deductions, or

commissions payable to a child performer pursuant to a contract or, in the case where the

services of the child performer have been obtained through a third party individual or a personal

services corporation (loan-out company), the total compensation paid to the third party or the

loan-out company for the services of the child performer. However, where the child performer is

a musician, singer, songwriter, musical producer or arranger, “gross earnings” means the total

compensation under the contract including royalties and advances but excluding allowable

deductions to offset those advances or other expenses paid to third parties by the employer

pursuant to the contract.

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(o) “Live theater” shall mean performances before a live audience in a drama or musical, which

constructs a representational impression utilizing speech, song, gesture, music, dance, spectacle

or other performing arts, that is not produced for the principal purpose of television broadcast or

motion picture distribution.

(p) “Opening day” shall mean a live theatrical production’s first day of regular performances

before a live audience, following the standard rehearsal period, technical rehearsals, and preview

performances.

(q) “Payroll service company” shall mean a person, independent contractor, or organization

engaged by employers for the purpose of paying employees, withholding taxes and other payroll

deductions, and making trust account transfers as provided in § 186-4.5 of these regulations.

(r) “Preview performances” shall mean the period following the standard and technical rehearsal

periods in a live theatrical production, during which time performances are presented in front of

live audiences for the exclusive purpose of modifying creative, technical or other aspects of a

show prior to its opening day.

(s) “Reality show” shall mean the visual and/or audio recording or live transmission, by any

means or process now known or hereafter devised, of a child appearing as himself or herself, in

motion pictures, television, visual, digital, and/or sound recordings, on the internet, or otherwise.

“Reality show” shall not include recording or live transmitting of non-fictional:

(1) athletic events;

(2) academic events, such as, but not limited to, spelling bees and science fairs; and

(3) interviews in newscasts or talk shows.

(t) “Responsible person” shall mean a person over eighteen years of age designated or employed

in accordance with these regulations to supervise one or more child performers and safeguard

their best interests while the child performers are employed by the employer. Every responsible

person designated or employed by an employer, casting agency, talent agent or similar entity

must be qualified by training and experience to care for the safety and well being of children. In

determining whether the responsible person to be designated or employed by an employer,

casting agent or similar entity is qualified by training and experience, the entity shall assess

whether the person to be designated is familiar with the hours and working conditions

requirements of Subpart 186-6, shall conduct a check of New York State and national sex

offender registries, and shall consider the results in accordance with Article 23-A of the

Correction Law.

(u) “Serious injury” shall mean death, disfigurement, or an injury resulting in the loss of

consciousness or requiring medical treatment beyond first aid.

(v) “School day” shall mean any day in which a minor is required to attend school upon

instruction pursuant to state or local law. School days for home-schooled or distance educated

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children shall be determined by the calendar of an appropriate public school in the child’s district

of residence or of the distance education school in which the child is enrolled.

(w) “Standard rehearsal period” shall mean the period prior to a live theatrical production’s

opening day, during which time performers are regularly engaged in practicing songs, dialogue,

choreography or other elements of the production in preparation for performances before a live

audience.

(x) “Technical rehearsals” shall mean the period prior to a live theatrical production’s opening

day, during which time performers and production coordinators synchronize technical aspects of

a production including, but not limited to, lighting, sound, wire rigging and cue controls.

(y) “Temporary Child Performer Permit” shall mean the document issued by the Commissioner

to a parent or guardian of a child performer that authorizes the child performer to render artistic

or creative services pursuant to Article 4-A of the New York Labor Law for no longer than

fifteen days from its date of issuance during which time the parent(s) or guardian(s) of the child

performer may establish a child performer trust account or provide the Commissioner with other

documentation needed to obtain a Child Performer Permit.

(z) “Work day” shall mean the time that a child performer is required or permitted to be present

at his or her place of employment, excluding time spent traveling between the child’s school or

residence and the place of employment, but including rehearsal, preparation and performance

time, standby time, time for meals, study, rest and recreation, and time spent traveling from one

place of employment to another place of employment.

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8

SUBPART 186-3

RESPONSIBILITIES OF PARENTS AND GUARDIANS

Sec.

186-3.1 Child Performer Permit.

186-3.2 Application for Child Performer Permit.

186-3.3 Renewal of Child Performer Permit.

186-3.4 Temporary Child Performer Permit.

186-3.5 Child performer trust account.

186-3.6 Designated responsible person.

§ 186-3.1 Child Performer Permit.

(a) No parent or guardian of a child shall allow the child to be employed as a child performer

unless the parent or guardian has a current and valid Temporary Child Performer Permit or a

Child Performer Permit issued by the Commissioner on behalf of the child.

(b) Notwithstanding the above, a parent or guardian shall not be required to obtain a Temporary

Child Performer Permit or Child Performer Permit in order for a child to participate in a

production or performance under a blanket permit designated as an Employer Certificate of

Group Eligibility issued by the Commissioner to an employer.

§ 186-3.2 Application for Child Performer Permit.

(a) A parent or guardian of a child performer shall apply for a Child Performer Permit on a form

and in a manner provided by the Commissioner. The application shall contain such information

as the Commissioner may require including, but not limited to:

(1) the given name and the professional name of the child, if different from the given name;

(2) the child’s social security number. If the child does not yet have a social security

number, or has not yet been born at the time of application, the social security number shall

be submitted as soon as it becomes available;

(3) a physical description of the child;

(4) the name and address of the child’s parent(s) or guardian(s) and their home and business

phone numbers;

(5) any additional information deemed relevant by the Commissioner;

(6) an acknowledgement by the parent or guardian that he or she has reviewed the

educational materials on eating disorders posted on the Department’s website pursuant to

Section 154 of the Labor Law; and

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9

(7) a declaration by the parent or guardian that he or she agrees to be bound by all laws,

rules and regulations covering the employment of child performers and consents to the

issuance of the permit.

(b) The application shall be accompanied by:

(1) a copy of the child’s birth certificate, baptismal certificate, naturalization papers,

passport, or their equivalents, showing the child’s date of birth (required with the initial

application but not subsequent applications);

(2) a copy of a picture identification of the parent or guardian issued by a government

agency;

(3) if the applicant is a guardian, a notarized statement from the parent naming such person

as guardian, or a certified and numbered court document appointing such person as

guardian;

(4) evidence that the child performer, if he or she has reached the age of required schooling,

is maintaining satisfactory academic performance or is no longer required by law to attend

school;

(5) documentation from a financial institution indicating that a child performer trust account

has been established on behalf of the child and is currently open. The documentation must

include the name of the child performer, the name of the trustee, the type of account, the

number of the account, and the name and address of the local branch of the institution where

the account is located; and

(6) the signed written certification of a licensed physician, physician’s assistant or nurse

practitioner that the minor was examined within twelve months prior to the date of

application and has been found to be physically capable of engaging in employment without

endangering the child’s health. If there are limitations on the types or duration of activities

in which the child can safely engage, the practitioner shall state the limitations on activities.

(c) A Child Performer Permit shall be valid for twelve calendar months from the date of issuance

by the Department.

(d) Prior to the start of employment, the parent or guardian shall give the employer a copy of the

child performer’s permit. On or before the expiration date of the permit, the parent or guardian

shall give the employer a copy of a renewed permit.

(e) In order for a Child Performer Permit to be valid for paid performance work, the parent or

guardian must attach, to the employer’s copy of the permit, documentation of a child performer

trust account and the information necessary for the employer to make the required transfers to

the account, except for the Temporary Child Performer Permit, under which the parent or

guardian has up to fifteen days from the date of issuance of the permit to give the employer such

documentation and information. In order for a Child Performer Permit to remain valid for paid

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employment, the parent or guardian must give the employer all updates to the information

regarding the trust account as changes occur.

§ 186-3.3 Renewal of Child Performer Permit.

(a) For a child to remain continuously eligible to work as a child performer, the parent or

guardian shall renew the Child Performer Permit no later than thirty days prior to its expiration.

(b) An application for a renewal of a child performer permit shall be made on a form and in a

manner established by the Commissioner and shall include but not be limited to the following:

(1) any changes to information provided in the previous permit application, accompanied by

any documentation necessary to establish such changes, as required by the Commissioner;

(2) documentation from a financial institution showing that a child performer trust account

has been established on behalf of the child and is currently open. The documentation must

include the name of the child performer, the name of the trustee, the type of account, the

number of the account, and the name and address of the local branch of the institution where

the account is located;

(3) an original certificate of satisfactory academic performance for the most recently

completed semester signed by an official of the child’s school, or evidence that the child is

no longer required by law to attend school; and

(4) an updated health certification based upon an examination within twelve months prior to

the date of renewal application.

(c) The Commissioner may decline to issue a renewal permit to any parent or guardian of a child

performer who has not complied with the provisions of this Part or any other laws or regulations

relating to the employment of child performers, or for other good cause shown.

(d) A renewal of a Child Performer Permit shall be valid for a period of twelve months following

its date of issuance.

§ 186-3.4 Temporary Child Performer Permit.

(a) Prior to the first employment of a child performer, the Commissioner may issue a Temporary

Child Performer Permit in order to give the parent or guardian of the child performer time to

establish a child performer trust account or to produce all documentation required by the

Department for the issuance of a Child Performer Permit.

(b) A Temporary Child Performer Permit shall be valid for fifteen days from the date of

issuance.

(c) A Temporary Child Performer Permit may be issued only once for a given child.

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§ 186-3.5 Child performer trust account.

(a) A child performer’s parent or guardian shall establish a child performer trust account for the

benefit of the child prior to the child’s first instance of paid employment as a child performer and

shall maintain such account until the custodian of such account transfers the contents thereof to

the child performer or the child performer’s estate pursuant to section 7-6.20 of the Estates,

Powers and Trusts Law, except that a Temporary Child Performer Permit will allow the parent or

guardian up to fifteen days to establish such a trust account.

(b) The parent(s) or guardian(s) of a child performer may serve as the custodian(s) of the child

performer trust fund subject to the limitation set forth in subdivision (f) of this section.

(c) The amount of the transfers made by the employer into the child performer trust account shall

be established by the custodian(s) of the account, provided that they may not be less than the

minimum transfer amounts (fifteen percent of gross earnings) set forth in Part 7 of Article 7 of

the Estates, Powers and Trusts Law. Where the custodian is other than the parent or guardian,

the parent or guardian may ask the custodian to require the employer to transfer a specific

amount or percentage more than fifteen percent of the gross earnings to the trust account, in

which case the custodian shall notify the employer of the requirement. The custodian, parent or

guardian shall communicate in writing to the employer the specific amount, and any change in

the amount, to be transferred into the child performer trust account.

(d) The child performer’s parent or guardian shall provide the employer with all information

necessary to make transfers to such account on behalf of the child performer, within fifteen days

of commencement of the child performer’s employment.

(e) A parent or guardian of a child performer shall ensure that the custodian of the trust account

promptly notifies the child performer’s employer of any change in facts which affect the

employer’s obligation to set aside funds under Article 7 of the Estates, Powers, and Trust Law.

(f) Once the child performer’s trust fund balance is equal to or exceeds two hundred fifty

thousand dollars ($250,000.00), the custodian, parent or guardian shall ensure that a trust

company is appointed as custodian of the account. The appointment of a trust company as

custodian of the account shall be disclosed to the Department upon the next application for the

renewal of a Child Performer Permit following such appointment.

(g) A child performer trust account is not required for unpaid performances under an Employer

Certificate of Group Eligibility.

§ 186-3.6 Designated responsible person.

(a) The parent or guardian of a child performer under the age of 16 shall designate a responsible

person for the child, whose duties shall be to accompany the child throughout the workday and to

monitor the child’s safety and well being on behalf of the parent or guardian.

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(b) The parent or guardian may choose to serve as the responsible person for his or her own child

performer under the age of 16 or may designate another adult at least 18 years of age, including

another child performer’s parent or guardian, to serve as the responsible person for the first

parent’s or guardian’s child.

(c) Notwithstanding sub-sections (a) and (b) of this section, in live theater or other live

performance, when it is physically impracticable for the employer to permit a responsible person

designated by the parent or guardian to accompany a child under the age of 16, the employer

shall either:

(1) employ a responsible person at least 18 years of age to accompany the child and monitor

the safety and well being of the child. Such person may be responsible for more than one

child. The parent or guardian and the employer must agree in writing on the responsible

person. The parent or guardian shall not unreasonably withhold his or her agreement; or

(2) provide facilities to observe and hear the child, through electronic or other appropriate

means, to the responsible person designated by the parent or guardian;

or both.

(d) All preceding sub-sections of this section shall not apply to children employed under an

Employer Certificate of Group Eligibility. Instead, the employer and/or the entity providing the

group of children shall provide at least one adult for every twenty children or fraction thereof

under the age of 16 to accompany the group throughout the workday and monitor the children’s

safety and well being.

(e) Nothing in this section shall diminish the employer’s responsibility to ensure the safety and

well being of child performers.

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SUBPART 186-4

RESPONSIBILITIES OF EMPLOYERS

Sec.

186-4.1 Employer Certificate of Eligibility to employ child performers.

186-4.2 Application for and renewal of an Employer Certificate of Eligibility.

186-4.3 Notice of use of child performers.

186-4.4 Proof of Child Performer Permit.

186-4.5 Trust account transfers by the employer.

186-4.6 Provision for a responsible person.

186-4.7 Provision of a nurse for certain infants.

§ 186-4.1 Employer Certificate of Eligibility to employ child performers.

(a) Employer Certificate of Eligibility: Except as otherwise provided in this section, no person

or entity may employ one or more child performers unless the person or entity possesses an

Employer Certificate of Eligibility to employ child performers issued by the Commissioner.

(b) Employer Certificate of Group Eligibility: An employer may employ a group of children not

as individuals, but as a group, to establish a background scene or to perform as a group by

obtaining an Employer Certificate of Group Eligibility. Such Employer Certificate of Group

Eligibility shall permit the listed child performers to work for no more than two days, which

need not be consecutive, during specified dates of use and shall be subject to the following

conditions:

(1) Any day that a child reports to work at the request of the employer shall count as one of

the two permitted days of work, whether or not work is provided.

(2) The employer and/or the entity providing the group of children shall provide at least one

adult for every 20 children or fraction thereof under the age of 16 to accompany the group

throughout the work day and to monitor the children’s safety and well-being. They may

designate parents or other qualified persons as responsible persons for the group.

(c) An Employer Certificate of Eligibility or Employer Certificate of Group Eligibility shall not

be issued if the Commissioner determines that the employment or activity contemplated may be

hazardous or detrimental to the physical or mental health, morals, education, or general welfare

of the child performer(s).

§ 186-4.2 Application for and renewal of Employer Certificate of Eligibility.

(a) All applications for an Employer Certificate of Eligibility or Employer Certificate of Group

Eligibility and all applications for renewal of an Employer Certificate of Eligibility shall be made

to the Department prior to employing one or more child performers.

(b) The applicant for either an initial or a renewal Employer Certificate of Eligibility or an

Employer Certificate of Group Eligibility shall submit such application on a form and in a

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manner required by the Department and shall provide such information as the Commissioner

shall require including, but not limited to:

(1) the applicant’s name, federal tax identification number, business and email addresses,

telephone number, names of corporate officers, if any, and type (e.g. movie, play,

commercial, etc.) and location of employment of child performers for which the certificate is

requested;

(2) proof of the applicant’s compliance with the mandatory coverage requirements of the

workers’ compensation and disability benefits laws on forms approved by the Chair of the

New York State Workers’ Compensation Board;

(3) completion of the due diligence questionnaire required by the Department including, but

not limited to, disclosure of any prior violations of this Part, of federal or state labor laws, or

of other state or federal laws governing the employment of child performers and disposition

thereof;

(4) a signed acknowledgement that the applicant has read, understands, and agrees to abide

by the laws, rules, and regulations applicable to the employment of child performers and

understands that the failure to do so may result in the suspension or revocation of the

certificate or a denial of a renewal of such certificate; and

(5) any additional information deemed relevant by the Commissioner.

(c) In addition to the information required under subdivision (b) of this section, an applicant for

an Employer Certificate of Group Eligibility shall also provide to the Commissioner:

(1) a description of the manner or role in which the group of children will be employed;

(2) the date(s) of such use;

(3) the physical address of the location of such use;

(4) the name and contact information of the employer’s on site representative;

(5) the approximate number of children to be employed under such certificate; and

(6) the name and contact information of the employer’s on site representative.

(d) An application for an initial or renewal Employer Certificate of Eligibility or an Employer

Certificate of Group Eligibility shall be accompanied by a fee in an amount established by the

Commissioner. Such fee amounts are:

(1) three hundred fifty dollars ($350.00) for an initial Employer Certificate of Eligibility and

two hundred dollars ($200.00) for a renewal thereof; or

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(2) two hundred dollars ($200.00) for an initial Employer Certificate of Eligibility or

renewal thereof for employers operating theaters containing fewer than five hundred seats;

or

(3) two hundred dollars ($200.00) for an Employer Certificate of Group Eligibility.

(e) An Employer Certificate of Eligibility shall be valid for a period of three years from the date

of issuance unless suspended or revoked pursuant to Subpart 186-9 of this Part. An application

for renewal of an Employer Certificate of Eligibility shall be submitted to the Department no

later than thirty days prior to the expiration of such certificate.

(f) An Employer Certificate of Group Eligibility shall be valid only for the duration of the

performance or appearance for which such certificate was granted, and in no case for more than

two days of work, which need not be consecutive. The Employer Certificate of Group Eligibility

shall be maintained by the employer, together with a list of children to be covered by such

certificate, and the written consent of the parent or guardian of each listed child and shall be

available for inspection on site during the covered performance or appearance. The list of

children shall identify each child by the true and stage name and the age of the child, and the

name and address of the child’s parent or guardian.

(g) An Employer Certificate of Eligibility or Employer Certificate of Group Eligibility shall not

be issued, or an Employer Certificate of Eligibility shall not be renewed if:

(1) all requirements set forth in subdivisions (a) through (d) of this section have not been

met;

(2) a civil penalty previously imposed on the employer for a violation of laws or regulations

governing the employment of child performers has not been paid as of the date of

application;

(3) the Commissioner finds that the employer has violated any provision of Article 4-A of

the Labor Law of the State of New York, Section 7-7.1 of the Estates, Powers and Trusts

Law of the State of New York, Section 35.01 of the Arts and Cultural Affairs Law of the

State of New York and/or any provision of this Part within three years of the last assessment

of a civil penalty against the employer under this Part, or has been found to have committed

serious violations of other state, federal or local laws with regard to the employer’s

employment of child performers or has otherwise demonstrated a lack of responsibility in

the employment of child performers of such seriousness as to warrant the refusal to issue or

renew an Employer Certificate of Eligibility; or

(4) the Commissioner has reasonable cause to believe that the employer has employed or

will employ any child performer in any manner that may be hazardous or detrimental to the

physical or mental health, morals, education, or general welfare of the child performer(s).

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§ 186-4.3 Notice of use of child performers.

(a) No employer shall employ child performers without having first notified the Commissioner

of its intent to employ child performers. Such notice shall include:

(1) the date(s) and expected duration of such use;

(2) the complete physical address of the location of such use;

(3) the approximate number of child performers the employer will use;

(4) the name and contact information of the employer’s on site representative; and

(5) any other information deemed necessary by the Commissioner.

(b) Such notice shall be provided in writing at least two business days prior to the

commencement of the use of the child performer(s), which may be updated during production as

necessary.

(c) No notice of use shall be required to employ a group of children under an Employer

Certificate of Group Eligibility.

(d) Notices required under this section shall be submitted to:

New York State Department of Labor

Division of Labor Standards

Permits and Certificates Unit

Building 12, Governor Averell Harriman State Office Campus

Albany, New York 12240

Fax # (518) 457-2731

or to a web address established by the Commissioner for electronic transmission of such notice.

§ 186-4.4 Proof of Child Performer Permit.

(a) Except as otherwise provided in this section, no employer shall employ a child performer

unless:

(1) at or before the start of employment, the parent or guardian has given the employer a

copy of a currently valid Temporary Child Performer Permit or Child Performer Permit, and

by the expiration date of such permit, has given the employer an updated permit;

(2) if the employment is paid, information on the child performer trust account and funds

transfer thereto is attached to the employer’s copy of the Child Performer Permit or, in the

case of a Temporary Child Performer Permit, provided to the employer within fifteen days

from the issuance of such Temporary Child Performer Permit;

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(3) a copy of the Temporary Child Performer Permit or Child Performer Permit is at the

workplace and available for inspection; and

(4) the parent or guardian has provided the employer with current emergency contact

information and authorization to provide emergency medical treatment for the child

performer.

(b) Children employed under an Employer Certificate of Group Eligibility shall not be covered

by subdivision (a) of this section. Instead, no employer shall employ such a group of children

unless at or before the start of employment:

(1) if the employment is to be paid, the necessary information on the child performer trust

account and funds transfer thereto has been collected from the parents or guardians by the

employer or entity providing the group of children; and

(2) the employer has access to current emergency contact information and the authorizations

of parents or guardians to provide emergency medical treatment for each child either

directly or from a responsible official of the entity providing the group of children.

§ 186-4.5 Trust account transfers by the employer.

(a) An employer of a child performer shall obtain from the parent or guardian the information

necessary to enable the employer to transfer funds into a child performer trust account for the

child in accordance with Article 7, Section 7-7.1 of the Estates, Powers and Trusts Law. The

information shall be obtained on or before the start of paid employment, except that up to fifteen

days is allowed if a Temporary Child Performer Permit has been issued giving the child’s parent

or guardian up to fifteen days to establish the account.

(b) Each employer, or payroll service company, of a child performer shall transfer fifteen percent

or more , as specified by the parent, guardian or custodian in writing, of the child performer’s

gross earnings from the employer into the child performer trust account.

(1) If the performance contract is for a period of thirty days or less, the employer or payroll

service company is required to transfer not less than fifteen percent of the child performer’s

gross earnings to the custodian of the child performer trust account within thirty days

following the final day of employment. Such transfer shall be made in accordance with

Article 7 Part 6 of the Estates, Powers and Trusts Law, the Uniform Transfers to Minors

Act.

(2) If the performance contract is for a period longer than thirty days, the employer or

payroll service company shall transfer (by check or electronic means) not less than fifteen

percent of the child performer’s gross earnings to the custodian of the child performer trust

account every payroll period in accordance with Article 7 Part 6 of the Estates, Powers and

Trusts Law, the Uniform Transfers to Minors Act.

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(c) The employer or payroll service company shall provide the parent or guardian with a written

record of deductions from the child performer’s gross wages and notification of transfer of funds

to the child performer trust account within five business days of such transfer. The notification

of transfer may be incorporated into the child’s pay stub.

(d) If the parent or guardian has not provided the employer with the information necessary to

transfer funds into a child performer trust account, the employer shall transfer fifteen percent of

the child performer’s gross earnings to the Comptroller for deposit into the Child Performer

Holding Fund for the benefit of the identified child performer. Such transfers shall be made with

the same frequency and timeliness as required for transfers to an existing child performer trust

account. When making required transfers, the employer or payroll service company shall

provide the Comptroller with the child performer’s given name and professional name if

different from the given name, last known mailing address; and if known: permanent address,

date of birth, social security number, the name and address of the child’s parent(s) or guardian(s)

and their home and business phone numbers, and such other identifying information as the

Comptroller may require.

§ 186-4.6 Provision for a responsible person.

(a) Every child performer under the age of 16 shall be assigned a responsible person at least 18

years of age, whose duties shall be to accompany the child throughout the work day and to

monitor the child’s safety and well-being. The employer shall allow the responsible person to be

within sight or sound of the child at all times during the workday.

(b) Except as otherwise provided in this section, the parent or guardian shall designate the

responsible person and may choose to serve as the responsible person for his or her own child

under the age of 16. The parent or guardian may designate another adult at least 18 years of age,

including another child performer’s parent or guardian, to serve as the responsible person for the

first parent’s or guardian’s child.

(c) If a parent or guardian fails to designate a responsible person, or a child under 16 is without a

responsible person on any day, the employer shall designate a responsible person for that child.

Such responsible person may be responsible for more than one child.

(d) Notwithstanding subsections (b) and (c) of this section, in live theater or other live

performance, where it is physically impracticable for the employer to permit a responsible person

designated by the parent or guardian to accompany a child under 16, the employer may either

employ a responsible person for the child or provide the responsible person designated by the

parent or guardian with facilities to observe and hear the child through electronic or other

appropriate means, or both. Where the employer elects to employ a responsible person, the

employer shall notify the parent or guardian in writing of the name of the responsible person,

who may be responsible for more than one child, and shall, at the employer’s election, either:

(1) Obtain the written agreement of the parent or guardian, which shall not be unreasonably

withheld or delayed; or

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(2) Provide the parent or guardian with an opportunity to object to the responsible person

and provide a mechanism to timely address any reasonable objections in the best interest of

the child.

(e) The responsible person shall not be assigned any duty by the employer that interferes with the

responsible person’s duties to the child performer(s).

(f) Notwithstanding the foregoing, when a group of children is employed under an Employer

Certificate of Group Eligibility, the employer or the entity providing the group of children must

provide at least one responsible person for every 20 children under the age of 16 or fraction

thereof, to accompany the group throughout the work day and to monitor the children’s safety

and well-being. Parents or other adults over 18 years of age may serve as responsible persons for

the group.

(g) Nothing in this section shall diminish the employer’s responsibility to ensure the safety and

well being of child performers.

§ 186-4.7 Provision of a nurse for certain infants.

(a) When child performers between the age of fifteen days and six weeks of age are employed, a

nurse and a responsible person must be provided for each three or fewer babies. When infants

from age six weeks to six months are employed, one nurse and one responsible person must be

provided for each ten or fewer infants. Such nurse shall be a Registered Nurse with significant

experience in pediatric practice.

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SUBPART 186-5

EDUCATIONAL REQUIREMENTS

Sec.

186-5.1 Educational requirements.

§ 186-5.1 Educational requirements

(a) No child performer who is required by law to be enrolled in and attend school shall be

without educational instruction and unemployed for a period longer than ten consecutive days

while the school of enrollment is in session.

(b) A child performer employed in the state of New York shall fulfill the educational

requirements applicable to the school district in which he or she resides or the private school that

he or she attends, including those relating to minimum attendance and academic requirements.

(c) Nothing in this Subpart shall limit the authority of a child’s school officials, in cooperation

with the parent or guardian, to develop alternative methods by which a child performer may

satisfy his or her educational requirements.

(d) The requirements of this Subpart shall not apply to children employed under an Employer

Certificate of Group Eligibility.

(e) The requirements of paragraphs (e)(1) through (e)(12) below shall apply to a child performer

only on school days and only when the child performer is not otherwise receiving educational

instruction due to his or her employment schedule. They shall apply to home-schooled and

distance education students, except as otherwise provided in (e)(4), as well as to children being

instructed by a teacher provided by the employer.

(1) The employer shall provide a child performer with time during the workday to enable the

child to fulfill his or her educational requirements. The educational time shall average at

least three hours per school day, on a weekly basis.

(2) The employer shall set aside space(s) where instruction, tutoring and study can take

place. Such space(s) shall be clean and well lit and shall have sufficient work surfaces,

chairs, equipment and supplies necessary for instruction.

(3) During periods of instruction, tutoring and study, the space set aside shall be used

exclusively for those purposes. Persons not participating in those activities shall not be

allowed in the space, except for a responsible person choosing to remain within sight or

sound of a child performer, subject to the approval of the teacher in conjunction with the

production company. A parent, guardian or other person tutoring a home-schooled child

shall be provided appropriate space to do so.

(4) The employer shall provide a teacher to a child performer, other than a home-schooled or

distance education student who is receiving appropriate instruction during the school day

through those means:

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(i) from the third day of missed educational instruction through the remainder of the

child’s employment in the production; or

(ii) from the first day of missed educational instruction through the remainder of the

child’s employment in the production, if the child was guaranteed three or more

consecutive days of employment.

(5) The provided teacher must either be certified or have credentials recognized by the State

of New York. A check shall be conducted of New York State and national sex offender

registries, and the results shall be considered in accordance with Article 23-A of the

Correction Law.

(6) A provided teacher shall provide instruction to the child or children for an average of at

least three hours per school day on a weekly basis. A minimum of one hour of instruction

shall be provided on each school day. No period of less than twenty minutes duration shall

count as school time. On any day that the minor attends his or her regular school, the

employer shall count no more than three hours of the hours attended per day at the minor’s

regular school as school time.

(7) Extra teaching time above three hours per day provided to the child performer

may be “banked” and “spent” on another day in the same week or another week, subject to

the following limit: no more than five hours of banked teaching time may be carried over

from week to week.

(8) The employer shall provide at least one teacher for every ten children or fraction thereof

required to be taught at the workplace. For each group of up to ten students, the employer

shall provide at least one teacher who is appropriately certified or otherwise competent to

teach students in the applicable grade ranges and subject areas, as determined by the school

district or non-public school in which the child is enrolled.

(9) The employer shall require the teacher to prepare written reports for each student whom

the teacher has taught, covering dates and hours of attendance, lesson plans performed,

grades, etc. The teacher shall give or send these reports to the minor’s parent or guardian

and to the school district in which the minor resides or the private school that the minor

attends, at intervals required by the school and at the end of the minor’s employment.

(10) It is the responsibility of the child performer’s school, the parent or guardian, and the

provided teacher to work together to determine and carry out the child performer’s education

plan and curriculum.

(11) The teacher shall give the employer a copy of the record of dates and hours of

instruction for each child performer. The teacher shall not give the employer any other

educational information regarding an individual child without first obtaining written parental

consent. A parent or guardian may discuss any extra educational support or specialized

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teaching his or her child performer needs with the employer and/or may give written consent

allowing the teacher to discuss such needs with the employer.

(12) If the school that the child performer usually attends starts:

(i) less than nine hours after his or her dismissal time from work in live theater or other

live performance, or

(ii) less than twelve hours after his or her dismissal from work outside of live theater or

other live performance,

the child performer shall be instructed the following day at the employer’s place of business,

except that the parent or guardian shall have the option of having the child performer attend

instruction at the school that he or she usually attends on such days.

(f) During any hiatus or layoff period of six days or less occurring while school is in session, the

employer shall continue to provide a teacher pursuant to the requirements of this section to a

child performer who was receiving instruction from a set or location teacher and who is working

more than 100 miles from his or her regular school, unless the child returns to attend his or her

regular school.

(g) A child performer receiving instruction from a teacher provided by the employer pursuant to

this section shall not be declared absent from school while working pursuant to the permitting

and education requirements of this Part. The school district in which the child performer resides

and attends school shall determine whether it will accept the student’s work, grades and/or credit

that the child performer completes pursuant to this section.

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SUBPART 186-6

HOURS AND CONDITIONS OF WORK

Sec.

186-6.1 General conditions.

186-6.2 Hours and days of work.

186-6.3 Meal periods.

186-6.4 Rest and recreation.

186-6.5 Safety and health.

§ 186-6.1 General conditions.

No employer shall employ a child performer in any activity that may be hazardous or detrimental

to the physical or mental health, morals, education, or general welfare of the child performer.

Infants under fifteen days old may not be employed as child performers.

§ 186-6.2 Hours and days of work.

(a) Outside of live theater and other live performance, a child performer may be employed no

earlier than 5:00 a.m. on any day, no later than 10:00 p.m. on evenings preceding school days,

and no later than 12:30 a.m. on the mornings of non-school days.

(b) In live theater and other live performance, a child performer may be employed no earlier than

5:00 a.m. on any day, no later than 12:00 midnight on evenings preceding school days, and no

later than 12:30 a.m. on the mornings of non-school days.

(c) A child performer shall receive at least twelve hours rest between the time that the child

performer is dismissed on one workday and the time that the child performer is required to be at

the place of employment the following day. When a child performer provides services at his or

her residence, the child performer shall receive a break of at least twelve hours between the time

the child performer is not required to provide services on one day and the child performer

resumes providing services the following day.

(d) For the purpose of enabling a one-day assignment to be completed, for child performers from

six months through seventeen years of age, the maximum daily hours of work and of presence at

the workplace allowed in this section may be increased by up to two hours but the child cannot

then work the following day.

(e) On days when a child performer works after attending school, the maximum daily hours of

presence at the workplace allowed in this section is reduced by three hours. When a child

performer provides services at his or her residence after attending school, the maximum daily

hours for providing services is reduced by three hours.

(f) In all covered employment, a child performer under six years of age is limited to the

following hours:

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(1) Infant child performers at least fifteen days but not yet six months of age may be

permitted to remain at the place of employment for a maximum of two hours per workday.

The day’s work shall not exceed twenty minutes.

(2) Child performers at least six months but not yet two years of age may be permitted at the

place of employment for a maximum of four hours per workday. Such four-hour period shall

not consist of more than two hours of work; the balance of the period shall be rest and

recreation.

(3) Child performers at least two years but not yet six years of age may be permitted at the

place of employment for a maximum of six hours per workday. Such six-hour period shall

not consist of more than three hours of work; the balance of the period shall be rest and

recreation and/or education.

(g) In live theater and other lives performance, a child performer at least six years but not yet

eighteen years of age:

(1) may be permitted at the place of employment for a maximum of ten hours per day during

the production’s rehearsal period, its official opening day, and throughout the duration of its

run. The ten-hour period may include no more than eight hours of work when school is in

session and nine hours of work when school is not in session. All of the educational

requirements of Subpart 186-5.1 must nevertheless be met. The maximum hours of work set

forth above assume that sufficient educational hours will be banked as provided for by

section 186-5.1(e)(7); and

(2) may be permitted at the place of employment for a maximum of twelve hours per day

during the period of technical rehearsals and preview performances. The twelve-hour period

may include no more than seven hours of work when school is in session and nine hours of

work when school is not in session.

(h) Outside of live theater and other live performance, a child performer at least six years but not

yet nine years of age may be permitted at the place of employment for a maximum of eight hours

per workday. When school is in session, the eight-hour period shall include no more than four

hours of work, at least three hours of schooling, and up to one hour of rest and recreation. When

school is not in session, the eight-hour period shall include no more than six hours of work and

up to two hours of rest and recreation.

(i) Outside of live theater and other live performance, a child performer at least nine years but

not yet sixteen years of age may be permitted at the place of employment for a maximum of nine

hours per workday. When school is in session, the nine-hour period shall include no more than

five hours of work, at least three hours of schooling, and up to one hour of rest and recreation.

When school is not in session, the nine-hour period shall include no more than seven hours of

work and up to two hours of rest and recreation.

(j) Outside of live theater and other live performance, a child performer at least sixteen years but

not yet eighteen years of age may be permitted at the place of employment for a maximum of ten

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hours per workday. When school is in session, the ten-hour period shall include no more than

six hours of work, at least three hours of schooling, and up to one hour of rest and recreation.

When school is not in session, the ten-hour period shall include no more than nine hours of work

and up to one hour of rest and recreation.

(k) In all covered employment, when any child performer at least fourteen years but not yet

eighteen years of age obtains permission from school authorities to work during school hours for

up to two consecutive days, the working hours for such child performer during either or both of

such days may be extended to but shall not exceed eight hours per day.

(l) The employment time limits specified in this Subpart shall apply to the child performer and

not to any one employer. Thus, a child performer whose employment is limited to 7 hours of

work and 9 hours of presence at the work place per day may not exceed these limits if working

for more than one employer in the same day. The child performer’s parents or guardians bear the

responsibility for ensuring that a child performer does not exceed his or her daily limits when

working for more than one employer in the same day.

(m) Employers shall keep a record of each child performer’s starting and ending times, the

amount of time present at the workplace, and the amount of time worked on each workday.

(n) With respect to any child performer providing artistic or creative services at the child

performer’s residence, this Subpart shall not apply to the number of hours the child performer

may be present at the residence, but shall instead apply to the number of hours the child

performer may provide such services.

§ 186-6.3 Meal periods.

(a) The following provisions are in addition to Section 162 of the New York State Labor Law

governing meal periods.

(b) Meal periods are included in the hours of rest and recreation and the hours of presence at the

workplace.

(c) The time when the meal period occurs may not be more than 6 hours from the time the child

performer is required to arrive at the place of employment or more than 6 hours from the end of

the preceding meal period. When the child performer is providing artistic or creative services at

the child performer’s residence, the time when the meal period occurs may not be more than 6

hours from the time the child performer began providing such services.

(d) If a child performer is required to eat on the premises, a suitable place for that purpose shall

be provided by the employer.

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26

§ 186-6.4 Rest and recreation.

(a) The employer shall permit all child performers to take at least ten minutes of the rest period

time or down time to which they are entitled by Section 186-6.2 during every four hours of work

time.

(b) Rest and recreation time shall be provided in the middle of the work period to the extent

practicable.

(c) The employer shall provide a safe, clean, secure, and age-appropriate place for the child

performer to play, rest, or study. The place shall include enough space to accommodate

reasonable equipment and supplies brought by the parent or guardian, including stroller, crib,

playpen, diapers, and food.

(d) Where age appropriate, the employer shall provide a crib or playpen at the workplace, unless

provided by the parent or guardian. The parent or guardian shall ensure that the child has access

to sufficient nutritious food and diapers. The child’s established feeding and sleeping routines

shall be maintained, to the extent possible, including adequate opportunity and appropriate space

for breastfeeding when it falls within the child’s routine.

(e) The employer may not hold child performers when work is finished in order to ensure the full

rest and recreation time required by this Part is provided to the child performer.

§ 186-6.5 Safety and health of child performers.

(a) The employer shall provide the child performer and his or her parent or guardian with

information and instruction to protect the health or safety of the child performer, including any

potential hazards associated with the specific activities that he or she will be expected to

perform. In addition, a child performer must be given adequate instruction and rehearsal time for

the specific activities he or she is to perform in order to protect his or her health or safety.

(b) A child performer and his or her designated responsible person shall be given orientation

training to the workplace, other than the child performer’s own residence, that is adequate and

appropriate to their ages. Orientation training should include:

(1) Health and safety precautions for the venue or location;

(2) Traffic patterns backstage or on location;

(3) Safe waiting areas for child performers backstage or on location;

(4) Restricted areas;

(5) Location of rest areas/rooms, toilets, makeup areas, and other relevant rooms;

(6) Emergency procedures; and,

(7) Employer designated persons to inform of hazardous conditions and what actions to take.

(c) Notwithstanding the foregoing, when a group of children is employed under an Employer

Certificate of Group Eligibility, the information required in subdivisions (a) and (b) of this

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section shall be provided to the children and to the designated responsible person(s) for the

group.

(d) In addition to the safety and health provisions that otherwise apply to child performers, a

child performer younger than six months of age shall not be exposed to light of greater than one

hundred (100) foot candlelight intensity for more than thirty (30) seconds at a time, shall not be

exposed to sound of greater than eighty (80) decibels at any time, and shall not be exposed to

sound of greater than seventy (70) decibels for more than 30 minutes.

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SUBPART 186-7

RECORDS; CONTRACTS

Sec.

186-7.1 Contracts with more stringent requirements.

186-7.2 Maintenance and production of records.

§ 186-7.1 Contracts with more stringent requirements.

Nothing in this Part shall prevent the employer of a child performer from complying with a

collective bargaining agreement or other contract that establishes more stringent standards than

those contained in this Part.

186-7.2 Maintenance and production of records.

(a) Every employer of a child performer shall, for not less than six years after the termination of

a child performer’s employment, maintain and preserve all records required by this Part and any

other records required by Article 6, Section 195 of the New York State Labor Law.

(b) Records required by this Part include all employer certificates, and for each child performer

employed under a Temporary Child Performer Permit or Child Performer Permit:

(1) a copy of each Child Performer Permit;

(2) the child performer’s given and professional names, last known mailing address,

permanent address, date of birth, and social security number;

(3) the names and addresses of the parents or guardians and their home and business phone

numbers;

(4) the record of each child performer’s starting and ending times, the amount of time

present at the worksite, and the amount of time worked on each work day;

(5) the amounts of gross wages earned and paid in each pay period, deductions, and net

wages;

(6) the amounts transferred into the Child Performer Trust Account, the account number,

and the name and address of the financial institution holding the account;

(7) the amounts transferred to the New York State Comptroller for deposit into the Child

Performer Holding Fund;

(8) the written agreements between parents or guardians and the employer on responsible

persons, made in accordance with subsection 186-4.6(d)(1); and

(9) the record of dates and hours of instruction provided to each child performer by a set or

location teacher.

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(c) For each child employed under an Employer Certificate of Group Eligibility, the employer

shall keep a record of:

(1) the name and physical and mailing addresses of any entity that has provided the group of

children to the employer and the name, address, and phone number of a responsible official

of the group;

(2) the written permission of a parent or guardian for every child participating, or the signed

statement of a responsible official of the entity that has provided the group of children

attesting that the entity has obtained and will keep such written permissions on file in its

records; and

(3) if the employment is paid, the information listed in subsection (b) of this section, except

items (1), (4), (8) and (9).

(c) Every employer, including those who maintain their records at a place outside of New York

State, shall make such records or sworn certified copies thereof available upon request of the

Commissioner at the place of employment or at such other place within New York State as

directed by the Commissioner.

(d) All information and documents related to this Part shall be open to inspection by the

Department, school attendance and truancy officers, the State Education Department or local

school district, and the State Comptroller.

(e) The failure to produce copies of any Employer Certificate or Child Performer Permit upon

demand of a representative of the Commissioner, a school attendance or truancy officer, a

representative of the State Education Department or local school district, or the Comptroller shall

be deemed to be prima facie evidence of the illegal employment of a child performer.

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30

SUBPART 186-8

VARIANCES

Sec. 186-8.1 Variances.

§ 186-8.1 Variances.

(a) Where the employer would incur significant hardship in complying with one or more

provisions of this Part he or she may apply to the Department for a variance from such

provisions.

(b) The request for a variance shall be in writing and shall spell out the specific reasons for the

variance requested, the period of time the variance will be in effect, the performers affected by

the variance, and any additional or alternative provisions the employer will make to protect the

child performers in conformity with this Part.

(1) A request for variance shall be received in the Permits and Certificates Unit of the

Division of Labor Standards of the New York State Department of Labor at the address or

fax specified in section 186-4.3(f) no later than two business days before the requested

modifications shall take effect. A request for expedited variance, received less than two

business days before the requested modifications are to take effect, will be considered

immediately by the Department to the greatest extent feasible.

(2) If the Commissioner approves, the Department shall issue a written notice to the

employer of such approval. Such notice shall be kept at the place of employment and made

available to representatives of the Department upon request.

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31

SUBPART 186-9

SUSPENSION OR REVOCATION OF PERMITS AND CERTIFICATES

Sec.

186-9.1 Suspension or revocation of Employer Certificates of Eligibility.

186-9.2 Suspension or revocation of Child Performer Permits.

186-9.3 Notice and hearing.

§ 186-9.1 Suspension or revocation of Employer Certificates.

The Commissioner may suspend or revoke an Employer Certificate of Eligibility or Employer

Certificate of Group Eligibility for good cause shown, or where it is shown that the employer:

(a) provided inaccurate or false information on an application;

(b) has committed a violation of this Part that may be hazardous or detrimental to the physical or

mental health, morals, education, or general welfare of a child performer;

(c) has not transferred the required earnings to the child performer’s trust account or to the State

Comptroller;

(d) has caused the child performer to engage in or be scheduled to engage in an activity that may

be hazardous or detrimental to the physical or mental health, education, morals, or general

welfare of a child performer; or

(e) being the holder of an Employer Certificate of Group Eligibility, employed a child without

the written consent of that child’s parent or guardian.

§ 186-9.2 Suspension or revocation of Child Performer Permits.

The Commissioner may suspend or revoke a Child Performer Permit for good cause shown or

where it is shown that the parent or guardian of a child performer:

(a) has provided inaccurate or false information on an application;

(b) has committed a violation of this Part that may be hazardous or detrimental to the physical or

mental health, education, morals, or general welfare of a child performer;

(c) has not provided the required documentation of the establishment of a child performer’s trust

account to the employer, within fifteen days of the commencement of the child performer’s

employment; or

(d) has caused the child performer to engage in or be scheduled to engage in an activity that may

be hazardous or detrimental to the physical or mental health, education, morals, or general

welfare of a child performer.

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§ 186-9.3 Notice and hearing.

(a) Where the Commissioner intends to suspend or revoke a Child Performer Permit, notice shall

be given to the parent or guardian of the child performer, and the parent or guardian shall be

given an opportunity to be heard.

(b) Where the Commissioner intends to suspend or revoke an Employer Certificate of

Eligibility or Employer Certificate of Group Eligibility, notice shall be given to the employer,

and the employer shall be given an opportunity to be heard.

(c) Notice shall be given in writing and shall be mailed to the address specified on the

application for the Child Performer Permit or Employer Certificate of Eligibility or Employer

Certificate of Group Eligibility, or by personal service to a person of suitable age and discretion

at that address or the place of employment.

(d) The Commissioner shall schedule a hearing as soon as practicable for the employer, parent or

guardian to be heard.

(e) Notwithstanding the above, the Commissioner may summarily suspend a Child Performer

Permit, or Employer Certificate of Eligibility, or Employer Certificate of Group Eligibility prior

to a hearing when he or she has cause to believe that such summary suspension is in the best

interests of the child performer, including but not limited to, the belief that the child performer

has been or will be exposed to circumstances or events hazardous or detrimental to the physical

or mental health, education, morals, or general welfare of the child performer. When the

Commissioner takes such action, a hearing shall be scheduled within five business days to

determine whether the summary suspension shall remain in effect, and, if so, under what terms

and conditions and for what period of time.

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SUBPART 186-10

PENALTIES AND APPEALS

Sec.

186-10 Penalties and Appeals.

186-11 Effective Date.

§ 186-10 Penalties and Appeals.

(a) Where the Commissioner finds that a child performer’s employer has violated any provision

of Article 4-A of the Labor Law or of these regulations, the Commissioner may, in addition to

revocation or suspension of the Employer Certificate of Eligibility pursuant to section 186-4.2 of

this Part, issue an order describing the nature of the violation and assess a civil penalty therefor.

Each violation shall constitute a separate offense.

(b) The civil penalty shall not exceed $1,000 for the first violation, $2,000 for the second

violation and $3,000 for the third or subsequent violation.

(c) In determining the penalty to be assessed against an employer, the Commissioner shall give

due consideration to the size of the employer’s business, the good faith of the employer, the

gravity of the violation, the history of previous violations, and the failure to comply with other

provisions of the Labor Law.

(d) Any final order issued by the Commissioner under this Part shall be subject to review by the

Industrial Board of Appeals pursuant to Labor Law, section 101 prior to any appeal to a court of

competent jurisdiction.

§ 186-11 Effective Date.

No penalty or sanction shall be imposed for any violation of this Part that occurs, and is cured,

prior to June 1, 2013.

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Reference:  01345912  Appendix  Number  K-­‐384/A  

(P/2057/18)        Weight  restriction  in  the  modeling  industry  bill,  Htsha"b  -­‐2012            This  bill  was  discussed  on  first  reading  in  the  Knesset  on  twentieth  day  of  Eyar    Htsha"a  (May  24,  2011)  and  transferred  to  the  Labor  Welfare  and  Health  committee.            The  bill  is  submitted  –  no  reservations  –  For  Second  Reading  and  Third  Reading  on  nineteenth  day  of  Adar  Htsha"b  (March  13,  2012).            There  were  no  requests  for  permission  to  speak  submitted  to  the  bill.            Initiators:  MK  Rachel  Adato,  Danny  Danon        

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Bill  for  the  second  and  third  reading    

Appendix  Number  K-­‐384/A  (P/2057/18)  

 Weight  Restriction  in  the  modeling  industry  Act,  Htsha"b  -­‐2012    

 Definitions   1.  In  this  Act  –    

"Model"  –  a  person  having  his  picture  taken  in  order  to  use  the  image  for  advertising,  promotion  or  representation  of  a  product,  service  or  brand;  

 "BMI"  (BMI  –  Body  Mass  Index)  –  the  ratio  between  a  person's  body  weight  in  kilograms  and  height  in  meters  squared;  

 "Brand"  –  trade  name,  trademark  or  logo;  

 "Advertiser"  –  a  person  initiating  advertising  to  his  product,  the  service  that  he  provides  or  his  brand;  

 "Advertising  agent"  –  a  person  who  get  paid  for  producing  an  advertisement  for  an  advertiser.  

 "Advertisement"  –  a  photographic  advertisement  to  a  product,  service  or  brand,  in  print,  electronic  or  other  technological  devices,  designed  or  available  to  the  public;  

 "Underweight"  –  body  mass  index  value  less  than  –18.5  for  an  adult,  or  less  then  the  values  that  in  the  supplement  –  for  a  minor;  

 "Minister"  –  Minister  of  Industry,  Trade  and  Employment.  

 Provide  a  valid  certificate  as  a  condition  for  advertisement  

2.     (A)  the  advertising  agent  will  not  produce  an  advertisement  showing  a  model  and  advertiser  will  not  show  advertisement  as  stated,  unless  the  model  was  providing  a  medical  certificate  approving  that  he  is  not  underweight,  according  to  the  calculation  of  the  body  mass  index  performed  by  a  medical  examination  during  the  three  months  prior  to  the  model  photoshoot  for  the  advertisement  (In  this  Act  –  a  valid  certificate).  

 

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(B)  A  person  who  got  a  valid  certificate  shall  keep  a  copy  of  it  for  the  fixed  period  of  limitation  in  section  5  of  the  Statute  of  Limitations,  Hatshi"ch  -­‐1958.1  

   Requirement  of  clarification  regarding  the  use  of  graphical  editing  for  narrowing  circumferences  

3.     (A)  An  advertising  agent  who  produce  an  advertisement  showing  a  man's  image,  using  graphic  editing,  including  computer  software,  to  narrow  the  scope  of  the  body,  will  include  in  the  advertisement  a  clarification  that  the  advertisement  preparation  included  the  use  of  graphics  editing  for  narrowing  circumferences;  Advertiser  will  not  show  advertisement  unless  it  includes  a  clarification.  

 (B)  Clarification  under  subsection  (A)  will  be  shown  in  a  conspicuous  place  and  in  color  and  size  are  obvious,  on  space  not  less  than  7%  of  the  total  advertising  space  of  the  advertisement.  

 (C)  An  advertising  agent  who  produced  an  advertisement  under  subsection  (A)  shall  keep  the  original  photographs  upon  which  graphic  editing  was  done,  for  the  period  time  referred  to  in  Section  2(B).  

 Restrictions  

4.     (A)  the  provisions  of  sections  2  and  3  shall  not  apply  to  advertisement  that  is  not  aimed  for  a  commercial  purpose,  if  the  advertiser  has  proved  that  it  has  a  clear  public  interest  in  publicity,  and  the  advertising  is  on  the  proper  scope  and  under  the  provisions  of  any  law.  

 (B)  An  advertisement  will  not  be  considered  as  a  prohibited  advertisement  under  the  provisions  of  sections  2  or  3,  if  it  is  clear  that  the  advertisement  is  not  designated  to  the  public  in  Israel,  either  because  of  the  nature  of  the  advertisement  or  the  way  it  broadcast  or  published.    

 The  preservation  of  law  

5.  This  Law  shall  add  to  the  provisions  of  the  law  and  not  detract  from  them.    Implementation  and  Regulations  

6.     (A)  the  Minister  charged  with  the  implementation  of  this  Act  and  may  make  regulations  on  any  matter  relating  to  its  implementation.  

 

                                                                                                               1  A  Book  of  Laws  Htshi"h,  pp.  112.  

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(B)  The  regulations  listed  below  require  the  approval  of  the  Employment,  Social  and  Health  Committee  of  the  Knesset:  

 (1)  The  formulation  of  the  valid  certificate;  (2)  The  formulation  of  the  clarification  referred  to  in  section  3  and  the  way  it  is  presented,  including  size,  location,  color,  and  font  size  and  shape;  (3)  Calculating  the  body  mass  index.  

 Commencement,  Application  and  transitional  provisions  

7.     (A)  the  commencement  of  this  Law  is  on  the  nineteenth  day  of  Tevet  Htsha"g  (January  1,  2013)  (hereinafter  –  the  effective  date)  and  it  will  apply  to  an  advertisement  taken  from  the  effective  date  and  on,  and  for  the  purposes  of  section  3  –  an  advertisement  done  using  graphical  editing  in  purpose  of  narrow  the  scope  of  the  body,  from  the  effective  date  and  on.  

 (B)  Notwithstanding  the  provisions  of  subsection  (A),  if  an  advertisement  is  under  an  agreement  to  be  taken  and  the  agreement  was  signed  prior  to  the  publication  of  this  Act,  the  provisions  of  Article  2  will  become  effective  on  the  end  of  one  year  from  the  date  the  agreement  is  signed  or  the  effective  date,  whichever  is  later.  

 Supplement  

 (Article  1,  definition  of  "Under  Weight")  

 Body  mass  index  values  for  minors:  

 Age     Girls     Boys  

 13     16     16  

 14     16.4     16.5  

 15     17     17  

 16     17.4     17.5  

 17     17.8     18  

   ************************************************************************************  

57

Through the Cloakroom…

A Fashionable Update on Legislation, Regulation and Politics in Washington.

Hilary Jochmans Jochmans Consulting, LLC

September 17, 2013

2

Introduction: What is the Cloakroom?

My background

Political Climate in DC

Issues to Follow Impacting the Fashion Industry

How You Can Stay Involved

3

POLITICAL CLIMATE: Looming Debt Ceiling and Government Shutdown

Intense Partisanship

Syria

Mid-term Elections

4

Legislative Issues of Note to the Fashion Industry: On-Line Sales Tax

Tax Reform

Immigration

Trade/Labor

Green Guides

Innovative Design Protection Act

5

On-Line Sales Tax: Legislation: The Marketplace Fairness Act

H.R. 684: Co-Sponsors: 66 Status: Referred to House Judiciary Committee

S. 743 Co-sponsors: 29 Status: Passed Senate 69 to 27 on May 6, 2013

Litigation: Amazon.com, LLC v. NYS Dept. of Taxation & Finance 81 AD3d 183

Tax Reform: An area of commonality between Democrats and Republicans

General agreement on corporate tax reform

Differences on individual tax reform: Democrats want to raise revenue;

Republicans want it to be revenue neutral Immigration: Legislation:

o In June, Senate passed a sweeping bill to provide a path to citizenship while also increasing border patrol and checks on workers’ status

o The House passed piecemeal bills, but no comparable broad legislation

Next Steps: o Is there the political will to pass comprehensive legislation in the

Republican-controlled House?

o Will legislation be more difficult in an election year?

o In the absence of legislation, should the Administration address the issue through executive order?

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Trade/Labor:

Trade Promotion Authority (TPA) o Legislation that lapsed in 2007 allows the White House to submit

trade agreements for a straight up-or-down vote without amendment.

o Will it be reauthorized this year?

o Could be key for Trans-Pacific Partnership (TPP)

TPP o Free trade agreement with 11 Asia Pacific countries

o In 19th round of talks

o President scheduled to attend meeting in Bali in October to advance

negotiations Generalized System of Preferences (GSP)

o A program design to promote economic growth in the developing

world by providing preferential duty-free entry for up to 5000 products when imported from 1 of 127 designated beneficiary countries and territories

o Current authorization expired July 31

o Legislation to renew the GSP through September 2015 was introduced in the House on July 17

Minimum Wage

o There is proposed legislation to increase the federal minimum wage

o Many states, including the District of Columbia, are looking to raise

their minimum wage

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Green Guides: Fair Trade Commission (FTC) issued updated guidance

Designed to help marketers ensure that claims they make about

environmental attributes of their products are truthful and non-deceptive The Commission can take action if a marketer makes an environmental claim

that is inconsistent with the Guides Innovative Design Protection Act: Would amend title 17 of the US Code to provide three years of protection for

registered fashion designs, after which they would enter the public domain

Championed by NY Senator Charles E. Schumer Advances made last year in support by trade groups and Senators

Has not yet been introduced in the 113th Congress

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How You Can Stay Involved: Find Your Congressional Representative:

www.House.gov

Find Your Senator:

www.Senate.gov

Track Legislation:

www.Thomas.gov

9

Hilary Françoise Jochmans: Hilary F. Jochmans is the President of Jochmans Consulting, LLC. She has over 15 years of political and government experience in Washington and New York. Most recently before founding the company, Hilary was the Director of the New York State Governor’s Office in Washington for both Andrew Cuomo and David Paterson, and the Deputy Director for Eliot Spitzer. In that capacity, she served as the Governor’s chief liaison with Congressional leadership, the NY Congressional delegation and federal agencies. In addition, she worked to develop and execute the Governor’s federal agenda and lobbying strategy to advance the priorities of the state. Hilary also spent 11 years on Capitol Hill working in the US Senate for Senator Tom Carper of Delaware and in the House of Representatives for Congressman Gary Ackerman, as well as several campaigns. Hilary is a native New Yorker and holds a B.A. from the University of Virginia, a J.D. from the George Washington University Law School and is admitted to the US Supreme Court Bar and the New York State Bar. She proudly completed the Fordham Law Fashion Boot Camp in 2012. Contact Information: Hilary Jochmans Jochmans Consulting, LLC 546 7th Street, SE Washington DC 20003 202.669.3585 HFJ@JochmansConsulting.com www.JochmansConsulting.com

STANLEY SHERWOOD www.sherwoodlaw.com

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CREATING A GLOBAL FASHION HOUSE

BUSINESS, LEGAL, FINANCIAL & TAX CONSIDERATIONS

STANLEY SHERWOOD www.sherwoodlaw.com

NYCLA-Fashion Law Subcommittee Third Annual Fashion Law Review

September 17, 2013 CASE STUDY: It is 2004. D (a/k/a Dalf) is a US citizen. He has no money but some say his that he has a creative potential as a fashion designer. His parents are well to do but they wanted him to go to medical school and will not support any of his design efforts. At the end of 2005 he stood outside 5th Avenue in front of Bendel’s hoping that some of his 10 piece collection would be sold. In fact, he was a hit and Bendel’s started to give him more orders than he could supply. His lawyer formed DALF LLC. He hired other designers and a business partner and started to source products via a Hong Kong sourcing agent. By 2008 he had many high end wholesale accounts and he was showing at Fashion Week. By 2010 he opened his first retail store and by 2012 he had 10 retail stores in major US cities and many wholesale accounts in the US. By 2013 some of the non-US fashion press started to write very positive stories about his collections and listed him among the top up and coming designers. In September 2013, D started to wonder whether his business had potential outside the US and started dreaming of being Alph _______.

I. THE DECISION TO GO INTERNATIONAL

A. Advantages and disadvantages B. Minimizing the risks

1. Smaller capital investment 2. Exporting 3. Limited upside?

C. Exporting US manufactured goods—exporting imported goods. D. Licensing

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1. Trade name and trade marks 2. Manufacturing rights 3. Franchisees 4. Quality control 5. Buying back the license

II. CREATING A FOREIGN BRANCH, SUBSIDIARY OR JOINT VENTURE

A. Branches

1. Defined—more than a representative office 2. Jurisdictional issues 3. Foreign country tax issues/”permanent establishment” 4. Acquiring licensee or franchisee

B. Subsidiaries

1. Example 2. Limitada, SA, GmbH, BV, NV, SpA 3. Capitalization and financing

C. JOINT VENTURES

1. A joint venture with licensee or landlord 2. Active versus passive business partners

III. US TAXATION OF INTERNATIONAL OPERATIONS FOR US PARENT COMPANIES

A. Tax Systems

B. US Taxation of International Operations

1. Worldwide taxation system. 2. Deferral of overseas income 3. Taxation of a foreign branch versus a subsidiary 4. Taxation of foreign joint ventures (Check-the-box rules)

C. Controlling versus minority interests

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D. Controlled Foreign Corporations (CFCs)

1. Defined 2. Subpart F income (immediate taxation-loss of deferral) 3. Exceptions to Subpart F

a. Manufacturing in country of incorporation b. Rendering services in country of incorporation-Example: buying

services, regional headquarters) E. Foreign Tax Credits

1. To avoid double taxation 2. Examples of limitation calculation on the foreign tax credit

F. Withholding Tax Versus Underlying Corporate-level Tax

IV. NON-US TAXATION

A. European overview B. Asian overview

C. Latin American Overview

V. THE ROLE OF TAX TREATIES

A. To avoid double taxation B. Overrides domestic law

C. Reduces withholding tax for qualified residents

D. Qualified residents

VI. TRANSFER PRICING

A. Defined

1. Tangible property sales 2. Intangibles (trademarks etc.) 3. Tangibles with “imbedded” intangible 4. Services

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5. Cost sharing versus contract R&D

B. Methods

1. Comparable Uncontrolled Price (CUP) 2. Resale Price (Gross Margin) 3. Cost Plus 4. Transactional Net Margin/CPM 5. Profit Split 6. CUT for intangibles—upfront fees plus royalties? 7. Loans-Intercompany

C. Contemporary Documentation

1. Started in the US-now a global concept 2. Mandatory versus highly-recommended countries 3. Penalties

D. Advanced Pricing Agreements

1. Advantages-Disadvantages 2. Unilateral, Bi-lateral or Multi-lateral? 3. Timing and Statistics

VII. FOREIGN COMPANY LAW

A. Non-US Legal Forms B. Common Law Versus Civil Law Countries

VIII. FOREIGN COMPANIES DOING BUSINESS IN THE US --If Dalf had been a foreign national

A. US subidaries versus branches B. Joint ventures

C. Debt-equity and Section 163(j) related party limitations

D. Transfer Pricing

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IX. NON-US COMPANIES DOING BUSINESS INTERNATIONALLY A. Similar issues but from a different parent country jurisdiction

B. Refence me to multiple other chapters

X. DESIGNER ISSUES

A. Residency/Immigration issues B. Tax Issues for the designer

C. Chief designer in one country-staff in another

D. Designing more than one line

XI. CUSTOMS AND INTERNATIONAL TRADE

A. Export licenses B. Import licenses—wildlife

C. First Sale Planning (a planning strategy to reduce US customs)

D. Inventory locked up in customs

E. Fines and penalties

F. Foreign customs and tariffs

G. Transfer pricing aspects

XII. BUYING BACK LICENSES

XIII. DUTY FREE BUSINESS

XIV. DIRECTLY OPERATED STORES

A. Buy versus lease

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B. Shop in shops

XV. REGIONAL HEADQUARTERS

A. Hong Kong, Singapore, Belgium B. Functions to be performed

XVI. BRANDS WHICH ARE CREATED OUTSIDE THE US

A. In general B. Luxury

C. Location of parent company

D. On being a US subsidiary of a foreign parent company

A. US acquisitions B. Foreign acquisitions

C. Stock versus assets

D. Integrating acquired brands

XVIII. GOING PUBLIC

A. Which market and exchange? B. Prada case (Hong Kong Exchange)

Stan Sherwood is an international tax lawyer and transfer pricing advisor. Until January 2000, he was an International Tax Partner at PricewaterhouseCoopers (PwC) in New York. He is listed in Euromoney's Guide to the World's Leading Transfer Pricing Advisors and in Euromoney's Guide to the World's Leading Tax Advisors. In addition to being a member of the Bar in New York, Mr. Sherwood is also a Certified Public Accountant.

Mr. Sherwood provides international tax, financial business and consulting services to global companies on cross-border transactions including: mergers and acquisitions; structuring and restructuring of international affiliates; integration of acquired companies; capitalization and financing; transfer pricing planning and documentation; structuring offshore trading companies and investment funds; foreign investment in the United States, including real estate; foreign country tax reduction and business strategies; tax treaty planning; intellectual property transfers; joint ventures; and many other matters involving U.S. and foreign country tax and corporate law. He has exposure to numerous industries and to senior management of a large number of companies throughout the world ranging from major multinational companies to emerging international companies (including E-commerce). He has been involved with many matters involving transfer pricing in the context of state and local taxation, including intangible holding companies and other special purpose entities.

Since 2000 he has been the advisor to several of the world's leading luxury and fashion brands and to sport and lifestyle brands... both large and small. In addition, his experience spans many other industries. His is part of the founding faculty in the Fashion Law Institute at Fordham University Law School in New York, where he teaches the course "Creating a Global Company: Business, Legal Financial Considerations," where he demonstrates how to take a small fashion start-up company and expands it into a global enterprise.

Mr. Sherwood also advises high-net-worth international individuals and their families with respect to the taxation and holding of U.S. assets. This includes advice with respect to the maintenance of non-residency status.

Joseph F. Murphy, Jr. is a Fashion Lawyer and Patent Attorney with broad Intellectual Property and Corporate Law experience, and a focus on Fashion Law. Mr. Murphy is Chair of the Fashion Law Subcommittee at the New York County (Manhattan) Lawyer’s Association (NYCLA), where he leads periodic programs on Fashion Law. He regularly lectures on the role of Patents in protecting Fashion at venues including the Fashion Institute of Technology (FIT). He is also the Legal Editor of FashionLawCenter.com - a Fashion Law oriented website affiliated with FIT. He has also been an Adjunct Professor at New York University (NYU), where he taught “Valuation of Intellectual Property”. His clients have included Fashion Designers such as Leonid Gurevich, and Beauty product makers such as makeup expert Trish McEvoy. Mr. Murphy has practiced in solo, law firm, and corporate settings, including service as Vice President Of Intellectual Property and Chief Legal Officer of a public company. He is currently in solo practice at the Law Office of Joseph F. Murphy, and maintains a website at www.legallyfashionable.com He is a co- author of the forthcoming book: “The American Bar Association’s Legal Guide to Fashion Design“ (to be released in 2013). He holds a Bachelor of Science in Electrical Engineering from Marquette University (with a concentration in Optics), and is a graduate of Franklin Pierce Law Center (now known as the University of New Hampshire Law School – Franklin Pierce Center for Intellectual Property), where he received a J.D. with an emphasis on Intellectual Property. He is admitted to practice law in Massachusetts, New York, Washington State, and in the US Patent and Trademark Office. He has over twenty (20) years of legal experience.