SENATE CORPORATIONS AND TRANSPORTATION COMMITTEE SUBSTITUTE FOR
SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
SENATE BILL 175
48th legislature - STATE OF NEW MEXICO - first session, 2007
AN ACT
RELATING TO LABOR; REVISING CHILD LABOR PROVISIONS TO INCLUDE THE FILM INDUSTRY; MODIFYING AGE REQUIREMENTS; PROVIDING FOR APPEAL PROCEDURES; CHANGING PENALTIES; AMENDING, REPEALING AND ENACTING CERTAIN SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of Chapter 50, Article 6 NMSA 1978 is enacted to read:
"[NEW MATERIAL] SHORT TITLE.--Chapter 50, Article 6 NMSA 1978 may be cited as the "Child Labor Act"."
Section 2. A new section of the Child Labor Act is enacted to read:
"[NEW MATERIAL] EXCEPTIONS.--
A. A child under the age of sixteen may be employed without obtaining a work permit and without the restrictions on the age of the child or time of employment imposed by Sections 50-6-1 through 50-6-3 NMSA 1978 if the child is employed:
(1) by a parent in an occupation other than manufacturing or mining or other than an occupation found to be particularly hazardous or detrimental to the health of children under the age of sixteen;
(2) as an actor or performer in motion picture, theatrical, radio or television productions; or
(3) to sell or deliver newspapers, with the parent's consent, during the school term or during vacation and the child is attending school as required by law and does not engage in such employment except at times when the child's presence is not required at school.
B. The employer of a child employed pursuant to Subsection A of this section is not required to obtain and preserve a work permit in accordance with Section 50-6-9 NMSA 1978 for that child."
Section 3. A new section of Chapter 50, Article 6 NMSA 1978 is enacted to read:
"[NEW MATERIAL] CHILDREN WORKING IN THE PERFORMING ARTS.--
A. For the purposes of this section, a "performer" means a person employed to act or otherwise participate in the performing arts, including motion picture, theatrical, radio or television products.
B. A performer under eighteen years of age is considered a child subject to the Child Labor Act unless:
(1) the performer has satisfied the compulsory education laws of the state;
(2) the performer is married;
(3) the performer is a member of the armed forces; or
(4) the performer is legally emancipated.
C. A child may not begin work earlier than 5:00 a.m. and the workday must end no later than 10:00 p.m. on evenings preceding school days and 12:00 a.m. on mornings of nonschool days.
D. A child-performer's working hours, including school time, are limited as follows:
(1) a child under the age of six shall not be employed or permitted to labor for more than six hours in one day;
(2) a child over the age of six and under the age of nine shall not be employed or permitted to labor for more than eight hours in one day;
(3) a child over the age of nine and under the age of sixteen shall not be employed or permitted to labor for more than nine hours in one day; and
(4) a child over the age of sixteen and under the age of eighteen shall not be employed or permitted to labor for more than ten hours in one day.
E. If a child engages in employment on school days, a teacher with credentials appropriate to the level of education needed shall be provided by the employer.
F. The labor department shall promulgate rules for employers in the performing arts, including education and safety requirements."
Section 4. Section 50-6-1 NMSA 1978 (being Laws 1925, Chapter 79, Section 1, as amended) is amended to read:
"50-6-1. CHILDREN UNDER FOURTEEN--EMPLOYMENT [DURING SCHOOL HOURS] PROHIBITED.--No child under fourteen years of age shall be employed or permitted to labor at any gainful occupation [during the hours during which the schools in the district in which the child resides are in session. No child under the age of fourteen years shall be employed at any gainful occupation when the school of the district in which such child resides is not in session unless such child obtains a permit certificate issued in the manner and by the authority herein directed] unless otherwise provided for in the Child Labor Act."
Section 5. Section 50-6-2 NMSA 1978 (being Laws 1925, Chapter 79, Section 2, as amended) is amended to read:
"50-6-2. [CERTIFICATE] WORK PERMIT FOR CHILDREN FOURTEEN TO SIXTEEN [DURING SCHOOL TERM].--[No] A child over the age of fourteen years and under the age of sixteen years shall not be employed or permitted to labor at any gainful occupation [during the term of the school of the district in which the child resides unless the child has procured and filed] without procuring and filing a work permit [certificate as herein] unless otherwise provided for in the Child Labor Act."
Section 6. Section 50-6-3 NMSA 1978 (being Laws 1925, Chapter 79, Section 3, as amended) is amended to read:
"50-6-3. MAXIMUM HOURS FOR CHILDREN [UNDER] FOURTEEN TO SIXTEEN.--[No child]
A. Children over the age of fourteen and under the age of [fourteen] sixteen years shall not be employed or permitted to labor at any gainful occupation for more than [forty-four] forty hours in any one week nor more than eight hours in any one day [except under special circumstances to be determined by the officer who issued the permit; but in no case shall such child be permitted to work more than forty-eight hours in any one week nor shall such child begin work before 7:00 a.m. nor continue after 9:00 p.m. of any one day] when school is not in session unless otherwise provided for in the Child Labor Act.
B. Children over the age of fourteen or under the age of sixteen shall not be employed unless otherwise provided for in the Child Labor Act:
(1) before 7:00 a.m. or after 7:00 p.m. during the calendar school year;
(2) before 7:00 a.m. or after 9:00 p.m. outside of the calendar school year;
(3) during school hours, except as provided for in work experience and career exploration programs;
(4) more than three hours per day during school days; or
(5) more than eighteen hours per week during school weeks."
Section 7. Section 50-6-4 NMSA 1978 (being Laws 1925, Chapter 79, Section 5, as amended) is amended to read:
"50-6-4. PROHIBITED OCCUPATIONS FOR CHILDREN UNDER SIXTEEN--EXCEPTIONS.--[No child]
A. A child under the age of sixteen years shall not be employed or permitted to labor at any of the following occupations or in any of the following positions:
(1) on or around belted machines while in motion;
(2) on or around power-driven woodworking machines used for cutting, shaping, forming, surfacing, nailing, stapling, wire stitching, fastening or otherwise assembling, processing or printing wood or veneer;
(3) on or around power-driven hoisting apparatus with the exception that this section shall not prohibit the operation of an automatic elevator [which] that is controlled by pushbuttons making leveling, holding, opening and closing of the car and hoistway doors entirely automatic; [prohibited]
(4) in or about plants, establishments or jobs using, manufacturing or storing explosives or articles containing explosive components;
(5) electronics jobs where the child is exposed to electrical hazards;
(6) in or about any establishment where malt or alcoholic beverages are manufactured, packed, wrapped or bottled;
(7) municipal firefighting whether using volunteers or paid employees;
(8) manufacture of goods for immoral purposes; [nor]
(9) in any employment dangerous to lives and limbs or injurious to the health or morals of children under the age of sixteen years; [Provided further, that] or
(10) soliciting door-to-door for other than a nonprofit organization.
B. The provisions of this [act shall] section do not apply to:
(1) children engaged in working with equipment in any school or place where [manual training] cooperative education or science is taught while under supervision of an instructor; [This provision shall not apply to apprenticeships]
(2) apprentices while under the supervision of a journeyman [or instructor] in a certified apprenticeship program; or
(3) children employed in a film or television production, where the set may be considered physically hazardous or special effects are used; provided that a New Mexico-certified trainer or technician accredited in a United States department of labor occupational safety and health administration-certified safety program specific to the film or television industry is present at all times that the child is exposed to the potentially hazardous condition.
C. Additional hazardous occupations not specifically listed in this section [will] shall be determined by the state child labor inspector following consultation with the employer who wishes to employ minors over the age of fourteen years and under sixteen years of age."
Section 8. Section 50-6-7 NMSA 1978 (being Laws 1925, Chapter 79, Section 8, as amended) is amended to read:
"50-6-7. [LABOR] WORK PERMIT [CERTIFICATES]--ISSUANCE--AUTHORIZED OFFICIALS--APPLICATION--CONTENTS--PROOF--COPIES--MAXIMUM TERM.--
A. [Permit certificates] Work permits shall be issued only by the school superintendents, school principals, designated issuing school officers or the director of the labor and industrial division of the labor department or the director's designee.
B. [No] A work permit [certificate] shall not be issued to [any] a child until satisfactory proof has been furnished that the work in which the child is to engage is not dangerous to the child [nor] or injurious to [his] the child's health or morals.
C. The application for the [certificate must] work permit shall show that the [child is in good physical health and that the] work to be performed would not result in injury to the health, morals or mental development of the child. Satisfactory proof of the age of the child at the date of the application shall be furnished. [In the case of children over the age of fourteen years and under the age of sixteen years] Any application for the employment of children at any gainful occupation during the session hours of the school of the district in which the child resides shall set forth, in addition to the foregoing, the necessity to the family or the dependents of the child or for [his] the child's own support of the income to be derived from the employment or labor.
D. Whenever the person authorized to issue the [labor] work permit is satisfied that the provisions of this section have been complied with, [he] the person shall issue to the child a [labor] work permit, keeping one copy on file and sending one copy of [this] the permit to the labor and industrial [commission] division of the labor department.
E. No work permit [certificate] shall be in force without renewal for a longer period than one year from the date of issuance."
Section 9. Section 50-6-8 NMSA 1978 (being Laws 1925, Chapter 79, Section 9, as amended) is amended to read:
"50-6-8. RENEWAL OF [LABOR] WORK PERMITS.--The officer authorized to issue work permits may renew [any labor] a work permit at the expiration date thereof for a period not exceeding one year upon a satisfactory showing upon the part of the child, [its] the child's parent, [or] guardian or [person in loco parentis] custodian that the provisions of [Sections 59-6-1 through 59-6-16 NMSA 1953] the Child Labor Act are being complied with and that [such] the child is in good health. [Such] The extension of time shall be made by [such] the officer writing upon the certificate the following words: "this [certificate] work permit is extended for a period of ...... days from this date" and by the officer signing [his or her name thereto] the certificate."
Section 10. Section 50-6-9 NMSA 1978 (being Laws 1925, Chapter 79, Section 10, as amended) is amended to read:
"50-6-9. EMPLOYER'S RECORDS--FORM OF PERMITS.--Whenever any child is employed or permitted to labor at any gainful occupation permitted by the laws of this state, the employer of [such] the child shall preserve on file the [labor] work permit of [such] the child and shall keep posted in a conspicuous place about the premises where [such] the child is employed a list of all children there at work by virtue of [labor] work permits. The form for all [labor] work permits shall be prepared by and shall contain such information concerning the identity of the child as may be prescribed by the labor and industrial [commission] division of the labor department."
Section 11. Section 50-6-10 NMSA 1978 (being Laws 1925, Chapter 79, Section 11, as amended) is amended to read:
"50-6-10. INSPECTION OF [CERTIFICATES] WORK PERMITS, RECORDS AND PREMISES BY THE LABOR AND INDUSTRIAL [COMMISSION] DIVISION OF THE LABOR DEPARTMENT.--All [employment certificates] work permits and records and the premises where children are employed are subject to inspection by representatives of the labor and industrial [commission] division of the labor department. The [commission] director of the division may, for cause, cancel [any labor] a work permit with the concurrence of the officer issuing the permit but, in case they disagree, the district court may cancel the permit on complaint setting forth the grounds therefor under the provisions of [Sections 59-6-1 through 59-6-15 NMSA 1953] the Child Labor Act."
Section 12. Section 50-6-12 NMSA 1978 (being Laws 1925, Chapter 79, Section 13, as amended) is amended to read:
"50-6-12. PENALTIES [FOR VIOLATION OF ACT].--[Whoever]
A. A person who employs a child, or [whoever having under his control] who is the parent, guardian or custodian of a child, and who permits [such] that child to be employed in violation of any of the provisions of [Sections 59-6-1 through 59-6-16 NMSA 1953 shall be] the Child Labor Act is guilty of a petty misdemeanor [and shall be fined not less than twenty-five dollars ($25.00) nor more than three hundred dollars ($300) and, on default of the payment of such fine, may be sentenced to the county jail for not less than five days nor more than fifteen days]. Each violation of [Sections 59-6-1 through 59-6-16 NMSA 1953 shall constitute] the Child Labor Act constitutes a separate offense. [In the event of a second conviction of employer for violation of Sections 59-6-1 through 59-6-16 NMSA 1953, the court trying the cause shall sentence such employer to the county jail for a period of not less than thirty days; and for any succeeding conviction for the like offense, the court trying the cause shall sentence the employer to imprisonment in the state penitentiary for a period of not less than one year nor more than two years.] A second or subsequent conviction of an employer, parent, guardian or custodian for violation of the Child Labor Act is a misdemeanor.
B. The director of the labor and industrial division of the labor department may report a violation of the Child Labor Act to the local district attorney, who may prosecute the alleged violator."
Section 13. Section 50-6-13 NMSA 1978 (being Laws 1925, Chapter 79, Section 14) is amended to read:
"50-6-13. DISTRICT COURT JURISDICTION.--The district courts are hereby given original jurisdiction in all cases of violations of the provisions of [this act] the Child Labor Act."
Section 14. Section 50-6-14 NMSA 1978 (being Laws 1925, Chapter 79, Section 15, as amended) is amended to read:
"50-6-14. STATE CHILD LABOR INSPECTOR--APPOINTMENT--DIRECTION--QUALIFICATIONS.--There shall be a "state child labor inspector", appointed by and subject to the [labor commissioner. The inspector must be qualified by special training and experience for this work and must pass a satisfactory examination given by the labor commissioner for this purpose] director of the labor and industrial division of the labor department."
Section 15. A new section of the Child Labor Act is enacted to read:
"[NEW MATERIAL] CHILDREN EMPLOYED IN THE PERFORMING ARTS--TRUST ACCOUNT--REQUIREMENTS.--
A. Whenever a child is employed in the performing arts, the child's parent, guardian or trustee shall establish a trust account in the child's state of residence for the benefit of the child within seven business days after the child's employment contract is signed, and the employer shall deposit fifteen percent of the child's gross earnings directly into the child's trust account.
B. The money placed in trust shall not be accessed until the child is eighteen years of age or becomes legally emancipated, unless otherwise ordered by the district court.
C. The parent, guardian or trustee shall provide the child's employer with a trustee statement within fifteen days after the start of employment. Upon the presentation of the trustee statement, the employer shall provide the parent, guardian or trustee with a written acknowledgment of receipt of the statement.
D. If the parent, guardian or trustee fails to provide the child's employer with a trustee statement within ninety days after the start of employment, the child's employer shall refer the matter to the district court and a trustee shall be appointed for the child.
E. The child's employer shall deposit fifteen percent of the child's gross earnings into the child's trust account within fifteen business days of services rendered. If the account is not established, the child's employer shall withhold fifteen percent until a trust account is established for the child's benefit.
F. Once the child's employer deposits fifteen percent of the child's gross earnings in trust, the child's employer shall have no further obligation or duty to monitor the funds.
G. The trustee shall be the only individual with an obligation to monitor and account for the funds, in compliance with state law.
H. The district court shall have continuing jurisdiction over the trust and may at any time, upon petition of the parent, guardian, trustee or child, order that the trust be terminated or amended for good cause. An order amending or terminating the trust shall be made only after reasonable notice and the opportunity for all parties to appear and be heard have been given.
I. This section applies only to contracts in an amount equal to or greater than one thousand dollars ($1,000) in gross earnings.
J. For the purposes of this section, "gross earnings" means the total compensation payable to the child under the contract or, if the child's services are being rendered through a third party, the compensation payable to that third party for the services of the child."
Section 16. REPEAL.--Sections 50-6-6, 50-6-15 and 50-6-16 NMSA 1978 (being Laws 1925, Chapter 79, Section 7, Laws 1963, Chapter 175, Section 4 and Laws 1959, Chapter 298, Section 1, as amended) are repealed.
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