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F I S C A L I M P A C T R E P O R T

SPONSOR SCORC

ORIGINAL DATE

LAST UPDATED

2/06/07

3/01/07 HB

SHORT TITLE Film Industry Child Labor Requirements

SB CS/CS/175/sSFl 1,2

ANALYST Lucero

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to: HB 51 “Film Industry Child Labor Provisions" SB 476 “Film Industry Child Labor

Requirements" SB 225 “Film Industry Child Labor Provisions"

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the District Attorney (AODA)

New Mexico Department of Labor (DL)

Office of Workforce Training and Development

SUMMARY

Synopsis of SFl Amendment #1 and #2 of CS/SPAC/SCORC

Senate Floor Amendment #1 to the Senate Corporations and Transportation Committee

Substitute for Senate Public Affairs Committee Substitute for Senate Bill 175 replaces language

that was deleted from the Act concerning training and testing of an appointed child labor

inspector.

Senate Floor Amendment #2 to the Senate Corporations and Transportation Committee

Substitute for Senate Public Affairs Committee Substitute for Senate Bill 175 expands the ability

of child under the age of sixteen to solicit door-to-door for a nonprofit organization to also now

include other activities provided it is approved by a parent or guardian. The amendment

expands the type of occupations which children under sixteen may be employed or permitted to

labor to include those activities approved by the parent or guardian.

Senate Bill 175 CS/CS/175/sSFl 1,2 – Page

2

Synopsis of SCORC substitute to SPAC substitute to Senate Bill 175

Senate Corporations and Transportation Committee Substitute for Senate Public Affairs

Committee Substitute for Senate Bill 175 amends in part and repeals in part the current law 50-6-

1 through 50-6-16 NMSA regarding employment of children under the age of fourteen (14) . It

also creates a new section dealing specifically with children working in the performing arts. The

bill incorporates all changes under the title the “Child Labor Act". The bill sets out restrictions

and exceptions as to the types of employment available and the working hours for children under

the age of sixteen (16). It also now provides for a civil penalty to be accessed and the optional

referral of cases to the District Attorney who has the option to prosecute. It also changes the

penalty from a misdemeanor to a petty misdemeanor for the first offense and a misdemeanor for

the second or subsequent offense. It also provide for a trust account to be created, for contracts

equal or greater than one thousand dollars, in the child’s state of residence for children in

performing arts.

FISCAL IMPLICATIONS

The increased penalties under the Act, authorizes discretion to the Director to report violations to

the local District Attorney and authorizes discretion to the District Attorney to prosecute

violations of the Act may increase the case loads of District Attorneys, Public Defenders, the

Courts and Adult Probation Offices as well as increase incarceration costs for the Department of

Corrections. An inquiry to all fourteen (14) District Attorneys as to whether they had ever had a

case referred to them under the current law returned no positive replies. Depending on the

volume of cases that may be referred could potentially necessitate additional attorneys and staff

for all offices mentioned and the associated costs. The exact fiscal impact to the judicial and

detention systems is indeterminable due to the uncertainty as to the potential number of cases

that may be referred.

SIGNIFICANT ISSUES

Senate Floor Amendment 1 replaces language to delineate training and experience, along with an

examination requirement for the position of State Child Labor Inspector, which is an appointed

position. Similar language had been struck under the original version of SB175 of the bill, and

the amendment essentially adds back the same language.

Senate Floor Amendment 2 clarifies language relevant to “Prohibited Occupations for Children

Under Sixteen—Exceptions" (NMSA 1978 §50-6-4). Subpart 10 addresses solicitation door-to-

door as prohibited, other than for non-profit organizations. The new language expands subpart

10 to include an exception for other activities approved by the parent or guardian.

New Mexico Public Regulation Commission (PRC) states:

New Section 2, Subsection (A) would allow parents to employ children under sixteen in

occupations “other than [those] found to be particularly hazardous or detrimental to the

health of children under the age of sixteen." I suggest that the Legislature examine

carefully what occupations have been found to fall within the quoted exception. See also

§ 50-6-4(C), the proposed amendment to which would limit the requirement for a

consultation on non-listed hazardous occupations to situations involving children between

fourteen and sixteen years old. (Those wishing to employ younger children would

arguably be exempted.)

Senate Bill 175 CS/CS/175/sSFl 1,2 – Page

3

New Section 2, Subsection (A)(2) and (B), read in conjunction with § 50-6-2, would

bypass the need for a work permit for children employed as actors or performers, as long

as they are under sixteen. This also presents a possible conflict with § 50-6-9.

New Section 3, Subsection (C) would permit a child’s “workday" to begin at 5:00 a.m.

and end at 10:00 p.m. on school nights (or end at midnight on non-school nights). When

read in conjunction with Subsection (D), it is not clear whether this provision would allow

the employer to keep a child-performer on the set for up to 19 hours (17 hours on a school

night), as long as the child is not “permitted to labor" for longer than the durations

specified in Subsection (D).

New Section 3, Subsection (D) would establish limitations on working hours, “including

school time." Subsection (E) would require the employer to provide a teacher. However,

it is not clear that any actual instruction time would be required, or if so, how long that

instruction time would be. See also, § 50-6-3(B) in this regard, and compare § 50-6-

3(B)(4).

Subsection (D)(1) relates to children “under the age of six" and would allow them to be

“working" for up to six hours in one day. Subsection D(2) relates to children between six

and nine years of age and would allow them to be “working" up to eight hours in one day.

The bill would allow even very small children under six years old to be engaged in

“labor," with hours that seem excessively long. I suggest that, at a minimum, the

Legislature seek information on whether this is good for children.

The proposed amendments to § 50-6-12 would reduce certain criminal penalties for

violations. I suggest that the Legislature examine this language carefully. In addition, §

50-6-12(A) could conflict with § 50-6-12(B) in that (A) would reduce a [first] violation

from a misdemeanor to a “petty misdemeanor," while (B) would impose a mandatory 30-

day jail sentence. Sentences for misdemeanors are established at NMSA 1978, § 31-19-

1(A) as a definite jail term of up to one year or a fine of up to $1,000. In contrast,

sentences for “petty misdemeanors" are established at NMSA 1978, § 31-19-1(B) as a

definite jail term of up to six months or a fine of up to $500. The bill would make a

second violation a misdemeanor, and a third violation would be a fourth degree felony.

See also New Section 4 (“Civil Penalty").

§ 50-6-14 would remove altogether any requirement that the state child labor inspector be

qualified by special training and experience. Instead, that official would simply be

“appointed by and subject to" the director of the labor and industrial division of the labor

department.

This bill modifies language in the Child Labor Act to conform to provisions in the Screen Actors

Guild guidelines. The bill establishes working conditions and hour limitations for minors

performing in film, television and other theatrical endeavors. It adds civil penalties for violations

and adds an administrative appeal process. It strengthens the penalty for subsequent violations.

Although the bill toughens up the consequences of violating child labor laws, it expands child

labor to any young age in the category of children who work for their parents, work as

performers in various electronic media or children who deliver newspapers to customers.

Senate Bill 175 CS/CS/175/sSFl 1,2 – Page

4

Section 22-12-6(A) of the Compulsory School Attendance Law currently provides that, “Any

student . . . attaining the age of fourteen may be excused from full-time school attendance by

issuance of a certificate of employment. . ." It is not clear if a school district can and should

continue to issue this certificate under the circumstances outlined in this bill.

Because some parents who home school children challenge any restrictions they perceive are not

lawfully imposed upon them, it is possible that some of these parents may not feel bound by

Section 8 of the bill that prohibits employment of children in the context of a “calendar school

year" or “during a school day." As currently written, these restrictive provisions would arguably

not apply to such home-schooled children who might be inclined to work outside of the proposed

restrictions.

ADMINISTRATIVE IMPLICATIONS

Currently District Attorneys and Public Defenders that potentially could be impacted by this bill

are seeking additional funding for salaries in an effort to reduce employee turnover due to large

caseloads and low pay compared to other state agencies. If this bill leads to an increase caseloads

it could exasperate the problem and impact the judiciary.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

HB 51 “Film Industry Child Labor Provisions", SB 476 “Film Industry Child Labor

Requirements", SB 225 “Film Industry Child Labor Provisions"

TECHNICAL ISSUES

Floor Amendment #1 should be changed to read: “must satisfactorily pass an examination"

(“satisfactory examination" does not make sense)

It is unclear if Senate Floor Amendment # 2 modifies the type of organization for which a child

can solicit door-to-door for or if the language is broader and expands the exception to include

any activities approved by the parent or guardian.

The floor amendments also help avoid potential legal thickets, the first by spelling out with more

specificity than the original legislation what the qualifications are to be of the State Child Labor

Inspector, and the second floor amendment by adding simple, straightforward language to ensure

that parents retain necessary discretion over children’s activities, even when not being done for a

nonprofit organization.

One continuing problem, however, not addressed by the SCORC Substitute or the two floor

amendments to it, is that there is still no provision for severability to save the rest of the Act

should any one or more portions be found to be unconstitutional. Thus, despite the corrections

worked by the SCORC Substitute, a severability clause should nonetheless be added so that the

entire Act is not nullified if one portion is found to be unconstitutional.

PED states that on page 4, Line 1 – 3, “a teacher with credentials appropriate to the level of

education" is used to describe child performers who must receive education by their employer.

These terms do not comport with the current licensure structure of the PED. While the

Senate Bill 175 CS/CS/175/sSFl 1,2 – Page

5

educational needs of younger children who are in traditional elementary school grades might be

met by one teacher, the educational needs of older children who are in middle or high school

might require more than one highly qualified teacher who teaches core academic subjects. There

are many restrictions and requirements of who can teach what subject depending upon the grade

of the child. For example, a child receiving special education services must be provided services

from qualified related service providers if called for in that child’s Individualized Educational

Plan (IEP).

Perhaps the provision could be changed to: “a teacher or teachers with credentials appropriate to

the level of education" to accommodate these licensure requirements.

The PRC states: In § 50-6-3(B), PRC suggests placing the phrase “unless otherwise provided for

in the Child Labor Act" at the beginning of the sentence.

OTHER SUBSTANTIVE ISSUES

The proposal of the age limit(s) and amendments to work permit application/receipt may have an

impact to the federal Workforce Investment Act youth delivery system as well as other state

funded youth programs which provide a work experience component in their program designs.

In most cases this would increase the number of youth that could participate in work experience.

Administrative Office of the District Courts states: Based on recent local news reports, the film

industry has defrauded New Mexico of hundreds of thousands of dollars. If anything, controls

need to be tightened on that industry. If a child is to be employed by any industry, it is preferable

that a work permit be obtained for any child for record keeping purposes, as well as for

safeguarding of the children’s interests. No industry should receive any special treatment in light

of securing children’s rights in the “workplace".

ALTERNATIVES

As mentioned above.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Not enacting this bill will mean less protection for children working in the film industry. A

minimal impact may occur to the number of youth that may not be able to be offered a work

experience opportunity due to the age limitations and permit limitations outlined in the existing

Law.

DL/mt