Ontario Bolsters Child Performer Rights, but excludes fashion models

On February 5, 2015, the Ontario Government rolled out new legislation that specifically targets Child Performer’s employment rights in the entertainment industry.

CanadaFashionLaw has followed a movement that has been happening south of the border in terms of protecting child talent, and is delighted that Ontario is also taking the necessary precautions to protect talented youth.  However, it appears that the Ontario government did not specifically consider fashion models, much to CanadaFashionLaw‘s disappointment.

Abiding by this legislation is mandatory and employers cannot “contract out” of the provisions.  Below is a summary of the salient provisions of the legislation:

  • Who does it pertain to? The act pertains to child performers under the age of 18, who perform work or supply services as a performer (including a background performer) in the entertainment industry for monetary compensation.  However, the act stipulates that an employer cannot employ a baby less than 15 days old for recorded entertainment or a child that is younger than 2.5 years old for live entertainment.
  • What is the legislation applied to? The legislation is limited to the live and recorded entertainment industry.
  • What is included as part of the entertainment industry?  The scope of what qualifies as part of the entertainment industry is restricted to performers in: a) live performing arts in theatre, dance, music, opera or circus or b) visual or audio visual recorded entertainment that is played in cinemas, the internet, radio, television broadcast, or a recorded device, such as a DVD.
  • An obligation of full and continued disclosure. Prior to employing a child performer, the prospective employer must have a meeting with the child’s parent/guardian providing full disclosure about the gig, including a description of the role the child will play, the location and hours of the rehearsals and performances, any health and/or safety hazards the child may be exposed to, the precautions the prospective employer will take to safe guard against those hazards, any special skills required of the child and any special effects that the child may be exposed to.  The child has the option of being present at this meeting.  Should any of these items be changed, the employer must provide the parent/guardian with written notice.  The changes cannot be implemented without the parent/guardian’s consent.
  • Written employment contracts are mandatory.  Although fantastic that this is included, CanadaFashionLaw doesn’t understand why anyone would provide services without a written contract.
  • Supervision.  Any child performer under 16 years ago must be accompanied by an authorized chaperone to/from the workplace.  The parent/guardian must provide its authorization in writing.  However, if the travel is overnight, the parent/guardian must accompany the child at all times.  The employer is responsible for the overnight travel costs.  A parent/guardian or authorized chaperone must be present during the child’s performance.
  • Tutoring.  The employer must set aside time in the work schedule for the child to receive tutoring.
  • Creation of trust fund.  If the child earns more than $2,000 on a project, 25% of the earnings must be set up in a trust fund, which the child can access when he/she reaches 18.  However, if the child is part of a trade union or professional association, and the union/association provides for a trust fund deposit, this provision does not apply.
  • Maximum hours of work and overtime.  The legislation sets the maximum hours and overtime a child can work in the day, which varies according to age and whether the child is performing in live or recorded entertainment.
  • Free hours.  The legislation also stipulates that the child must have a specific number of minimum hours free during the work day and also during the week.
  • Enforcement.  The act refers back to specific provisions in the Employment Standards Act with respect to enforcement.

Interestingly, (but perhaps not surprisingly), the fashion industry does not easily tie in with this legislation.  It appears to be geared towards Ontario’s golden child entertainment industries: film, television, radio and music, with a few additional industries, such as dance, opera, theatre and, even the circus.  Fashion is not itemized as an industry.  As such, it is difficult to make the case that child models will be protected by this legislation.  At best, child models may be protected under this legislation if they are included in a recorded commercial that is replayed in cinemas, on the internet or on TV.  Frustratingly, this is another example of how the Ontario government has shortchanged the fashion industry (perhaps to the employers’ delight).

Fashion Law in the News

Over the past few weeks, a number of publications have reached out to CanadaFashionLaw for our perspective on a number of issues in the fashion industry.  Here’s a summary of the articles, if you’re interested in them:

1. The Genteel examined New York’s new legislation that better protects child models.  Click here if you’re interested.

2. The World Intellectual Property Review explored the issues raised in the Canada Goose v. Sears case. Click here if you’re interested.

New York Sets Minimum Standards for Models

Over the past few years, CanadaFashionLaw has been following a grass roots movement within the modeling industry to set standards. There has been some serious traction but none more so than the adoption of legislation!

New York State has now passed legislation, which comes into effect November 20, that requires models under 16 years old to be recognized as ‘child performers’.  This means that their employment will be better regulated. For example, the number of hours a child model can work is limited, also how late they can work will also be monitored. A trust fund must be created where 15% of the model’s gross earnings shall be paid. The employer must also provide for a nurse and on-site study spaces.

It is no surprise that this will have a trickle down effect as to which models will be used on the catwalk and in advertisements. Perhaps we will see less 14 year old models portraying women, which will contribute to a more healthy image for consumers.

Although there are financial penalties available for those employers not abiding by the legislation, the greatest harm will be the PR back lash for infractions, especially in light of the fashion industry’s increasing sensitivity to human rights issues brought on by the Bangladesh travesty.