senate Bill S5576B

Relates to the definition of artists and theatrical employment agencies

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 03 / Jun / 2011
    • REFERRED TO RULES
  • 20 / Jun / 2011
    • ORDERED TO THIRD READING CAL.1395
  • 20 / Jun / 2011
    • PASSED SENATE
  • 20 / Jun / 2011
    • DELIVERED TO ASSEMBLY
  • 20 / Jun / 2011
    • REFERRED TO LABOR
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO CONSUMER PROTECTION
  • 18 / Jan / 2012
    • 1ST REPORT CAL.72
  • 19 / Jan / 2012
    • 2ND REPORT CAL.
  • 23 / Jan / 2012
    • ADVANCED TO THIRD READING
  • 04 / Jun / 2012
    • AMENDED ON THIRD READING 5576A
  • 18 / Jun / 2012
    • AMENDED ON THIRD READING 5576B
  • 21 / Jun / 2012
    • SUBSTITUTED BY A8614B

Summary

Relates to the definition of an artist and theatrical employment agencies.

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Bill Details

See Assembly Version of this Bill:
A8614B
Versions:
S5576
S5576A
S5576B
Legislative Cycle:
2011-2012
Law Section:
General Business Law
Laws Affected:
Amd §§171, 181 & 185, Gen Bus L; amd §37.01, Arts & Cul L

Sponsor Memo

BILL NUMBER:S5576B

TITLE OF BILL:
An act
to amend the general business law and the arts and cultural affairs law,
in relation to theatrical employment agencies

PURPOSE OR GENERAL IDEA OF BILL:
To clarify and create consistency in the regulation of theatrical
employment agencies.

SUMMARY OF SPECIFIC PROVISIONS:
Sections 1 and 3 of the bill would amend the General Business Law and
the Arts and Cultural Law, respectively, to add a definition of
"artist" and to make corresponding amendments to definitions of
"theatrical employment agency" and "theatrical engagement."

Section 2 would amend the general business law to provide that, as is
the case for other types of employment agencies and consistent with
widespread practice, a theatrical employment agency may charge a fee
absent a written contract if, the agency is responsible for referring
the job applicant to an employer or an employer to a job applicant
which results in employment for such applicant. The bill would
clarify a fee is permitted where such theatrical employment agency
represents an artist in a negotiation or renegotiation of an original
or pre-existing contract. The bill would exempt theatrical employment
agencies from the inapplicable requirement of offering installment
plans.

EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:
Section 171 of the General Business Law and section 37.01 of the Arts
and Cultural Affairs Law define theatrical engagements to apply to
actors and performers related to the circus, vaudeville, the variety
field, the legitimate theater, motion pictures, radio, television,
phonograph recordings, transcriptions, opera, concert, ballet.
Modeling or other entertainments or exhibitions or performances,

Section 181 of the General Business Law requires employment.agencies
to provide to each applicant for employment a copy of the contract
between such agency and applicant. The contract is to have
pre-printed the statutory provisions of sections 385 and 186,
relating to provisions primarily concerning domestics, Laborers,
industrial workers and mechanics, among others.

Section 185 provides that the fees charged or accepted by an
employment agency for Class "A" (i.e., domestics, household
employees, unskilled or untrained manual workers and laborers,
including agricultural workers; and Class "A1" (i.e.,
non-professional trained or skilled industrial workers or mechanics)
workers are not subject to the requirement, of a written contract,
but in no event shall the fee charged exceed the fee ceiling
enumerated in statute. Employment agencies must offer applicants
installments periods of five or ten weeks to pay applicable fees.

JUSTIFICATION:


Theatrical employment is different from most other types of employment
and has been the subject of longstanding practices, procedures and
bonafide guild/union agreements that distinguish theatrical
employment agencies from, the typical employment agency. For this
reason, certain statutory requirements in current law, particularly
relating to the mandatory contract requirement of inapplicable
provisions and contractual relationships between theatrical
employment agencies and artists, do not reflect the custom and
practice in the industry. This bill would make modest changes to the
law to do so, while not compromising the protections and statutory
fee for artists.

Specifically, the bill would amend the definition of theatrical
engagements which are currently limited to actors and performers and
as Class C employment. Thus, all other theatrical-related engagements
for writers; directors, and cinematographers, among others, are
classified as Class B employment - along with clerical workers. Class
B statutory requirements are based on monthly salaries for job
applicants and have little applicability to theatrical engagements.

The bill would modernize these definitions so employment related to
theatrical engagements including for writers, directors and
cinematographers - are appropriately classified as Class C and are
not subject to the incompatible requirements for Class B employment.
The bill would also authorize theatrical employment agencies to
provide a notice of applicable provisions relating to fee ceilings
and return of fees in written contracts relating to theatrical
engagements.
The current statutory provisions relate principally to fees and fee
refunds concerning domestics, laborers, industrial workers and
mechanics and not artists and are confusing in the context of
theatrical engagements for artists.

Current law provides that contracts for domestics, household
employees, unskilled or untrained manual workers, laborers, including
agricultural workers, non-professional trained or skilled industrial
workers, and mechanics need not be in writing in order for an
employment agency a fee. The bill would include theatrical employment
agencies to the current exception provided the theatrical agency has
referred the artist to an employer or vice versa and has resulted in
employment and circumstances where the theatrical employment agency
is engaged by artist in the negotiating or renegotiating an original
or pre-existing contract subject an statutory fee ceilings.

The bill would exempt theatrical employment agencies from the
requirement of installment plans for the payment of theatrical agency
fees. Installment plans make- no sense in the entertainment industry,
since artists are typically engaged on a per production basis.
Accordingly, establishing a framework for an artist to make
installment payments does not work. Of course, theatrical employment
agencies would continue to receive nothing unless and until the
artist has
compensation and then only on the amount the artist is paid and
subject to the statutory fee ceiling.

PRIOR LEGISLATIVE HISTORY:
This is a new bill.


FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.

EFFECTIVE DATE:
Immediately.

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

                                 5576--B
    Cal. No. 72

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 3, 2011
                               ___________

Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules  --  recommitted  to
  the Committee on Consumer Protection in accordance with Senate Rule 6,
  sec. 8 -- reported favorably from said committee, ordered to first and
  second  report,  ordered  to  a  third  reading,  amended  and ordered
  reprinted, retaining its place in the order of third reading --  again
  amended  and  ordered  reprinted,  retaining its place in the order of
  third reading

AN ACT to amend the general business  law  and  the  arts  and  cultural
  affairs law, in relation to theatrical employment agencies

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

  Section 1. Subdivisions 8 and 9 of section 171 of the general business
law, as amended by chapter 617 of the laws of 1988, are  amended  and  a
new subdivision 8-a is added to read as follows:
  8.  "Theatrical  employment  agency"  means  any person (as defined in
subdivision seven of this section) who procures or attempts  to  procure
employment  or  engagements  for [circus, vaudeville, the variety field,
the legitimate theater, motion pictures, radio,  television,  phonograph
recordings,  transcriptions,  opera,  concert, ballet, modeling or other
entertainments or exhibitions or performances] AN ARTIST, but such  term
does not include the business of managing [such] entertainments, exhibi-
tions  or  performances,  or the artists or attractions constituting the
same, where such business only  incidentally  involves  the  seeking  of
employment therefor.
  8-A.  "ARTIST"  SHALL  MEAN ACTORS AND ACTRESSES RENDERING SERVICES ON
THE LEGITIMATE STAGE AND IN THE PRODUCTION  OF  MOTION  PICTURES,  RADIO
ARTISTS, MUSICAL ARTISTS, MUSICAL ORGANIZATIONS, DIRECTORS OF LEGITIMATE
STAGE, MOTION PICTURE AND RADIO PRODUCTIONS, MUSICAL DIRECTORS, WRITERS,
CINEMATOGRAPHERS,  COMPOSERS,  LYRICISTS,  ARRANGERS,  MODELS, AND OTHER

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11532-05-2

S. 5576--B                          2

ARTISTS AND PERSONS RENDERING PROFESSIONAL SERVICES IN  MOTION  PICTURE,
THEATRICAL, RADIO, TELEVISION AND OTHER ENTERTAINMENT ENTERPRISES.
  9.  "Theatrical  engagement"  means any engagement or employment of [a
person as an actor, performer or entertainer in employment described  in
subdivision eight of this section] AN ARTIST.
  S  2. Subdivisions 1 and 2 of section 185 of the general business law,
as amended by chapter 617 of the laws of 1988, are amended  to  read  as
follows:
  1. Circumstances permitting fee. An employment agency shall not charge
or  accept  a  fee  or other consideration unless in accordance with the
terms of a written contract with a job applicant, except:
  (A) for class "A" and "A-1" employment, and except after  such  agency
has  been responsible for referring such job applicant to an employer or
such employer to a job applicant and where as a result thereof such  job
applicant has been employed by such employer; AND
  (B) FOR CLASS "C" EMPLOYMENT: (I) AFTER AN AGENCY HAS BEEN RESPONSIBLE
FOR REFERRING AN ARTIST TO AN EMPLOYER OR SUCH EMPLOYER TO AN ARTIST AND
WHERE  AS A RESULT THEREOF SUCH ARTIST HAS BEEN EMPLOYED BY SUCH EMPLOY-
ER; OR (II) AFTER AN AGENCY REPRESENTS AN ARTIST IN THE  NEGOTIATION  OR
RENEGOTIATION  OF  AN  ORIGINAL  OR PRE-EXISTING EMPLOYMENT CONTRACT AND
WHERE AS A RESULT THEREOF THE ARTIST ENTERS INTO A NEGOTIATED OR RENEGO-
TIATED EMPLOYMENT CONTRACT. FOR CLASS "C" EMPLOYMENT  PURSUANT  TO  THIS
PARAGRAPH, AN EMPLOYMENT AGENCY SHALL PROVIDE AN ARTIST WITH A STATEMENT
SETTING  FORTH  IN  A  CLEAR  AND  CONCISE MANNER THE PROVISIONS OF THIS
SECTION AND SECTION ONE HUNDRED EIGHTY-SIX OF THIS ARTICLE.
  The maximum fees provided for herein for all types  of  placements  or
employment  may be charged to the job applicant and a similar fee may be
charged to the employer provided, however, that with  regard  to  place-
ments in class "B" employment, a fee of up to one and one-half times the
fee  charged  to  the  job  applicant may be charged to the employer. By
agreement with an employment agency, the employer may voluntarily assume
payment of the job applicant's fee. The fees charged to employers by any
licensed person conducting an employment agency for  rendering  services
in  connection  with,  or for providing employment in classes "A", "A-1"
and "B", as hereinafter defined in  subdivision  four  of  this  section
where  the  applicant is not charged a fee shall be determined by agree-
ment between the employer and the employment agency.  No  fee  shall  be
charged  or accepted for the registration of applicants for employees or
employment.
  2. Size of fee; payment schedule. The gross fee  charged  to  the  job
applicant  and  the  gross  fee  charged  to the employer each shall not
exceed the amounts  enumerated  in  the  schedules  set  forth  in  this
section,  for any single employment or engagement, except as hereinabove
provided; and such fees shall be subject to the  provisions  of  section
one  hundred  eighty-six  of  this article. Except as otherwise provided
herein, AND EXCEPT FOR CLASS "C" EMPLOYMENT, an employment agency  shall
not  require  an  applicant  while  employed  in  the continental United
States, and paid weekly to pay any fee at a rate  greater  than  in  ten
equal  weekly  [instalments] INSTALLMENTS each of which shall be payable
at the end of each of the first ten weeks of employment, or if paid less
frequently, in five equal installments, each of which shall  be  payable
at  the  end  of the first five pay periods following his employment, or
within a period of ten weeks, whichever period is longer. An  employer's
fee  shall  be  due and payable at the time the applicant begins employ-
ment, unless otherwise determined by agreement between the employer  and
the agency.

S. 5576--B                          3

  S  3.  Subdivisions  3 and 4 of section 37.01 of the arts and cultural
affairs law are amended and a new subdivision 5  is  added  to  read  as
follows:
  3.  "Theatrical  employment  agency"  means  any person (as defined in
subdivision one hereof) who procures or attempts to  procure  employment
or  engagements  for [circus, vaudeville, the variety field, the legiti-
mate theater, motion pictures, radio, television, phonograph recordings,
transcriptions, opera, concert, ballet, modeling or other entertainments
or exhibitions or performances]  AN  ARTIST,  but  such  term  does  not
include  the  business of managing [such] entertainments, exhibitions or
performances, or the artists or attractions constituting the same, where
such business only  incidentally  involves  the  seeking  of  employment
therefor.
  4.  "Theatrical  engagement"  means any engagement or employment of [a
person as an actor, performer or entertainer] AN  ARTIST  in  employment
described in subdivision three of this section.
  5.  "ARTIST" SHALL MEAN ACTORS AND ACTRESSES RENDERING SERVICES ON THE
LEGITIMATE STAGE  AND  IN  THE  PRODUCTION  OF  MOTION  PICTURES,  RADIO
ARTISTS, MUSICAL ARTISTS, MUSICAL ORGANIZATIONS, DIRECTORS OF LEGITIMATE
STAGE, MOTION PICTURE AND RADIO PRODUCTIONS, MUSICAL DIRECTORS, WRITERS,
CINEMATOGRAPHERS,  COMPOSERS,  LYRICISTS,  ARRANGERS,  MODELS, AND OTHER
ARTISTS AND PERSONS RENDERING PROFESSIONAL SERVICES IN  MOTION  PICTURE,
THEATRICAL, RADIO, TELEVISION AND OTHER ENTERTAINMENT ENTERPRISES.
  S 4. This act shall take effect immediately.

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