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THE REAL WORLD: CHILD LABOR AND REALITY
TELEVISION
ARIEL TACHER
INTRODUCTION
Here Comes Honey Boo Boo can best be described as reality television’s
newest car crash, in that viewers just can’t seem to look away. On January 4, 2012,
during the Season Five premiere of TLC’s Toddlers and Tiaras, the world was
introduced to six-year-old beauty pageant contestant Alana Thompson,
affectionately known as Honey Boo Boo.1 Since her one-episode launch into
society, Honey Boo Boo, known for her “over-the-top personality, stomach-talking
talents, and lively stage performance — energized by ‘go-go juice,’ a blend of
Mountain Dew and Red Bull” has become nothing short of a viral reality
sensation.2
In May 2012, TLC announced that Honey Boo Boo would be starring in her
own Toddlers and Tiaras spinoff, Here Comes Honey Boo Boo.3 According to
TLC, Here Comes Honey Boo Boo would “give viewers an inside look into Alana’s
world.”4 The show was set to follow the lives of Alana and her family: “stay-athome mom June, chalk-mining dad Sugar Bear, and sisters 12-year-old Lauryn
‘Pumpkin,’ 15-year-old Jessica ‘Chubbs,’ and 17-year-old pregnant Anna
‘Chickadee,’ in their hometown, McIntyre, Georgia. 5 On August 8, 2012, roughly
2.2 million viewers, beating out coverage of the Republican National Convention, 6
J.D. Candidate, Benjamin N. Cardozo School of Law, Class of 2014; B.A. Pennsylvania State
University, 2011.Special thanks to my family and friends for their love and support throughout this
entire process. Additionally, special thanks to Professor Leslie Newman, Adjunct Professor Jarrod
Reich, and Cardozo Journal of Law & Gender Notes Editor, Claire Steinman, for their guidance,
feedback, and patience throughout umpteen revisions of this Note. I couldn’t have done it without you!
1 Precious Moments Pageant, IMDB.COM, http://www.imdb.com/title/tt2036252/ (Sept. 7, 2011).
2 Yvonne Villareal, Honey Boo Boo’s go-go rise, LOS ANGELES TIMES (Aug. 29, 2012),
http://articles.latimes.com/2012/aug/29/entertainment/la-et-st-0829-honey-boo-boo-20120829.
3 Zach Johnson, Exclusive: Honey Boo Boo Starring in Toddlers & Tiaras Spinoff!, US WEEKLY
(May 31, 2012),
http://www.usmagazine.com/entertainment/news/honey-boo-boo-starring-in-toddlers--tiaras-spinoff2012315#ixzz1wS6bWywC.
4 Id.
5 ‘Toddlers And Tiaras’ Spinoff ‘Here Comes Honey Boo Boo,’ Starring Alana Thompson, Comes
To
TLC,
HUFFINGTON
POST
(May
31,
2012,
10:48
AM),
http://www.huffingtonpost.com/2012/05/31/toddlers-tiaras-spinoff-here-comes-honey-boo-booalana_n_1558995.html [hereinafter ‘Toddlers And Tiaras’ Spinoff].
6 “Within the key demographic of adults 18 - 49, the reality show beat out every other cable and
broadcast network for the night, including ABC’s, CBS’s, and NBC’s coverage of the Republican
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tuned in to “meet” the Thompson clan during the season premiere of Here Comes
Honey Boo Boo.7 During the six half-hour episode series, viewers watched the
Thompson clan fart at the dinner table, bob for pig’s feet at the Redneck Olympics,
dumpster dive for “new” clothes, eat road kill, and belly-flop into giant mud pits.8
Aside from this rare view into “how the other half lives,” what drew viewers to
Here Comes Honey Boo Boo were the outrageous one-liners of Honey Boo Boo
herself.9 The self-proclaimed “superstar”10 who coined the term “redneckognize”
and famously proclaimed that a dolla makes her holla has proven that she can do no
wrong.11 After wrapping up season one with the birth of Alana’s six-fingered baby
niece Kaitlyn,12 it was announced that the Thompson family would be back for a
second season of Here Comes Honey Boo Boo, complete with three additional
“Holladay” episodes and a rumored hefty salary increase. 13
Broadly speaking, this Note “is a story about the decade’s most influential,
most prolific, most dynamic cultural product”: reality television. 14 Reality
television has been defined as “television programming that presents purportedly
unscripted melodramatic or ‘humorous’ situations, documents actual events, and
usually features ordinary people instead of professional actors, sometimes in a
National Convention.” Tracie Egan Morissey, More People Watched Here Comes Honey Boo Boo Than
the Republican National Convention, JEZEBEL.COM (Aug. 31, 2012), http://jezebel.com/5939572/morepeople-watched-here-comes-honey-boo-boo-than-the-republican-national-convention.
7 Jennifer Banks, You Better Redneckognize! CBS Atlanta Interviews Honey Boo Boo Again,
CBSA.TLANTA.COM (Nov. 14, 2012), http://www.cbsatlanta.com/story/19547555/you-betterredneckognize-cbs-atlanta-interviews-honey-boo-boo-again.
8 Gina Salamone, ‘Here Comes Honey Boo Boo’ Wraps Up First Season as Pageant Princess
Alana Thompson Wins Over Fans, N.Y.
DAILY NEWS (Sept. 26, 2012),
http://www.nydailynews.com/entertainment/tv-movies/america-cuckoo-honey-boo-boo-article1.1167955.
9 Bonnie
Fuller,
Alana
‘Honey
Boo
Boo’ Thompson,
HOLLYWOODLIFE.COM,
http://hollywoodlife.com/celeb/honey-boo-boo-alana-thompson (last visited Nov. 3, 2013).
10 Michelle Boudin, Parents outraged over kid beauty pageant, WCNC.COM (Sept. 29, 2012),
http://www.wcnc.com/news/local/Parents-outraged-over-kid-beauty-pageant-171816701.html.
11 Starcasm has created a Redneckipedia in which they define the most memorable quotes and
“words” from the cast of Here Comes Honey Boo Boo. ASA Hawks, The Here Comes Honey Boo Boo
Redneckipedia
(aka
“Rednixicon”),
STARCASM.NET
(Aug.
22,
2012),
http://starcasm.net/archives/171751.
12 Daily Mail Reporter, From the Birth of Her Six-fingered Niece to a Showstopping Pageant, Here
Comes Honey Boo Boo Finale Pulls Out All the Stops, DAILYMAIL.CO.UK (Sept. 27, 2012, 10:05 AM)
http://www.dailymail.co.uk/femail/article-2209458/Honey-Boo-Boo-Child-family-welcome-babyKaitlyn.html.
13 Reportedly, The Thompson family’s salary was rumored to be doubling from $4,000 to $8,000
per episode in season 2 of Here Comes Honey Boo Boo. Corinne Heller, ‘Here Comes Honey Boo Boo’
Renewed: TLC Orders More Episodes, ‘HOLLAday specials’, ONTHEREDCARPET.COM (Sept. 26,
2012),
http://www.ontheredcarpet.com/Here-Comes-Honey-Boo-Boo-renewed:-TLC-orders-moreepisodes--HOLLAday-specials/8825849; Kimberly Nordyke, TLC Orders More ‘Here Comes Honey
Boo Boo’ Episodes, Specials,
THE HOLLYWOOD REPORTER (Sept. 26, 2012),
http://www.hollywoodreporter.com/live-feed/here-comes-honey-boo-boo-more-episodes-renewed-tlcalana-june-370363.
14 Aaron Barnhart, How reality TV took over prime time, THE KANSAS CITY STAR (Dec. 6, 2010),
http://www.kansascity.com/2010/12/04/2497484/how-reality-tv-took-over-prime.html.
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contest or other situation where a prize is awarded.” 15 Since its debut in 1948,16
reality television has changed the face of prime-time television.17 In 2001, “reality
shows of all kinds accounted for 20 percent of TV’s prime-time schedule; today
they account for about 40 percent. And they were a key factor in Americans’
migration from network television to cable, where 90 percent of reality TV is
seen.”18 Instead of tuning in for the newest drama or a syndicated sitcom, viewers
are captivated by voyeuristic television in which real people’s lives seemingly
unfold before their eyes.19 With shows covering everything from singing
competitions and strange addictions to a simple day in the life, reality television
seems to offer something for just about everyone. 20
Despite impressive ratings and fans numbering in the millions, Here Comes
Honey Boo Boo has been met with widespread criticism. 21 Critics of the show
berate TLC for exposing viewers to the “underbelly of America” and giving
viewers “the green light to laugh at rednecks and fat people.”22 Additionally, the
Thompson family has been accused of child abuse, child exploitation, and even a
potential violation of child labor laws.23
15
ANNETTE HILL, REALITY TV: AUDIENCES AND POPULAR FACTUAL TELEVISION (2005).
Charles B. Slocum, The Real History of Reality TV Or, How Alan Funt Won the Cold War,
WRITERS GUILD OF AMERICA WEST, http://www.wga.org/organizesub.aspx?id=1099 (“Alan Funt, with
his 1948 TV series Candid Camera is often credited as reality TV’s ‘first practitioner.’”).
17 TV
Continues Reign of Popularity, MARKETING CHARTS (Oct. 11, 2011),
http://www.marketingcharts.com/television/tv-continues-reign-of-popularity-19607.
18 Barnhart, supra note 14.
19 Andy Dehnart, Are Reality Shows Worse Than Other TV?, N. Y. TIMES: OPINION PAGES (Oct.
21, 2012), http://www.nytimes.com/roomfordebate/2012/10/21/are-reality-shows-worse-than-other-tv.
20 “You’ve got your makeover shows, game shows, dating shows and, of course, talent shows like
‘American Idol’ and ‘Dancing With the Stars,’ which have garnered tremendous ratings for networks.”
Nsenga K. Burton, It’s Here to Stay: The Bad, the Ugly and Some Good, N. Y. TIMES: OPINION PAGES
(Oct. 22, 2012) http://www.nytimes.com/roomfordebate/2012/10/21/are-reality-shows-worse-thanother-tv/reality-tv-is-here-to-stay.
21 “A lot of reality television is salacious, exploitative and celebratory of violent, abusive and
predatory behavior – ‘Here Comes Honey Boo Boo‘ and ‘Love and Hip Hop‘ immediately come to
mind.” Id. “So-called reality shows have given us the countrified stereotypes of Honey Boo Boo and
the empty, unearned celebrity of the Kardashians.” Eric Deggans, Reality TV Is What We Make of It, N.
Y. TIMES: OPINION PAGES (Oct. 21, 2012), http://www.nytimes.com/roomfordebate/2012/10/21/arereality-shows-worse-than-other-tv/reality-tv-is-what-we-make-of-it.
22 Tim Goodman, ‘Honey Boo Boo’: That Joke Isn’t Funny Anymore, THE HOLLYWOOD REPORTER
(Aug. 22, 2012), http://www.hollywoodreporter.com/bastard-machine/here-comes-honey-boo-booalana-mama-364933.
23 “The parents of Alana Thompson, star of ‘Here Comes Honey Boo Boo,’ are facing accusations
of child abuse for feeding their daughter ‘Go Go Juice’ and roadkill!” Christina Stiehl, Honey Boo
Boo’s Parents Accused Of Child Abuse, HOLLYWOODLIFE.COM (Aug. 16, 2012),
http://hollywoodlife.com/2012/08/16/honey-boo-boo-alana-thompson-parents-accused-child-abuse/.
After Alana was photographed signing autographs in Milledgeville, Georgia, gossip websites began
speculating that Honey Boo Boo’s family may be violating child labor laws. The website is quoted as
saying “How many hours did they have her doing this? The government better keep an eye on her. You
know Honey Boo Boo’s family will be quick to violate child labor laws for a fat pay day and a Groupon
to KFC.” Roger Ratchet, Is Honey Boo Boo Being Worked Too Hard?, GOSSIPONTHIS.COM (Sept. 17,
2012) http://gossiponthis.com/2012/09/17/honey-boo-boo-being-worked-too-hard/.
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Unfortunately, Here Comes Honey Boo Boo is not the first reality television
show to be accused of violating child labor laws. In 2007, a CBS reality show
entitled Kid Nation was accused of child abuse and of violating New Mexico child
labor laws.24 Kid Nation documented the lives of 40 children between the ages of
eight and fifteen living on their own in an independently created society. 25 For
“forty days, the children of Kid Nation hauled wagons, cooked meals, managed
stores and cleaned outhouses, all in the name of building a society in front of reality
TV cameras.”26 Advocates for child performers, entertainment unions, and
television critics widely criticized the show. 27 However, despite unflattering
accusations, CBS officials maintained that the children were not “employees” and
that state labor laws did not apply. 28 Amidst the controversy, the CBS show left
New Mexico, leaving the applicability of the state child labor laws moot.29
In 2009, the TLC hit Jon & Kate Plus 8 was accused of violating
Pennsylvania’s child labor laws. 30 The show, which documented the lives of the
Gosselin family, sparked controversy regarding child exploitation and debate over
whether the eight Gosselin children were employees subject to child labor laws. 31
In 2010, the Pennsylvania state Department of Labor and Industry announced that,
though child labor permits should have been obtained for the children, they would
not take legal action against the producers of Jon & Kate Plus 8 provided that they
obtained permits in the future and, going forward, placed fifteen percent of the
gross proceeds of the show into a trust fund for the children. 32 More importantly,
“[t]he agency ruled that the children were employed under the state’s Child Labor
Law because of the direction they sometimes received, because of their continued
24 Edward Wyatt, CBS Was Warned on ‘Kid Nation,’ Documents Show, N. Y. TIMES (Aug. 22,
2007) http://www.nytimes.com/2007/08/22/us/22kid.html.
25 Edward Wyatt, A CBS Reality Show Draws a Claim of Possible Child Abuse, N. Y. TIMES (Aug.
18, 2007) http://www.nytimes.com/2007/08/18/arts/television/18kid.html?pagewanted=all.
26 Maria Elena Fernandez,’Kid Nation’ puts Hollywood labor tension into sharp focus, LOS
ANGELES TIMES (Aug. 29, 2007), http://articles.latimes.com/2007/aug/29/entertainment/et-kidnation29.
27 Bill Keveny, ‘Kid Nation’ premieres amid controversy, USATODAY (Sept. 19, 2007),
http://usatoday30.usatoday.com/life/television/news/2007-09-18-kid-nation_N.htm.
28 In a New York Times article regarding the Kid Nation controversy, Jonathan Anschell, overseer
of CBS’s West Coast legal office, stated that child labor laws did not apply to children on the show. He
said “The children were not employed under the legal definition. They were not receiving set wages for
performing specific tasks or working specific hours.” Parents were told that their children would be
receiving a $5,000 stipend for participating and that the children also had the opportunity to earn gold
stars that could be turned in at the end of the show for $20,000. Wyatt, supra note 25.
29 Wyatt, supra note 24.
30 The Associated Press, ‘Jon & Kate’ Plus… Child Labor Compliant, NBCNEWS.COM (MAY 29,
2009)
http://today.msnbc.msn.com/id/31001777/ns/today-entertainment/t/jon-kate-plus-child-laborcomplaint/#.UDwRBo6LT6k.
31 Id.
32 Kathy Matheson, No Legal Action in ‘Jon & Kate’ Child Labor Probe, NBCNEWS.COM (Apr.
16, 2010), http://today.msnbc.msn.com/id/36510868/ns/today-entertainment/t/no-legal-action-jon-katechild-labor-probe/#.UDwO_I6LT6k.
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participation in the series and because the Gosselins and others were paid for
participating in the show.”33
Here Comes Honey Boo Boo, Kid Nation, and Jon and Kate Plus 8 highlight
the legal problems presented by filming children for reality television shows.
When considering what legal safeguards should be used to protect child reality
stars, the central point of contention has been in the genre categorization of reality
television and the classification of child reality stars.34Recently, reality television
has been defined as “[a] hybrid of docu-style filmmaking and dramatic
storytelling.”35 Producers claim that the children on their shows are participants in
documentary-style programs and are not employees who would require payment
and other employee benefits, protections and claims. 36 Because child reality stars
are not considered performers eligible for protection from relevant child actor
provisions and union representation, nor workers eligible for the protection of child
labor laws, child reality stars are left in an uncharted legal grey zone. 37 This has
left child reality stars around the world vulnerable to safety hazards, exploitation,
contractual obligation, and financial difficulty. 38 In attempting to solve this
problem, commentators have called for federal regulation of child labor in reality
television.39 They argue that current state laws are inadequate to protect child
reality stars because producers can skirt the law by choosing to film in a state with
more favorable child labor laws.40 However, this assumption is simply untrue.
Many reality television shows that film children do so in their homes. 41 Uprooting
a family to another state to avoid child labor laws would not only no longer
constitute “reality,”42 but would usually be impractical.
This Note delves into the “legal grey zone” created by the use of children in
33
Id.
Matea Gold & Richard Verrier, Reality TV Kids Don’t Have a Safety Net, LOS ANGELES TIMES
(June 26, 2010), http://articles.latimes.com/2010/jun/26/entertainment/la-et-reality-kids-20100627/2.
35 Id.
36 Id.
37 Hilary Levey, Reality TV Kids Need the Law on Their Side, USATODAY (June 25, 2010),
http://www.usatoday.com/news/opinion/forum/2010-06-26-levey25_ST_N.htm.
38 Gold & Verrier, supra note 34.
39 Courtney Glickman, Comment, Jon and Kate Plus… Child Entertainment Labor Law
Complaints, 32 WHITTIER L. REV.147 (2010).
40 See Marc R. Staenberg & Daniel K. Stuart, Children as Chattels: The Disturbing Plight of Child
Performers, 32 BEVERLY HILLS B. ASS’N J. 21, (1997) (“The current mix of statutes applying to child
performers is complex, inconsistent and invites such unwelcome activities as forum shopping, excessive
travel, and family relocation as parents and studios vie for access to laws that suit their own financial
interests.”).
41 “Before it was canceled last year, ‘Jon & Kate Plus 8’ documented the lives of the couple and
their eight children at their Pennsylvania home.” Matheson, supra note 32. “In a press release, TLC said
the new series [Here Comes Honey Boo Boo] will feature Alana and her family at home.” ‘Toddlers And
Tiaras’ Spinoff, supra note 5.
42 Jim Bob Duggar, father on TLC’s “19 Kids and Counting” was quoted as saying, “The appeal of
the show is its observational approach to our daily routine, which is the same with or without the
cameras.” Gold & Verrier, supra note 34.
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reality television. Part I provides an overview of the history of child labor in the
United States with particular emphasis on the creation of the Fair Labor Standards
Act and its application to child reality stars. Part II discusses the current state of
child reality stars with regard to payment, trusts, work permits, and advocacy. Part
III explores the individual states in the United States that have created laws
designed to protect children in the entertainment industry. Finally, Part IV
proposes a solution to the problem of the legal status of child reality stars, calling
for a revision of child entertainer laws in states with prevalent television
production. This revision centers on specifically defining “reality television” to
ensure that child reality stars will receive the same protections as child actors.
I. HISTORY OF CHILD LABOR IN THE UNITED STATES
A. What is Child Labor?
Child labor has existed throughout American history. 43 It is defined by the
International Labour Organization as “work that: is mentally, physically, socially or
morally dangerous and harmful to children; interferes with their schooling by:
depriving them of the opportunity to attend school; obliging them to leave school
prematurely; or requiring them to attempt to combine school attendance with
excessively long and heavy work.”44
Regulation of child labor in the United States has often been a topic of
dispute between the federal government and the individual states.45 During the
Industrial Revolution, a shift in the labor market led workers from primarily
agricultural jobs to factory work in urban areas. 46 Factory owners preferred child
laborers to adult laborers because they viewed them “as more manageable, cheaper,
and less likely to strike.”47 In 1836, Massachusetts passed the first state child labor
law requiring children under fifteen who worked in factories to attend school at
least three months out of the year.48 In 1842, following the lead of Massachusetts,
other states began passing laws that limited the number of hours that a child could
work per day.49 As child labor became more common, Americans grew concerned
with the plight of working children. 50 In response, the National Child Labor
43 See generally Child Labor in US History, CHILD LABOR PUBLIC EDUCATION PROJECT,
http://www.continuetolearn.uiowa.edu/laborctr/child_labor/about/us_history.html (last visited Feb. 26,
2013).
44 See generally What is Child Labour, INTERNATIONAL LABOUR ORGANIZATION (ILO),
http://www.ilo.org/ipec/facts/lang--en/index.htm (last visited Feb. 26, 2013).
45 Child Labor in US Hisotry, supra note 43.
46 Id.
47 Id.
48 Id.
49 Id.
50 About
NCLC,
NATIONAL
CHILD
LABOR
COMMITTEE
(NCLC),
http://www.nationalchildlabor.org/history.html (last visited Feb. 26, 2013).
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Committee was formed, with the primary goal of bringing about federal child labor
reform.51 In 1916, under the federal government’s power to regulate interstate
commerce, the first child labor bill was passed by Congress and signed into law.52
The law “banned the sale of products from any factory, shop, or cannery that
employed children under the age of 14, from any mine that employed children
under the age of 16, and from any facility that had children under the age of 16
work at night or for more than 8 hours during the day.” 53 Just two years later
however, the Supreme Court of the United States found the statute unconstitutional
when it was challenged in Hammer v. Dagenhart.54
Yet, the movement to eradicate child labor continued with the proposal of the
Child Labor Amendment.55 The Child Labor Amendment would have granted
Congress the power to regulate the labor of children less than eighteen years of
age.56 The amendment caused wide-ranging controversy and never achieved
ratification.57 After extensive lobbying in 1938, child labor reformers could finally
rejoice, as Congress passed the Fair Labor Standards Act (FLSA) granting federal
protection to children in the labor market. 58 For the first time in United States
history minimum ages of employment and workday hours were regulated under
federal law.59 Despite constitutional challenges, in United States v. Darby, the
Supreme Court upheld the constitutionality of the FLSA and held that Congress
had the power to regulate employment conditions under the Commerce Clause
power.60 The FLSA has been in effect ever since. 61
51
Id.
The first child labor bill was known was the Keating-Owen Child Labor Act of 1916. KeatingOwen Child Labor Act of 1916 (1916), U.S. NEWS & WORLD REPORT (2003),
http://www.usnews.com/usnews/documents/docpages/document_page59.htm.
53 Id.
54 Because manufacturing goods, which may never reach interstate commerce, is a purely intrastate
activity, the court held that Congress does not have the power to regulate goods manufactured by
children under the Commerce Clause power. Hammer v. Dagenhart, 247 U.S. 251, 268 (1918).
55 The text of the 1926 Child Labor Amendment is as follows: “Section 1. The Congress shall have
the power to limit, regulate, and prohibit the labor of persons under eighteen years of age. Section 2.
The power of the several States is unimpaired by this article except that the operation of State laws shall
be suspended to the extent necessary to give effect to legislation enacted by the Congress.” See
generally Craig Walenta, The Failed Amendments, USCONSITUTION.NET (Jan. 24, 2010),
http://www.usconstitution.net/constamfail.html.
56 To add an amendment to the United States Constitution, the amendment must be ratified by 38
states. As of 1937, the Child Labor Amendment is still pending because it has only been ratified by 28
states. Id.
57 “Opponents’ charges ranged from traditional states’ rights arguments against increases in the
power of the Federal Government to accusations that the amendment was a communist-inspired plot to
subvert the Constitution.” Keating-Owen Child Labor Act of 1916, supra note 52.
58 Id.
59 Child Labor in US History, supra note 43.
60 U.S. v. Darby, 312 U.S. 100 (1941). U.S. v. Darby overturned Hammer v. Dagenhart. Id.
61 The Fair Labor Standards Act (FLSA), which prescribes standards for the basic minimum wage
and overtime pay, affects most private and public employment. It requires employers to pay covered
employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one52
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B. The Fair Labor Standards Act (FLSA)
The FLSA sets out the requirements regarding the minimum age at which a
person can begin working. Children under the age of fourteen may only work in
occupations not covered under the FLSA. 62 These uncovered occupations include
delivering newspapers to consumers, acting, completing chores around the house,
and babysitting.63 Under the FLSA, sixteen is the basic minimum age for
employment.64 Once a child turns sixteen, he or she may be employed in any
occupation not deemed hazardous by the Secretary of Labor, for an unlimited
number of hours.65 Once a person turns eighteen, they are no longer subject to
federal child labor rules.66
Since both the FLSA and state law govern youth employment, employers are
subject to whichever law imposes stricter standards. 67 Under the FLSA, as of July
24, 2009, the federal minimum wage has been set at $7.25 per work hour.68 The
1996 amendments to the FLSA established a youth minimum wage law, allowing
employers to pay employees under twenty years of age a minimum wage at the rate
of $4.25 per hour for their first consecutive ninety calendar days of employment.69
However, many states have minimum wage laws that often provide more
protections to employees, and employers are required to comply with both the
FLSA and the minimum wage laws in their respective states.70 Therefore, should a
state prohibit the youth minimum wage exception, and require employers to pay
youth workers more than $4.25 per hour, an employer in that state would be forced
to comply with the state law.71
In terms of overtime, the FLSA requires that unless specifically exempted,
and-one-half-times the regular rate of pay. For nonagricultural operations, it restricts the hours that
children under age 16 can work and forbids the employment of children under age 18 in certain jobs
deemed too dangerous. For agricultural operations, it prohibits the employment of children under age
16 during school hours and in certain jobs deemed too dangerous. The Act is administered by the
Employment Standards Administration’s Wage and Hour Division within the UnitedStates Department
of Labor. The Fair Labor Standards Act (FLSA), U. S. DEP’T OF LABOR,
http://www.dol.gov/compliance/laws/comp-flsa.htm (last visited Dec. 30, 2013).
62 Fact Sheet #43: Youth Employment Provisions of the Fair Labor Standards Act (FLSA) for
Nonagricultural Occupations, U.S. DEP’T OF LABOR WAGE AND HOUR DIV. (July 2010),
http://www.dol.gov/whd/regs/compliance/whdfs43.pdf.
63 Id.
64 Id.
65 Id.
66 See
generally FLSA Child Labor Rules Advisor, U.S. DEP’T
OF LABOR,
http://www.dol.gov/elaws/esa/flsa/cl/default.htm (last visited Feb. 26, 2013).
67 Fact Sheet #43: Youth Employment Provisions of the Fair Labor Standards Act (FLSA) for
Nonagricultural Occupations, supra note 62.
68 See
generally
Wage
and
Hour
Division,
U.S.
DEP’T
OF
LABOR,
http://www.dol.gov/whd/minimumwage.htm#.UIFpK46LT6k (last visited Feb. 26, 2013).
69 See generally Fact Sheet #32: Youth Minimum Wage - Fair Labor Standards Act, U.S. DEP’T OF
LABOR WAGE AND HOUR DIV. (July 2008), http://www.dol.gov/whd/regs/compliance/whdfs32.pdf.
70 Wage and Hour Division, supra note 68.
71 Fact Sheet #32: Youth Minimum Wage - Fair Labor Standards Act, supra note 69.
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employers must pay their employees time and a half for every hour worked in
excess of forty hours per week. 72 The Act does not limit the number of hours that
an employee over the age of sixteen may work per week.73 With regard to
recordkeeping, the FLSA requires that employers keep certain information on file
for every non-exempt employee.74 For employees under the age of nineteen, the
Act requires that employers have an employee’s birth date on file. 75
Though the FLSA has many exemptions, there are a few that specifically
relate to child laborers. The FLSA provides that “[y]outh younger than 16 years of
age working in nonagricultural employment in a business solely owned by their
parents or by persons standing in the place of their parents, may work any time of
day and for any number of hours.” 76 However, parents are prohibited from
employing children in manufacturing, mining, or any occupation deemed
hazardous.77 Additionally, FLSA child labor regulations do not apply to youth
engaged in the delivery of newspapers to consumers, and youth employed as actors
or performers in motion pictures, theatrical, radio, or television productions. 78 For
the purposes of the exemption, a performer is defined as:
a person who performs a distinctive, personalized service as a part of an
actual broadcast or telecast including an actor, singer, dancer, musician,
comedian, or any person who entertains, affords amusement to, or occupies
the interest of a radio or television audience by acting, singing, dancing,
reading, narrating, performing feats of skill, or announcing, or describing
or relating facts, events and other matters of interest, and who actively
participates in such capacity in the actual presentation of a radio or
72 Fact Sheet #43: Youth Employment Provisions of the Fair Labor Standards Act (FLSA) for
Nonagricultural Occupations, supra note 62.
73 Id.
74 The basic records that an employer must maintain under the FLSA are an employee’s: full name
and social security number, address with zip code, birth date if younger than nineteen, sex and
occupation, time and day of week when employee’s workweek begins, hours worked each day, total
hours worked each week, basis on which employee’s are paid, hourly wage, total daily or weekly
straight-time earnings, total overtime earnings, additions or deductions from employee’s wages, total
wages paid each pay period, and date and period of payment. See generally Fact Sheet #21:
Recordkeeping Requirements under the Fair Labor Standards Act (FLSA), U.S. DEP’T OF LABOR WAGE
AND HOUR DIV. (July 2008), http://www.dol.gov/whd/regs/compliance/whdfs21.htm#.UIF48o6LT6k.
75 Id.
76 See generally Exemptions from Child Labor Rules in Non-Agriculture, U.S. DEP’T OF LABOR
WAGE AND HOUR DIV., http://www.dol.gov/elaws/esa/flsa/cl/exemptions.asp (last visited Dec. 30, 2013)
“A person ‘standing in place of a parent’ generally means one who takes a child into his or her home and
treats the child as part of their own family, including educating and supporting the child.” Fair Labor
Standards Act Advisor, U.S. Dep’t of Labor, http://www.dol.gov/elaws/esa/flsa/docs/person.asp (last
visited Dec. 30, 2013).
77 The Secretary of Labor defines hazardous occupations in terms of agricultural and nonagricultural jobs. For a list hazardous occupations see the Fair Labor Standards Act; Prohibited
Occupations.
See
generally
Prohibited
Occupations,
U.S.
DEP’T
OF
LABOR,
http://www.dol.gov/elaws/esa/flsa/docs/hazardous.asp.
78 Exemptions from Child Labor Rules in Non-Agriculture, supra note 76.
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television program.79
Thus, if child participation on reality television was classified as acting or
performing, child reality stars would be specifically exempt from FLSA
regulations.80
C. Child Reality Stars: A Legal Grey Zone
To be covered under the FLSA, a person must be engaged in an activity that
is considered “work.”81 Though the FLSA uses the word “work” many times, the
Act itself does not provide a definition of what constitutes “work.” 82 Thus, the job
of determining what activities constitute “work” has been left up to the court
decisions.83
While acting and performing are commonly regarded as
occupations,84 they are specifically exempt from FLSA regulation. 85 Because the
FLSA provides a child actor/performer exemption, regulation of children in the
entertainment industry has been largely controlled by the individual states.86 On
the surface, state regulation of children in the entertainment industry seems like a
perfect solution to the shortcomings of the FLSA. In actuality, state regulation of
children in the entertainment industry has resulted in widespread inconsistency,
with child reality stars falling through the cracks. 87
As of January 1, 2012, sixteen of the fifty states in the United States do not
79 See generally 29 C.F.R. §570.125 (1983) for the Actors and Performers exception. For the
purposes of the Fair Labor Standards Act, the Administrator of the Wage and Hour Division has defined
the term “performer” for purposes of the exception in 29 C.F.R. §550.2(b). The Secretary of Labor
follows this definition when determining if a child qualifies for the exception. The definition does “not
include such persons as script writers, stand-ins, or directors who are neither seen nor heard by the radio
or television audience; nor shall it include persons who participate in the broadcast or telecast purely as
technicians such as engineers, electricians and stage hands.”
80 Id.
81 U.S. v. Darby (1941) overturned Hammer v. Dagenhart, 247 U.S. 268 (1918). Fair Labor
Standards Act Advisor: Am I Covered by the FLSA?, U.S.
DEP’T OF LABOR,
http://www.dol.gov/elaws/esa/flsa/scope/screen10.asp (last visited Feb. 10, 2014).
82 Mark A. Shank & Bridget A. Blinn, WHAT IS WORK? FLSA Pitfalls at the Beginning and End
of
the
Workday,
GHJHLAW.COM
(Mar.
26,
2010),
http://www.ghjhlaw.com/NewsPublications/Articles?find=11211.
83 In 1944, the Supreme Court defined “work” as “physical or mental exertion (whether
burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the
benefit of the employer and his business.” Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123,
321 U.S. 590, 591 (1944). During that same year, the Supreme Court clarified its definition and
determined “exertion” was not necessary for an activity to fall under the legal definition of “work.”
Armour & Co. v. Wantock, 323 U.S. 126, 127 (1944).
84 Occupation is defined as “a person’s usual or principal work or business, especially a means of
earning
a
living;
vocation.”
Occupation,
DICTIONARY.COM,
http://dictionary.reference.com/browse/occupation (last visited Feb. 26, 2013).
85 Youth
&
Labor,
U.S.
DEP’T
OF
LABOR,
http://www.dol.gov/dol/topic/youthlabor/entertainmentemployment.htm#. (last visited Mar. 5, 2012).
86 Jessica Krieg, There’s No Business Like Show Business: Child Entertainers and the Law, 6 U.
PA. J. LAB. & EMP. L. 429 (2004).
87 Gold & Verrier, supra note 34.
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regulate children in the entertainment industry at all. 88 In these states, minors
employed in the entertainment industry are specifically exempt from child labor
law regulations, leaving them without any legal safeguards at all. 89 Additionally,
almost half of the states do not require producers or employers to obtain work
permits for child entertainers.90 Though half of the states do require employers to
obtain youth work permits, a lack of consensus remains as to how to classify reality
television shows in terms of child labor laws. 91 While many producers use
classification confusion as a way to avoid statutory compliance, state agencies
responsible for regulating youth employment have also been unable to say
conclusively whether reality television shows need to obtain work permits for their
child performers.92
Recently, reality television has been classified as a “hybrid of docu-style
filmmaking and dramatic storytelling.”93 Some producers claim that child reality
stars are “participants in documentary style programs and not employees.” 94 By
claiming that reality television shows are nothing more than documentaries,
production companies attempt to draw a bright line between child reality stars as
“participants” and child reality stars as actors or performers. 95 In furtherance of
this concept, because documentaries are technically not supposed to be scripted,
producers argue that child reality stars are merely being documented as opposed to
directed.96 This distinction allows production companies to bypass child labor
88 The sixteen states in the United States that do not regulate children in the entertainment industry
are: Arizona, Colorado, Kansas, Kentucky, Maine, Mississippi, Montana, Nevada, New Hampshire,
Ohio, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wisconsin.
Child Entertainer Laws, U.S. DEP’T OF LABOR WAGE AND HOUR DIV. (Jan. 1, 2013),
http://www.dol.gov/whd/state/childentertain.htm#.UIsLKo6LT6k.
89 Gold & Verrier, supra note 34.
90 The twenty-four states that do not require work permits for child entertainers are Alabama,
Arizona, Colorado, Connecticut, Idaho, Indiana, Iowa, Kansas, Kentucky, Mississippi, Montana,
Nevada, New Hampshire, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee,
Texas, Utah, West Virginia, Wisconsin, and Wyoming. See generally Child Entertainer Laws, supra
note 88.
91 A public records investigation by The LA Times found that dozens of kids are appearing on
reality programs without legal safeguards because of widespread uncertainty about how to classify the
shows. In its examination of some of the most visible series featuring children under sixteen, The LA
Times found that a majority had not obtained work permits to employ minors — including TLC’s “19
Kids and Counting,” WE tv’s “Raising Sextuplets” and the entire “Real Housewives” franchise on
Bravo. Reality TV kids: A Legal Gray Zone, LOS ANGELES TIMES (June 26, 2010),
http://articles.latimes.com/2010/jun/26/entertainment/la-et-reality-kids-box-20100627.
92 Id.
93 Gold & Verrier, supra note 34.
94 Id.
95 Id.
96 After receiving a complaint alleging that Jon and Kate Plus 8 was not complying with
Pennsylvania child labor laws, investigators were sent in to determine whether the eight Gosselin
children were subject to the laws. In making this decision, investigators needed to determine “whether
the Gosselins’ house in southeastern Pennsylvania is essentially a TV set where producers direct much
of the action — in which case the law may apply — or if it’s a home where the kids aren’t really
working but are simply living their lives, albeit in front of the cameras.” The Associated Press, supra
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laws and effectively create a legal grey zone.
However, this so-called legal grey zone is nothing more than smoke and
mirrors. The absurd situations and melodramatic meltdowns that comprise most
reality television shows lead critics and fans alike to wonder just how much of
reality television is actually real.97 One major reality television producer was
quoted as saying, “[T]hey’re loosely scripted. Things are planted. Things are salted
into the environment so things seem more shocking.” 98 So, if reality television
shows are even “loosely scripted,” what differentiates a child reality television star
and a child actor or performer?
II. THE CURRENT STATE OF CHILD REALITY STARS
A. Are Child Reality Stars Being Paid?
Is a dolla really making Honey Boo Boo or any of the other child reality stars
holla? Well, the jury is still out on this one. Since production companies and
reality television stars themselves are often reluctant to comment on their salaries,
most of what is known about payment for participation on reality television shows
comes from estimation and speculation.99 Though TLC declined to comment on
Honey Boo Boo’s actual salary, it is estimated that the pageant contestant-turnedreality star is currently making $2,000 per episode of Here Comes Honey Boo
Boo.100 However, because Georgia’s child labor law does not require parents of
child entertainers to place a percentage of their wages into a trust account for the
child,101 Honey Boo Boo could end up with nothing. 102
note 30. “George Voegele, a labor lawyer at Cozen O’Connor in Philadelphia, said the state Labor
Department might well decide it doesn’t have jurisdiction over the show, especially if investigators
determine the cameras are there to document the kids, not direct them.”Id.
97 The creator of The Bachelor was quoted as saying “I think there’s all kinds of (bull) going on
behind the scenes with, I would say, outside of the talent shows and ‘The Bachelor,’ where we really kill
ourselves and spend a lot of money and time and destroy our staff to make sure it’s real, that 70 to 80
percent of the shows on TV are (bull),” Ree Hines, ‘Bachelor’ creator claims ‘70 to 80 Percent’ of
Reality
TV
is
Fake,
MSN:
THE
CLICKER
ON
TODAY
(June
15,
2012),
http://theclicker.today.com/_news/2012/06/15/12240003-bachelor-creator-claims-70-to-80-percent-ofreality-tv-is-fake?lite.
98 Id.
99 “One guide to how much the Thompsons may earn comes from TLC’s other series built around
unorthodox families.” Gary Susman, The Kardashians, Real Housewives, Teen Moms, Honey Boo Boo
and More: How Much Do Reality TV Stars Earn? (ANALYSIS), CELEBUZZ! (Sept. 17, 2012),
http://www.celebuzz.com/2012-09-17/the-kardashians-real-housewives-teen-moms-honey-boo-boo-andmore-how-much-do-reality-tv-stars-earn-analysis/.
100 ‘Honey Boo Boo’ Alana Thompson Likely Getting A Salary Increase, THE HUFFINGTON POST
(Sept 27, 2012), http://www.huffingtonpost.com/2012/09/27/honey-boo-boo salary_n_1919841.html.
101 See GA. COMP. R. & REGS. DEP’T OF LABOR § 300-7-1 (2013).
Entertainment Employment is defined as, “association through performance or participation with any
motion picture production company, theatrical group or association, broadcasting (radio and television)
or photographic modeling agency whether or not monetary remuneration is provided.” Employers are
required to obtain work permits for child entertainers. Minors 15 years of age and under may not work
or be present at a production or performance site for more than 10 hours. Such 10 hour maximum shall
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And then there’s Mason Dash Disick, son of reality television queen
Kourtney Kardashian and Scott Disick.103 In December 2011, entertainment
finance expert Jo Piazza estimated that Mason likely made $3,000 per episode of
Kourtney and Kim Take New York.104 This estimate was based on the salaries of
other Kardashian family members for their appearance on their reality television
shows and the salaries of other children on hit reality television shows. 105 Piazza
also noted that while Mason was under two years of age, there were very strict laws
regarding how many hours he was able to work. 106
Nadya Suleman, professionally known as “Octomom,” reportedly signed an
agreement that would have each of her fourteen children making $250 per day to
star in a reality television show. 107 The contracts required a judge’s approval and
would guarantee that Suleman’s children would earn $250,000 over three years.108
Accordingly, a trust was set up for all of her children who were under eight years
old.109 The show was scheduled to begin filming on September 1, 2009,110
however because of the show’s projected demographic, it is unlikely that it will
ever hit American airwaves.111
include at least: a one-hour break for meals, a one-hour rest and recreation period, if the minor is present
for more than four (4) hours; and any additional breaks as may be necessary to ensure the heath, safety,
and well-being of the minor. When employment of minors 15 years of age and under requires absence
from regular school curriculum in excess of two (2) consecutive calendar school days, an authorized
tutor must be provided at the location of the production or performance. The tutor shall be provided by
the production or performance company, and neither the minor, nor the minor’s family, shall incur, in
part or whole, the cost associated with the tutor. Each minor shall be provided at least three (3) hours of
instruction per day.
102 Christopher Zara, There Goes Honey Boo Boo: Reality TV And The Exploitation Of Children,
INTERNATIONAL BUSINESS TIMES (Sept. 20, 2012), http://www.ibtimes.com/there-goes-honey-boo-booreality-tv-and-exploitation-children-794002.
103 Sarah Michaud, Kourtney Kardashian Welcomes A Son, PEOPLE.COM (Dec. 14, 2009),
http://www.people.com/people/article/0,,20327044,00.html.
104 Beth Sobol, Mason Disick Makes $3,000 an Episode, Estimates Expert — Exclusive!,
WETPAINT.COM
(Dec.
7,
2011),
http://www.wetpaint.com/kourtney-and-kim-take-newyork/articles/mason-disick-makes-3000-an-episode-estimates-expert--exclusive.
105 Id.
106 See generally SAFETY ON THE SET, THE EMPLOYMENT OF MINORS IN THE ENTERTAINMENT
INDUSTRY (“THE BLUE BOOK”), available at http://www.safetyontheset.com/Minos%20%20Blue%20Book.pdf (summarizing CAL. CODE REGS. DEP’T OF INDUS. REL. 8, § 11750 (2013)).
According to the Employment of Minors in the Entertainment Industry (“The Blue Book”), infants 15
days to 6 months can only spend a maximum of 2 hours at their place of employment and can work no
more than 20 minutes. Babies 6 months to 2 years can work for a maximum 2 hours, with a 2 hour rest
period, and a half hour meal break, totaling 4 and a ½ hours per day. Id.
107 The Associated Press, Suleman Inks Reality Show Deal for her 14 kids, NBCNEWS.COM (July
31, 2009), http://today.msnbc.msn.com/id/32133392#.UI6yro6LT6k.
108 The contracts for Nadya Suleman’s children were filed in Los Angeles Superior Court on July
31, 2009. Id.
109 Id.
110 Id.
111 Nadya Suleman’s reality show is being produced out of England by Eyeworks. Reportedly, “the
story of the mother of six who suddenly expanded her brood by eight is not being produced for the
American market but for another market nearly as robust — the market that enjoys watching Americans
being crazy.” Belinda Luscombe, The Octomom’s Reality Show: Not for American Eyes, TIME:
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According to the TLC network, the eight Gosselin children, stars of Jon and
Kate Plus 8, were not paid at all for almost the entire series. 112 During a
“December 10, 2009 court hearing under oath, TLC’s Edward Sabin admitted that
their contract does not and has never provided for any payment for the kids . . . “ 113
After Jon and Kate Gosselin infamously split, Kate Gosselin and the eight Gosselin
children agreed to star in a reality television spinoff entitled Kate Plus 8.114 In
contrast with the payment structure of Jon & Kate Plus 8, Kate Gosselin and the
eight Gosselin children were slated to earn upwards of $700,000 for their
participation in the new show.115 Accordingly, $500,000 was supposed to go to
Kate Gosselin and $200,000 was supposed to go directly to the eight Gosselin
children.116 That would mean that each Gosselin child would earn $25,000 for his
or her time on the show. 117
Though the aforementioned child reality stars are seemingly raking in hefty
paychecks, there are many child reality stars that do not get paid at all. Indeed,
“[m]ost reality show children are not guaranteed that they will be compensated or
that any money they do earn will be set aside for them.” 118 Allegedly, TLC’s
Toddlers and Tiaras does not pay the children starring in the show. 119 Though the
show has served as a launching point for two of its stars, Alana Thompson 120 and
Eden Wood,121 according to an insider, the “pageant queens get nothing but
exposure.”122
ENTERTAINMENT (June 3, 2009), http://www.time.com/time/arts/article/0,8599,1902269,00.html.
112 Gary Coleman’s $1.3 Million Lawsuit Against his Parents, REALITYTVKIDS.COM (May 28,
2010), http://www.realitytvkids.com/2010/05/gary-colemans-13-million-lawsuit.html.
113 Id.
114 Despite Jon Gosselin’s attempts to legally estop his children from appearing on television, in
April 2010, TLC announced that Kate Plus 8 would air. Breanne L. Heldman, Kate Plus 8 Returns!
Gosselin Lands New TLC Show and Specials, EONLINE.COM (Apr. 8, 2010),
http://www.eonline.com/news/175485/kate-plus-8-returns-gosselin-lands-new-tlc-show-and-specials.
115 Aly Semigran, Do Jon Gosselin’s Kids Earn More Than He Does?, IVILLAGE.COM (June 16,
2010), http://www.ivillage.com/jon-gosselins-kids-earn-more-he-does/1-a-211788.
116 Rob Shuter, Gosselin Kids Earn More Than Jon on ‘Plus Eight’, POPEATER.COM (June 16,
2010), http://www.popeater.com/2010/06/16/kate-gosselin-kids-money/.
117 Semigran, supra note 115.
118 Gold & Verrier, supra note 34.
119 “Toddlers & Tiaras does not pay their kids . . . They survive off of finding unique stories that
draw in viewers. They don’t even pay for the families’ entry fees into the pageants. But the moms do it
because it’s good exposure for their little girls and that’s exactly what they want.” Branden Barker,
Toddlers & Tiaras Stars Don’t Get Paid, REALITYNATION.COM (June 18, 2012),
http://www.realitynation.com/tv-shows/toddlers-tiaras/stars-dont-get-paid-95156/14825/.
120 Johnson, supra note 3.
121 In March 2012, it was announced that seven-year-old Eden Wood, formerly the star of TLC’s
Toddlers and Tiaras, would be getting her own reality show entitled Eden’s World on Logo. Eden Wood
Of ‘Toddlers & Tiara’ Gets Show On Logo, ‘Eden’s World,’ THE HUFFINGTON POST (Mar. 15, 2012),
http://www.huffingtonpost.com/2012/03/15/eden-wood-edens-world_n_1349783.html. Eden Wood also
recently landed the role of ‘Darla’ in The Little Rascals remake. Borys Kit, ‘Toddlers & Tiaras’ Star
Nabs Darla Role in ‘Little Rascals’ Movie (Exclusive), THE HOLLYWOOD REPORTER (Oct. 10, 2012),
http://www.hollywoodreporter.com/news/toddlers-tiara-star-cast-little-378057.
122 Barker, supra note 119.
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One show that has sparked a plethora of criticism and allegations regarding
exploitation and child labor law violations is the Real Housewives series.123 After
TMZ reported a contract negotiation standoff between The Real Housewives of
New Jersey star, Teresa Guidice, and the Bravo Network, it was revealed that the
baseline salary for the third season was $250,000 per housewife. 124 However
Bravo pays Caroline Manzo and Jacqueline Laurita, two of the other housewives,
more money, because they have adult children who appear on the show. 125 Teresa
Guidice has no adult children and receives no compensation for her four minor
daughters’ appearance on the show. 126 Though New Jersey regulates child labor in
the entertainment industry and requires that minors obtain work permits for their
performance in theatrical productions,127 there was no talk about paying the actual
Guidice children for their appearance on the show. 128
The inconsistency in payment of child reality stars leaves many unanswered
questions. Why are some child reality stars being paid while others are not? If
child reality stars’ appearances on reality shows do not constitute work, as many
networks and producers have tried to argue, then what exactly are the paid child
reality stars being paid for? And finally, what differentiates a child’s appearance
on a reality television show from that of a regular adult, or the “adult children” in
The Real Housewives of New Jersey series, besides the fact that all of the adults on
reality television shows can legally consent?129
B. Do Child Reality Stars Require Work Permits?
Though laws pertaining to youth work permits vary by state, most states
require a general work permit before a minor can begin any type of employment. 130
To obtain a general youth work permit, most states require a letter from the child’s
123 The Real Housewives series documents the lives of women and their families living in various
cities including Atlanta, New York, New Jersey, Miami, Beverly Hills, and Orange County. Catfights,
Controversy, Firings: The Untold Story Behind Bravo’s Half Billion Dollar ‘Real Housewives’
Franchise, THE HOLLYWOOD REPORTER (Jan. 4, 2012), http://www.hollywoodreporter.com/news/realhousewives-bravo-andy-cohen-cover-278072.
124 Report: NJ Housewife Teresa Guidice Making Less Money Than Co-Stars, REALITYTEA.COM
(Oct. 23, 2010), http://www.realitytea.com/tag/how-much-do-the-real-housewives-of-new-jersey-getpaid/.
125 The Manzo family was reportedly making $310,000 and the Laurita family was reportedly
making $270,000, while the Guidice family was making the $250,000 baseline for their participation on
the third season of The Real Housewives of New Jersey. Id.
126 According to a source, “Teresa understands her children can’t get paid because of issues with
child labor laws, but she just wants them to have a college fund.” Id. “New Jersey prohibits minors
from appearing in entertainment productions dangerous to their “life, limb, health or morals.” But the
state could not say whether the “Housewives” series was subject to its child labor laws.” Gold &
Verrier, supra note 34.
127 See generally N. J. STAT. ANN. 34:2-21.57- 34:2-21.64 (West 2013).
128 Report: NJ Housewife Teresa Guidice Making Less Money Than Co-Stars, supra note 124.
129 Semigran, supra note 115.
130 State Statutes, SAG-AFTRA http://www.sagaftra.org/content/state-statutes (last visited Dec. 30,
2013).
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school indicating good academic standing and a copy of the child’s birth
certificate.131 In addition to general work permits, twenty-four states require
separate work permits for minors in the entertainment industry. 132 However, in the
case of reality television, there is again a classification problem. Whether
producers of reality television shows and networks that sponsor reality television
shows must obtain work permits for minors featured in their shows depends on
whether the child on the show is considered “employed.” 133
In 2010, the Los Angeles Times filed public-records requests in ten states with
state agencies that regulate the employment of minors, in an attempt to determine
which of sixteen different reality television shows had applied for youth work
permits.134 It was determined that eleven of the sixteen reality television shows
had failed to obtain the necessary work permits before filming minors on their
shows.135 According to the Department of Labor, Arkansas, New Jersey, Oregon,
California, Georgia, New York, Virginia, and Florida all require work permits for
minors in the entertainment industry.136 However, no state could conclusively say
whether these reality shows should have obtained permits for the minors featured
on their shows.137
C. Trusts and Exploitation: Showing Child Entertainers the Money
California, Louisiana, New Mexico, and New York go one step further than
work permits. and additionally require proof of Coogan accounts, also known as
trust accounts or blocked trust accounts, before employing minors in the
entertainment industry.138 Coogan accounts are named for the famous child actor,
Jackie Coogan.139 At the age of 21, Coogan discovered that all of the money he
131
Id.
See generally Child Entertainer Laws, supra note 88.
133 Gold & Verrier, supra note 34. According to Krisann Chasarik, a Department of Industrial
Relations spokeswoman in California,”[i]n each case it is necessary to research the facts of production in
order to establish whether there is an employee-employer relationship” between the children and the
production. Id.
134 Reality TV Kids: A Legal Gray Zone, supra note 91.
135 According to the investigation, the offending reality television shows and their production states
were as follows: 19 Kids and Counting, Arkansas; Toddler’s and Tiaras, Arkansas; Table for 12, New
Jersey; Little People, Big World, Oregon; The Real Housewives of Orange County, California; The Real
Housewives of Atlanta, Georgia; The Real Housewives of New Jersey, New Jersey; The Real Housewives
of New York, New York; The Real Housewives of D.C., Virginia; Raising Sextuplets, Florida, and Little
Miss Perfect, Florida. Id.
136 See
generally Table of Entertainment Provisions, U.S.DEP’T OF LAB. (2013),
http://www.dol.gov/whd/state/childentertain.htm#.UJg-Y46LT6k.
137 Reality TV kids: A legal gray zone, supra note 91.
138 Eileen Courter, Why Accounts for Child Performers? It’s All About Member Service, CREDIT
UNION TIMES (Sept. 8, 2010), http://www.cutimes.com/2010/09/08/why-accounts-for-child-performersits-all-about-member-service.
139 Id.
132
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had earned from his film career was gone.140 Under the law in the early twentieth
century, all of Coogan’s earnings belonged to his parents. 141 Coogan sued his
mother and former manager for his earnings. 142 As a result of the suit, in 1939, the
Coogan law was passed in California to protect future child actors from ending up
in similar situations.143 Today, the Coogan law mandates that “[f]ifteen percent of
the gross earnings of a child actor, athlete or other performer must be deposited in
the account and can only be accessed by the child when he or she turns 18.”144
After revision of the Coogan law in 2000, the minor’s earnings are now considered
the separate property of the minor.145
Unfortunately, Coogan was not the only child star to find himself in this
situation. Shirley Temple, worth a reported $4 million by the age of 12,146 was left
with a mere $44,000 by the time she reached adulthood. 147 In her autobiography,
Temple wrote ““[w]hether siphoned off as expense or investment, my salary checks
had ended up in other purses.”148 Additionally, Gary Coleman, known for his role
on the television show Diff’rent Strokes, won $1.3 million dollars in a lawsuit
against his parents “alleging that they improperly profited from his financial
success.”149
Under a Coogan account, parents or guardians of the minor have control over
the account as the trustee.150 Though parents or guardians have control over
Coogan accounts as trustees, no withdrawals are allowed until the minor reaches
eighteen years of age.151 Most of the time, a parent must submit proof of the
existence of a Coogan account and the Coogan account number to an employer
before receiving a work permit for his or her child. 152 After submission of proof of
the Coogan account and the account number to the employer, the employer is then
required to withhold fifteen percent of the minor’s gross earnings and deposit the
sum into the child’s Coogan account within fifteen days of employment.153
140 Charlie Chaplin discovered Jackie Coogan in 1919. Coogan was soon cast in Chaplin’s film, The
Kid. Coogan Law, SAG-AFTRA, http://www.sagaftra.org/content/coogan-law (last visited Dec. 30,
2013).
141 Courter, supra note 138.
142 Coogan Law, supra note 140.
143 Id.
144 Courter, supra note 138; see also CAL. FAM. CODE § 6750-6753 (West 2013).
145 Coogan Law, supra note 140.
146 Jenifer Warren, Bill Would Protect Child Stars’ Earnings, LOS ANGELES TIMES (Apr. 25, 1999),
http://articles.latimes.com/1999/apr/25/news/mn-31018.
147 Courter, supra note 138.
148 Warren, supra note 146. (“Through all those hoary [financial] records one human theme pulsed
loud and clear: Keep dancing, kid, or the rickety card house collapses.”). Id.
149 Id.
150 George
Boykin,
What
Is
A
Blocked
Trust
Account?,
THENEST,
http://budgeting.thenest.com/blocked-trust-account-24080.html (last visited Dec. 30, 2013).
151 Id.
152 Id.
153 Id.
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New Mexico, New York, and Louisiana have followed California’s lead and
set up Coogan-like laws.154 In accordance with New Mexico law, a blocked trust
account must be established for all un-emancipated minors employed under
contract for $1,000 or more.155 The blocked trust account must be provided within
fifteen days after the start of employment.156 Under the law, the minor’s earnings
are considered the separate property of the minor. 157 Similarly, in 2003, New York
created The Child Performer Education and Trust Act of 2003 (CPET).158 Under
the law, parents in New York are required to open trusts accounts that comply with
the Uniform Gifts to Minors Act (UGMA) and/or the Uniform Transfers to Minors
Act (UTMA).159 These accounts allow parents to transfer assets to minors and
allow minors to own securities without having to create special trusts. 160 In 2006,
Louisiana revised §2133, known as the “Child Performer Trust Act,” to include a
trust requirement.161 The Louisiana Act requires that fifteen percent of a minor’s
gross earnings under contract for artistic or creative services be placed in a blocked
trust fund account from which no funds may be withdrawn until the minor reaches
the age of eighteen or “unless the minor is determined to be in necessitous
circumstances by a court of competent jurisdiction.” 162
While Coogan accounts seem like a step in the right direction for protecting
the earnings of child actors, child trust accounts still may not be safe from
exploitation. In 2009, after receiving complaints, the Pennsylvania Labor
Department began investigating whether the hit show Jon and Kate Plus 8 was
violating child labor laws. 163 In April 2010, after an extensive investigation, the
Pennsylvania Labor Department decided that it would not take legal action against
the show if the producers agreed to set up a trust fund and obtain future work
permits for the Gosselin children.164 The Pennsylvania Labor Department stated
that “at least 15 percent of the gross proceeds, due to the children, must be placed
in trust funds until [the children] reach the age of 18 or unless needed for their
154 SCREEN ACTORS GUILD, YOUNG PERFORMERS HANDBOOK (2010),
available at
http://youngperformers.sagaftra.org/files/youngperformers/YPH_FNL3.pdf.
155 See generally N.M. STAT. ANN. §§50-6-1- 50-6-19 (West 2013).
156 Id.
157 Id.
158 The Child Performer Education and Trust Act of 2003 (CPET) is “a law that establishes rules for
child performers, their parents/guardians and their employers, both in and out of New York State.” See
generally Child Performer Education and Trust Act of 2003, S. 4696-B, REG. SESS. (N.Y. 2003),
http://www.labor.ny.gov/workerprotection/laborstandards/secure/ChildPerformerFAQ.shtm
159 Coogan Law, supra note 140.
160 See
generally
UGMA/UTMA
Accounts
Overview,
FRANKLIN
TEMPLETON
INVESTMENTS,https://www.franklintempleton.com/retail/pages/generic_content/prog_serv/ugma_utma/u
gma_utma_pub.jsf (last visited Mar. 1, 2013).
161 See LA. REV. STAT. ANN. §§51:2131- 51:2135 (2009).
162 Id.
163 Nicole Weisensee Egan, Jon & Kate Being Investigated for Child Labor Complaint,
PEOPLE.COM (May 29, 2009), http://www.people.com/people/article/0,,20281956,00.html.
164 Matheson, supra note 32.
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safety, education, welfare or health.”165 Due to this broad qualification, Jon and
Kate Gosselin are still able to withdraw money from their children’s trust fund
provided that it’s for the children’s “safety, education, welfare, or health.” 166
Because the Pennsylvania Labor Department didn’t specify what kinds of expenses
would qualify as “safety, education, welfare, or health,” the Gosselins are left with
broad discretion when making a withdrawal from their children’s accounts.
Furthermore, Bank of America, one of the banks where Coogan accounts can
be established, is being sued for illegally withdrawing monthly service charges
from child entertainers’ bank accounts. 167 As previously stated, the funds in
Coogan accounts are not accessible until the child entertainer turns eighteen or is
emancipated from his or her parents.168 The theory behind the suit is that the
monthly service charges by Bank of America constitute a withdrawal. 169 Attorneys
for the plaintiffs claim that in some instances, the monthly service charges lead to a
complete depletion of the child’s account.170
Consequently, some child
entertainers have found themselves owing money to the bank upon turning
eighteen.171 Accordingly, while blocked trust accounts outwardly seem to protect
the earnings of child entertainers, in some instances, the child’s earnings may still
be reachable by parents or banks.
D. Union Protection
While most child actors have the ability to obtain union protection from
major labor unions such as the Screen Actors Guild & American Federation of
Television and Radio Artists,172 child reality stars have not been so lucky.173
SAG-AFTRA is the most distinguished performer’s union in the world,
165 Id. Laurie Goldberg, a spokeswoman for TLC and Discovery Talent Services, stated that the
Gosselin children’s trust was set up in November 2010 and that the amount placed in the trust fund
exceeds the mandated 15%. Id.
166 Gary Coleman’s $1.3 Million Lawsuit Against his Parents, supra note 112.
167 Attorney’s for the plaintiff’s estimate that as many as 15,000 child entertainer’s could be affected
by Bank of America’s actions over the last four years. Abby Ellin, Child Actors Sue Bank of America,
ABCNEWS.COM (Sept. 20, 2012), http://abcnews.go.com/blogs/business/2012/09/child-actors-sue-bankof-america/.
168 Id.
169 Id.
170 Id.
171 The class is seeking compensatory damages for unfair business practices and an injunction.
Attorney for the plaintiffs hope that the Bank will just reimburse the children, rather than going through
legal shenanigans. Id.
172 SAG-AFTRA’s mission is to negotiate the best possible wages and working conditions for
young performers. Young Performers About, SAG-AFTRA, http://youngperformers.sagaftra.org/about
(last visited Mar. 3, 2013).
173 “SAG and the American Federation of Television and Radio Artists have little clout when it
comes to kids on reality TV shows because most of those programs are nonunion. Even when a show’s
hosts are covered under a union contract, subjects — including children — typically are not.” Gold &
Verrier, supra note 34.
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representing more than 165,000 actors, announcers, broadcasters, journalists,
dancers, DJs, news writers, news editors, program hosts, puppeteers, recording
artists, singers, stunt performers, voiceover artists, and other media
professionals.174 SAG-AFTRA representatives go on sets and monitor whether
child actors are being asked to work overtime or beyond the permitted work hours,
whether they are getting adequate meal breaks and rest periods, whether they are
being tutored safely and effectively, whether they are being asked to do hazardous
work, whether they are permitted to have their parents within sight and sound, and
whether they have been provided appropriate dressing rooms. 175 While SAGAFTRA does cover some reality programming, 176 “[b]ecause producers say reality
show kids are participants in documentary-style programs and not employees, child
labor laws are rarely applied. And because these productions have largely resisted
unionization, they do not have to comply with guild rules set up to protect child
performers.”177 Therefore, “for the vast majority of these shows, there are no statemandated instructors or union representatives on set to limit the number of hours
the children are on camera, to make sure they get meal breaks and go to school, or
to prevent exposure to dangerous situations.” 178
To help remedy this problem, in 1990, former child star Paul Petersen created
A Minor Consideration.179 A Minor Consideration is a non-profit, tax-deductible
foundation formed to give guidance and support to young performers.180 In
creating A Minor Consideration, Paul Petersen has dedicated his life to the
“emotional, financial, and legal protection of kids and former kids in show
business.”181 Additionally, Paul Petersen and A Minor Consideration have been
forerunners in advocating for better protections of child reality stars. 182 According
to Petersen, “[t]he great fiction is to pretend that these children are not
performers.”183 Because reality shows often resemble scripted shows, in that
174 See generally About Us, SAG-AFTRA, http://www.sagaftra.org/content/about-us (last visited
Mar. 4, 2013).
175 For Parents, SAG-AFTRA, http://www.sagaftra.org/content/for-parents (last visited Mar. 3,
2013).
176 Zara, supra note 102 (“In an email message to IBTimes, SAG-AFTRA representative Pamela
Greenwalt said the union does cover reality programing, including network hits such as “American Idol”
and “Survivor.” Moreover, she said, union contracts cover any programming that requires performance,
which “may include programs that contain scripted dialog, rehearsals, narration, hosts, or other live
performances, and includes documentaries and ‘reality based’ reenactment shows.”).
177 Gold & Verrier, supra note 34.
178 Id.
179 Paul Petersen is most famous for his role as “Jeff Stone,” son of Donna Reed, on “The Donna
Reed Show” (1958-1966).
Biography for Paul Petersen, IMDB.COM (March 3, 2013),
http://www.imdb.com/name/nm0676928/bio.
180 A MINOR CONSIDERATION, http://www.minorcon.org/ (last visited Mar. 3, 2013).
181 Biography for Paul Petersen, supra note 179.
182 See
generally About Us: In Ten Year’s Time, A MINOR CONSIDERATION,
http://www.minorcon.org/tenyearstime.html (last visited Mar. 3, 2013).
183 Gold & Verrier, supra note 34.
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producers stage scenes, plot story lines, and feed participants lines, the difference
between a child actor and a child reality star is illusory and production companies
should not be able to resist unionization based on semantics. 184
III. STATE PROTECTION OF CHILDREN IN THE ENTERTAINMENT INDUSTRY
A. California
1. Work Permits
California sets forth arguably the most extensive requirements for minors
employed in the entertainment industry. Minors aged fifteen days to eighteen years
must obtain a permit to work in the entertainment industry. 185 Furthermore,
employers must also obtain a permit to employ a minor in the entertainment
industry and submit proof of worker’s compensation insurance. 186 In applying for
an initial work permit, applications must include a copy of the child’s birth
certificate, proof of a Coogan account, a signature from the minor’s school
provided that the minor is of school age, and physician information provided that
the minor is an infant one month or younger. 187 California entertainment work
permits are typically valid for six months.188 Additionally, as of January 1, 2012, if
parents or guardians of the minor have never applied for a standard six-month
entertainment work permit, parents or guardians can now apply for a temporary
ten-day entertainment work permit.189 Temporary work permits are issued
184 “Advocates of children note that reality shows often resemble scripted shows, with producers
staging scenes, plotting story lines and feeding participants lines.” Id. “[T]he explosion of reality
television over the last 12-plus years has brought with it new semantic challenges for child-welfare
proponents. In many cases, reality-TV participants are considered not actors but contestants, a
designation that places them outside the jurisdiction of SAG-AFTRA.” Zara, supra note 102.
185 In California, the Department of Labor Standards Enforcement issues youth work permits. They
can be obtained free of charge via online, mail, or in person. See generally Information on Minors and
Employment, STATE OF CAL. DEP’T OF INDUS. REL., http://www.dir.ca.gov/dlse/DLSE-CL.htm (last
visited Mar. 3, 2013).
186 Id.
187 The initial application also requires the inclusion of a self-addressed stamped enveloped to mail
the permit back to the applicant. Permits require time for processing. Permit renewals are free of charge
and must be filed 2-3 weeks before expiration of the prior permit. California Adds Temporary Work
Permit
for
Child
Performers,
BACKSTAGE.COM
(Nov.
28,
2011),
http://www.backstage.com/news/california-adds-temporary-work-permit-for-child-performers/.
188 SAFETY ON THE SET, supra note 106.
189 See CAL. LAB. CODE § 1308.5 (West 2013). 10-day Temporary Entertainment Work permits
may only be issued once per minor. They are only available to minors between 15 days and 16 years of
age, who have never previously been issued an entertainment work permit. “Due to the medical
certification required per California Labor Code Section 1308.8 for minors between 15 days and one
month old; 10 Day temporary Entertainment Work Permits cannot be issued immediately for minors
between 15 days and one month old. Following receipt and verification of the medical certification, the
parent or guardian will receive an e-mail within one business day that the 10 Day Temporary
Entertainment Work Permit has been approved and is ready for printing.” 10 Day Temporary
Entertainment Work Permit, STATE OF CAL. DEP’T OF INDUS. REL. https://permits.dir.ca.gov/tewp/ (last
visited Nov. 3, 2013).
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immediately allowing a minor to bypass the time needed in processing a typical
entertainment work permit and the creation of a Coogan account. 190 Furthermore,
under § 6-1308.7 of the California Labor Code, youth entertainment work permits
forbid minors from working more than five consecutive days, provide up to five
excused absences from school per school year, and allows for minors to make up
all missed assignments and tests during school absences. 191
2. The New Coogan Law and Minors’ Contracts
The 1939 Coogan Law was amended in 2000 to account for various flaws in
the original Coogan Law.192 The new Coogan law covers 100% of minors’
contracts, makes child earnings the separate property of the child, lowers the set
aside amount to fifteen percent of gross earnings, and requires producers to make
timely deposits allowing for interest to accrue on a minor’s account. 193 As of
January 1, 2000, the new law covers all contracts for which “a person is employed
or agrees to render artistic or creative services, including services as an actor,
actress, dancer, musician, comedian, singer, stunt-person, voice-over artist,
songwriter, composer, conductor or designer.” 194 Furthermore, the new law also
covers:
contracts pursuant to which a person agrees to purchase or otherwise
secure, sell lease, license, or otherwise dispose of literary, musical, or
dramatic properties, or use of a person’s likeness, voice recording,
performance, or story of or incidents in his or her life, either tangible or
intangible, or any rights therein for use in motion pictures, television, the
production of sound recordings, the legitimate or living stage, or otherwise
in the entertainment field.195
Since the reality in reality television “was supposed to come from ordinary people
having genuine, unscripted reactions to highly contrived situations,” 196 the
language of the new Coogan law would seemingly include child reality stars. Yet,
California state child labor laws generally only apply to child reality stars in
California.197
190
California Adds Temporary Work Permit for Child Performers, supra note 187.
Table of Entertainment Provisions, supra note 136.
192 Coogan Law, supra note 140.
193 The old Coogan law only covered five percent of court-approved contracts, made the earnings on
the minor community property under California community property laws, required 20% of gross
earnings to be set aside, and allowed employers to wait several months before depositing money into the
minor’s account.
The New Coogan Law, SB 1162, A MINOR CONSIDERATION,
http://www.minorcon.org/newcoogan.html (last visited Mar. 3, 2013).
194 Id.
195 Id. (emphasis added).
196 Deggans, supra note 21.
197 Jacki Garfinkle, Little Stars, Big Child Labor Laws Drama, NBCNEWS.COM (Aug. 5, 2009),
http://www.nbcnews.com/id/32239425/site/todayshow/ns/today-entertainment/t/little-stars-big-child191
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511
Court-approved contracts take away a minor’s right to disaffirm a contract if
they signed during minority. 198 This is helpful for producers of a television series
or movie in which production could last for an extended period of time. 199 Courtapproved contracts require that fifteen percent of the minor’s earnings be set aside
by their employer and “preserved for the benefit of the minor.” 200 The court will
require that at least one parent or legal guardian act as trustee, unless the court
determines that appointing a different individual would be in the best interest of the
minor.201 This person may petition the court to require more than fifteen percent
of the minor’s earnings be set aside. 202 Court-approved contracts also create a
fiduciary relationship between the minor and his or her parent/guardian.203 Under
the law of trusts, the parent or guardian is responsible for paying all liabilities
incurred by the minor under the contract, including all taxes and payment for
services to the minor in relation to the contract.204 Court-approved contracts also
require the employer to deposit the mandated fifteen percent of the minor’s
earnings within fifteen business days of receiving the Coogan account
information.205
Non-court-approved contracts, on the other hand, still require that fifteen
percent of the minor’s gross earnings be set aside by the employer into a trust for
the minor.206 However, because the contract is non-court-approved, the minor’s
right to disaffirm simply because the contract was signed during minority is
unaffected.207 Thus, after signing a contract for theatrical services, a minor can
quit at any time during production.208 Further, an employer of a minor with a noncourt-approved contract is required to deposit funds into the minor’s Coogan
account within 15 business days after receiving the final court order denying
approval of the contract.209
B. New York
1. New York Arts and Cultural Affairs Law §§35.01 and 35.03
In 1983, New York State codified the New York Arts and Cultural Affairs
labor-laws-drama/.
198 The New Coogan Law, SB 1162, supra note 193.
199 Id.
200 Id.
201 Id.
202 Id.
203 Id.
204 The New Coogan Law, SB 1162, supra note 193.
205 Id.
206 Id.
207 Id.
208 Id.
209 Id.
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Law, which set forth the process for court approval of minors’ contracts. 210 As
previously stated, court approval of a minors’ contract prevents the minor from
disaffirming the contract.211 Section 35.03 lists the requirements for gaining court
approval.212 First, the approval process requires parental consent. 213 Second, the
court considers whether the overall contract is “in the best interest of the child.”214
Therefore, “an employer should be aware that, often, in addition to salary and
related expenses such as hotel and travel, the employer is usually responsible for
the cost of tutoring and other educational needs of the minor.”215 In determining
whether a contract is “in the best interest of the child,” courts consider the nature of
the work, the services to be performed, and the content involved. 216 Contrary to
the process in California, the approval process in New York is only for the minor’s
services and has no bearing on intellectual property interests. 217
An approved contract is valid for three years or less, or seven years if the
minor was represented by counsel. 218 The approved contract is usually limited to
one producer and cannot be assigned without court approval. 219 Lastly, the court
appoints a guardian ad litem to guard the infant’s property throughout the period of
time that the contract is in effect.220 A guardian ad litem represents the interests of
the minor and may be entitled to recommend changes to the contract to help it get
approved.221 The guardian ad litem is most often a parent or parents of the
minor.222
2. Child Performer Education and Trust Act of 2003
In October 2003, New York enacted the Child Performer Education and Trust
210
See N.Y. ARTS & CULT. AFF. § 35.03 (McKinney 2013).
Id.
212 Id.
213 The granting of approval is contingent on a written, filed acquiescence of the parent(s) or
guardian or a finding that the infant is emancipated. Id.
214 Id.
215 Employers are particularly responsible for paying for tutoring or other educational needs of the
minor when the services under the contract prevent the minor from attending school. Protecting Young
Talent in the Entertainment Business, DIANE KRAUSZ & ASSOCIATES (Apr. 14, 2005),
http://www.dianekrausz.com/new-york-law-journal.html.
216 Often the content involved (sexual content, violence or dangerous stunts), the time frame and the
age of the minor will all weigh heavily on deciding whether a contract meets the “best interests of the
minor.” Id.
217 See generally CAL. FAM. CODE §§ 6750-53 (West 2004); N.Y. ARTS & CULT. AFF. § 35.03
(McKinney 2013).
218 Counsel must be experienced and competent in the entertainment field in the original negotiation
of the contract. ARTS & CULT. AFF. § 35.03.
219 Id.
220 Id.
221 Id.
222 Protecting Young Talent in the Entertainment Business, supra note 215.
211
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Act (CPET), modeled after California’s Coogan law. 223 “As of March 29, 2004, a
guardian or parent of any minor performer residing or working in New York, must
establish a child performer trust account within 15 days of the start of employment,
unless one already exists.”224 CPET mandates that a minimum of fifteen percent of
the minor’s gross earnings be placed directly into the minor’s trust account from
the employer.225 The trust company must be appointed as an additional guardian
over the minor’s account once the balance reaches $250,000.226
In addition to the creation of a trust account, CPET also creates other
requirements in relation to minor performers. CPET requires that the parent or
guardian of the minor show that the minor is maintaining satisfactory academic
performance each semester, and must oversee any teacher hired by the
employer.227 Furthermore, CPET requires all minors working in New York State,
including non-residents, to obtain work permits.228 Finally, CPET requires regular
reporting of the funds in the minor’s account. 229
3. “Catching Up With Reality”: New York’s Effort to Modernize Child Entertainer
Laws
In August 2012, the New York Department of Labor submitted Notice of
Proposed Rulemaking to the Department of State regarding 12 New York Codes,
Rules, and Regulations (NYCRR) Part 186 entitled “Child Performers.” 230 The
rule proposed “establishes, consolidates, clarifies, and (in some instances) updates
all regulations and requirements regarding child performers within New York State.
It also, for the first time, includes and defines the term “reality show,” filling in
necessary protections for minors in this popular programming genre, especially
outside of Hollywood.”231 12 NYCRR Part 186 went into effect on April 1, 2013
223
Child Performer Education and Trust Act of 2003, supra note 158.
An account previously established in accordance with California’s Coogan law may be used if
the California trust account has a New York Office. Protecting Young Talent in the Entertainment
Business, supra note 216.
225 Child Performer Education and Trust Act of 2003, supra note 158.
226 Protecting Young Talent in the Entertainment Business, supra note 215.
227 Id.
228 Any minor who is a resident of New York, but will be working outside of New York, must apply
for a permit. Id.
229 Id.
230 Child Performer Regulations, N.Y. DEP’T OF LAB., http://www.labor.ny.gov/legal/childperformer-regulations.shtm (last visited Dec. 30, 2013).
231 Elissa D. Hecker & Diane Krausz, Proposed New Laws in New York State for Child PerformersCatching up with Reality, THE ENTERTAINMENT, ARTS AND SPORTS LAW BLOG, (Sept. 18, 2012),
http://nysbar.com/MT/mtsearch.cgi?IncludeBlogs=43,32,33,21,7,26,2,17,18,30,16,27,40,20,14,10,31,35,11,42,13,29,6,39,3,36,9,
41,12,15,38,34,37,43,19,5&search=Fair%20Credit%20Reporting%20Act. “‘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, data, and/or
sound recordings, on the Internet, or otherwise. ‘Reality Show’ shall not include the recording or live
224
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and ensures that child reality stars receive the same protections as other child
entertainers in New York.232
C. Pennsylvania
1. Murt’s Child Labor Bill
After watching a television show about the trials and tribulations of the
former child actors of The Donna Reed Show, including Paul Petersen of A Minor
Consideration, Pennsylvania State Senator Thomas Murt was inspired to revamp
the child labor code in Pennsylvania.233 In response to the 2009 child labor
investigation into Jon and Kate Plus 8 and the increasing amount of film and
television shows being shot in Pennsylvania, 234 Senator Murt introduced House
Bill 1548, seeking reformation of child labor laws pertaining to child
entertainers.235 The new law was designed to imitate California’s child labor
laws.236 After extensive investigation into Pennsylvania’s child labor laws,
Senator Murt discovered that children under the age of seven could not legally
appear on a television series in Pennsylvania.237 House Bill 1548 allows children in
Pennsylvania to appear on television but limits the number of hours that they can
work to no more than eight hours a day or forty-eight hours per week.238
Additionally, minors must finish working by no later than 10 P.M. on school
nights.239 Children on set who are under the age of sixteen are required to be
transmittal 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.” N.Y. COMP. CODES R. & REGS.
tit. 12 § 186 (2013).
232 “Child Performer regulations are being adopted and will take effect on April 1, 2013. The
Department submitted Notice of Adoption rulemaking documents to the Department of State on
February 19, 2013, for publication in the March 6 2013, issue of the State Register, and for inclusion the
New York Code of Rules and Regulations (“NYCRR”) as 12 NYCRR Part 186.” Child Performer
Regulations, supra note 230.
233 Gary Weckselblatt, Murt’s Child Labor Bill Comes of Age, PHILLYBURBS.COM (Oct. 25, 2012),
http://www.phillyburbs.com/news/local/the_intelligencer_news/murt-s-child-labor-bill-comes-ofage/article_a65c984b-b566-5758-90e1-abe66ab678e1.html.
234 “Between 2002 and 2008, 922 productions took place all or in part in Pennsylvania. In 2002, 31
films that were released took place in Pennsylvania. By 2008, that number increased to 175. That
represents an average annual growth rate of 33 percent over that period.” Taylor Backs Bill to Reform
Pennsylvania’s Child Labor Laws, PA HOUSE REPUBLICAN CAUCUS (June 4, 2010),
http://www.pahousegop.com/NewsItemPrint.aspx?NewsID=9080.
235 The dual purposes behind House Bill 1548 are to protect the health and financial well being of
child performers and set reasonable guidelines for film and television producers to follow. Murt Child
Labor
Bill
Goes
to
Governor,
REPMURT.COM
(Oct.
16,
2012),
http://www.repmurt.com/NewsItem.aspx?NewsID=15520.
236 Id.
237 Id. (Pennsylvania child labor laws were written before color television, HBO, and reality
television, leaving them old fashioned and obsolete.).
238 Id.
239 Id.
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accompanied by a parent or guardian at all times. 240 House Bill 1548 also requires
that a studio teacher be on set and that a trust account be created, into which fifteen
of the minor’s gross earnings must be deposited. 241 Though this bill is seemingly
identical to California’s Coogan law, it goes one step further and defines “reality
television” as “a genre of program that principally presents actual events and
generally features ordinary people and not professional actors.”242 On October 25,
2012, Governor Tom Corbett signed House Bill 1548 into law. 243 The regulation
took effect in late January 2013, giving Pennsylvania the third tightest child actor
laws behind only California and New York. 244 The new law serves to better
protect Pennsylvania’s children by placing reality television under many of the
same controls as other Pennsylvania state child labor laws. 245
IV. WHAT SHOULD BE DONE TO PROTECT CHILDREN ON REALITY TELEVISION?
There are few things that parents enjoy less than being told how to raise their
children.246 Thus, federal and state governments have essentially adopted a handsoff policy in relation to childrearing. 247 With the exception of compulsory school
attendance,248 how a parent chooses to raise his or her child is mainly in the control
of that parent. Consequently, the decision to put a child into show business, and
more specifically, onto a reality television show, rests with the parents.
Additionally, because there is no union representation for children on reality
television shows, understanding of the obligations that come with entertainment
contracts becomes the responsibility of often legally uneducated parents.249
While many people believe that children have no place in reality television,
reality television parents claim to have their children’s best interests at heart.250
240
Id.
Murt Child Labor Bill Goes to Governor, supra note 235.
242 Mark Nootbar, Child Actors Part of New PA Child Labor Law, WESA.FM (Dec. 31, 2012),
http://wesa.fm/post/child-actors-part-new-pa-child-labor-law.
243 Pennsylvania Governor Corbett Signs House and Senate Bills, PRNEWSWIRE.com,
http://www.prnewswire.com/news-releases/pennsylvania-governor-corbett-signs-house-and-senate-bills175785011.html (last visited Mar. 5, 2013).
244 Nootbar, supra note 242.
245 Id.
246 Randee Dawn, Do Children Ever Belong on Reality TV? NBCNEWS.COM (Sept. 19, 2011),
http://www.today.com/id/44505433/site/todayshow/ns/today-entertainment/t/do-children-ever-belongreality-tv/#.UPbY046RFc8.
247 For Parents, supra note 175.
248 See generally Table 174: Age range for compulsory school attendance and special education
services, and policies on year-round schools and kindergarten programs, by state: Selected years, 2000
through
2010,
NATIONAL
CENTER
FOR
EDUCATION
STATISTICS
,
http://nces.ed.gov/programs/digest/d10/tables/dt10_174.asp (last visited Feb. 12, 2014).
249 “And as Paul Petersen pointed out, there is no guild or union representation specifically for child
reality-TV stars. That leaves everything up to the parents — who may not be equipped to understand the
wider repercussions of their contracts. (Child actors do have the Screen Actors Guild and the American
Federation of Television and Radio Artists.)” Dawn, supra note 246.
250 Alexis Bellino, one of the “Real Housewives of Orange County,” introduced her three children to
241
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They also boast about the benefits that come from putting their children on reality
television including money, notoriety, and exposure. 251 As evidenced by the
unprecedented success of reality television shows starring children, reality
television and the child reality star trend seem to be growing exponentially.252
Since society has no legal means of preventing children from appearing on reality
television shows, it is imperative that legislators establish guidelines that will, at
the very least, ensure reality children’s safety and promote their wellbeing. 253
As previously noted, some states have extensive laws regarding children in
the entertainment industry.254 These laws require child entertainer work permits,
explain the approval process for minors’ contracts, mandate the establishment of
blocked trust accounts, and require employers to deposit a portion of the child
entertainer’s gross income directly into the child’s account. 255 Additionally,
unions such as SAG-AFTRA further protect child entertainers by requiring parental
supervision on set, setting the hours that a child can work per day and week,
making sure the child is receiving appropriate meal breaks and rest periods, and
making sure that the child is being effectively tutored. 256 However, child reality
stars are not guaranteed to receive any of these protections because of the looming
classification battle regarding reality television shows and the people starring in
reality television shows.257
As previously established, the federal government has the power to regulate
child labor.258 However, it is the responsibility of certain individual states to
strengthen their child labor provisions with regard to child entertainers. 259 States
that are recognized for their dominance in the entertainment industry and are thus
home to a majority of television production are particularly aware of the specific
problems surrounding child entertainers. 260 Therefore, legislatures in these states
should make creating a comprehensive legal remedy a priority. 261
reality TV when the oldest was 3 and the twins weren’t yet 1. She said she and her husband, Jim,
decided it was OK to do the show with their kids after undergoing “grueling therapy.” Id.
251 Id.
252 “The surplus of reality television is not perplexing or deep – it’s simple economics. Most reality
programming is cheap to produce and yields maximum ratings that can be leveraged to the hilt with
advertising agencies. Sorry, if you hate the genre, but it is not going anywhere.” Burton, supra note 20.
253 “‘Reality TV took the entertainment industry by surprise,’ said Galinsky. ‘No one could have
predicted that it would last this long, with no end in sight. Guidelines have to be drawn up at some point
to protect these kids, because there’s nothing now.’” Dawn, supra note 246
254 See generally Part III.
255 Coogan Law, supra note 140.
256 For Parents, supra note 175.
257 Levey, supra note 37.
258 U.S v. Darby, 312 U.S. 100 (1941).
259 Garfinkle, supra note 197.
260 See generally State-by-State Film and Economic Contribution, MOTION PICTURE ASSOCIATION
OF AMERICA, http://www.mpaa.org/policy/state-by-state (last visited Mar. 5, 2013).
261 Gold & Verrier, supra note 34.
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In creating this remedy, states with high rates of television production should
follow Pennsylvania and New York’s lead and specifically define “reality
television” within their child entertainment provisions. 262 States’ failure to do so
has left child reality stars at the mercy of fame-hungry parents263 and moneyhungry producers.264 While defining “reality television” will likely not cement
reality television into a specific television genre, it will legally establish that
children on reality television shows are neither participants nor contestants, but
rather employees who deserve legal protection.
In addition to defining “reality television,” states with high rates of television
production need to strengthen their child entertainer laws generally. California,
New York, and Pennsylvania child entertainer laws combined with SAG-AFTRA
union standards are all essential pieces of an effective solution to this problem. 265
In constructing an all-inclusive child entertainer law that will adequately protect
child reality stars, states with high rates of television production must incorporate
several provisions into their existing laws. As in California and New York, all
states must require the establishment of a Coogan or blocked trust account into
which employers are required to directly deposit a percentage of the child
entertainer’s earnings.266 While California and New York both require employers
to automatically deposit fifteen percent, the deposited percentage should be higher.
Putting more money into the blocked trust account will allow more interest to
accrue and result in a higher balance once the minor reaches eighteen. 267 This is
the best way to ensure that at least some of a child’s earnings will be available
when the child reaches the age of majority. While many states require work
permits for minors in entertainment, as previously noted, these provisions are rarely
enforced.268 State legislatures must actively enforce work permit provisions to
help ensure the safety of child reality stars and entertainers generally.
As in California, child entertainer laws must also include provisions that
forbid a minor from working more than five consecutive days, allow for five
excused absences from school, and allow child entertainers the opportunity to make
up missed school work.269 These provisions are important because they reinforce
the value of education and prevent child entertainers from having to choose
between work and school. In determining work hours, state legislatures should
follow Pennsylvania’s lead and mandate that a child entertainer can work no more
262
See generally Parts III.B.3 and III.C.1.
Garfinkle, supra note 197.
264 Burton, supra note 20.
265 See generally Part I C.
266 See generally Parts III.A.2 and III.C.1.
267 Interest rates vary at the nine banks, credit unions and brokerage firms that offer Coogan/Trust
accounts. Coogan Law, supra note 140.
268 Reality TV kids: A Legal Gray Zone, supra note 91.
269 Table of Entertainment Provisions, supra note 136.
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than eight hours per day or forty-eight hours per week, must be finished working by
10 P.M. on school nights, must be accompanied by a guardian if under the age of
sixteen, and must have a qualified studio teacher on set to assist the minor in
keeping up with school work.270 These provisions prevent exploitation by
producers and excessive working hours while concurrently allowing a child
entertainer to just be a child. To further ensure the safety of the child entertainer,
states should follow SAG-AFTRA’s lead and provide a state representative to
ensure that the child entertainer isn’t working overtime, is getting adequate meal
breaks and rest periods, is being effectively tutored, is provided with appropriate
dressing rooms, and isn’t being asked to engage in hazardous work.271 And finally,
state legislatures should follow New York’s lead and before approving a minor
contract, consider whether the contract is in the best interests of the child. 272 These
provisions combined will ensure that child reality stars are adequately protected
while working as child entertainers.
CONCLUSION
Reality television has changed the face of prime time programming.273
Dramatic series and comical sitcoms have been replaced with shows that purport to
follow the everyday lives of “real” people.274 In addition to new topics to discuss
at the proverbial water cooler, this television genre switch has engendered a legal
grey zone: children in reality television.
Though child entertainers are specifically exempt from the Fair Labor
Standards Act, many states have enacted child entertainer laws to promote the
safety and welfare of children in the entertainment industry. 275 Additionally,
unions have established rules to further advocate on behalf of children in the
entertainment business.276 However, child reality stars receive none of these
protections because of the struggle in determining whether reality shows cross the
line between storytelling and documentary filmmaking, and whether reality show
stars can legally be considered employees. 277 Since a large portion of reality
television is scripted and child reality stars are often paid, it is difficult to determine
what differentiates a child actor from a child reality star and why the former should
receive legal protection and the latter should not. To correct this injustice, states
with prevalent television production such as California and New York, 278 need to
270
271
272
273
274
275
276
277
278
See supra Part III.C.1.
See supra Part II.D.
See supra Part III.B.1.
Barnhart, supra note 14.
TV Continues Reign of Popularity, supra note 17.
See supra Part III.
See supra Part II.D.
Gold & Verrier, supra note 34.
State-by-State Film and Economic Contribution, supra note 260. (In 2011, 276 TV series were
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specifically define “reality television” within their child entertainer laws.
Furthermore, these states need to generally strengthen their child entertainer laws
by mandating the creation of a Coogan account, enforcing work permit laws, and
including provisions that allow child entertainers to continue to work and
simultaneously promote the importance of education and childhood. This is the
only way to effectively “catch up with reality” and ensure that child reality stars
receive the legal protection and safeguards they deserve.
filmed in California, and 113 TV series were filmed in New York.).