Section 40.5 - Employment of minors in a performance(a)General rule.--For purposes of this section, a minor is engaged in a performance if:(1) The minor models or renders artistic or creative expression in a live performance, on the radio, on television, in a movie, over the Internet, in a publication or via any other broadcast medium that may be transmitted to an audience and any person receives remuneration for the performance. Rehearsal for this activity is part of the performance.(2) The minor participates in a reality or documentary program that expressly depends upon the minor's participation, the minor's participation is substantial and any person receives remuneration for the minor's participation. For the purposes of this subsection:(i) Remuneration shall include one or more monetary payments, but shall not include reimbursement for expenses incurred by the minor or the minor's family, any prize or goods or services received in connection with the program with a value of less than $2,500.(ii) "Substantial" shall mean the minor is a principal subject of the reality or documentary program or the minor participates in the filming of the reality or documentary program for ten or more days in a 30-day period.(b) Requirements.--No minor may engage in a performance without an entertainment permit issued by the department. A minor may engage in a performance if the minor has an entertainment permit from the department for the length of the performance as provided for in subsection (c) and the following requirements are satisfied:(1) The performance is not hazardous to the minor's safety or well-being.(2) The minor's work hours do not exceed those permissible under subsection (d).(3) For live productions, the minor does not appear in more than three performances in a single day or ten performances in a single calendar week. For purposes of this paragraph, a calendar week shall be Sunday to Saturday.(4) The performance does not involve:(i) an act that constitutes sexual abuse or sexual exploitation of minors;(ii) boxing, sparring or wrestling, except for a bona fide school-related athletic or recognized amateur competition or activity or noncontact portrayal;(iii) activities having a high level of inherent danger including activities involving speed, height, a high level of physical exertion and highly specialized gear or spectacular stunts;(iv) an acrobatic act that is hazardous to the minor's safety or well-being;(v) use of or exposure to a dangerous weapon or pyrotechnical device;(vi) a hazardous performance, act or exhibition as defined by the department. The department shall publish a list in the Pennsylvania Bulletin which shall constitute prohibited hazardous performances, acts or exhibitions under this section, provided that the department, within three years of such publication, promulgate a regulation setting forth hazardous performances, acts or exhibitions; or(vii) in any occupation designated as hazardous and otherwise prohibited under the Fair Labor Standards Act.(5) A parent or guardian of a minor is permitted to be within sight or sound of the minor at all times.(c) Entertainment permits.--The following shall apply:(1) An entertainment permit shall be valid for up to six months and may be renewed under this subsection.(2) The department may charge a fee for each entertainment permit which shall be set through regulation.(3) An application for an entertainment permit shall: (i) be made on a form issued by the department and signed by the employer of the minor, if known, and the parent or legal guardian of the minor;(ii)contain a statement that the facts as set forth in the application are correct subject to the provisions of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities);(iii) state the legal and professional name of the minor, the date and place of the minor's birth, the name and permanent address of a parent or guardian of the minor, the name of the minor's parent or representative of the parent who will accompany the minor to rehearsals and performances, whether the minor has performed in other states requiring a permit or certificate to perform and whether the permit or certificate was obtained;(iv) for infants under the age of one month, include written certification from a licensed physician that the infant is physically capable of handling the requirements of the performance;(v) set forth, for all performances during school hours, accurate information regarding: (A) the name and address of the school attended and of the school district where the minor resides;(B)the grade the minor has completed in school;(C) the hours per week the minor attends school; and(D)a verification signed by the principal of the school attended by the minor or the issuing officer of the minor's school district that the performance and rehearsals will not interfere with the educational instruction or school progress of the minor or a guarantee that arrangements are made for a qualified tutor for the minor. If the minor is to be tutored, the application shall set forth the name and address of the tutor, whether the tutor is a certified teacher, the name and address of the school official approving the subjects for tutoring and the tutoring arrangements and the number of hours per week the minor is to be tutored; and(vi) provide any additional requirements set by the department through regulation.(4) An appeal of a decision by the department under this subsection must be made to the secretary. The secretary shall hold a hearing on the appeal.(5) The work permit requirements of section 9 do not apply to the issuance of permits under this section.(6) The department may require by regulation employers employing minors in performances to obtain permits and may charge a fee for such permits.(7) The department may waive any or all requirements in this section, with the exception of paragraph (3)(iv) for a performance of one day or less. The department shall indicate any waiver by any written means of communication, including, but not limited to, facsimile or e-mail.(d) Working hours for child performers.--The amount of time minors are permitted at the place of employment within a 24-hour period is limited according to age, as follows: (1) Infants who have not reached six months of age may be permitted to remain at the place of employment for a maximum of two hours.(2) Minors who have reached the age of six months of age but who have not attained two years of age may be permitted at the place of employment for a maximum of four hours and may work no more than two hours.(3) Minors who have reached two years of age but who have not attained six years of age may be permitted at the place of employment for a maximum of six hours and may work no more than three hours.(4) Minors who have reached six years of age but who have not attained nine years of age may be permitted at the place of employment for eight hours and may work no more than four hours.(5)Minors who have reached nine years of age but who have not attained sixteen years of age may be permitted at the place of employment for nine hours and may not work more than five hours.(6) Minors who have reached sixteen years of age but who have not attained eighteen years of age may be permitted at the place of employment for ten hours and may not work more than six hours.(7) When any minor between 14 and 18 years of age obtains permission from school authorities to work during school hours for a period not to exceed two consecutive days, the working hours for such minor during either or both of such days may be extended to but shall not exceed eight hours in a 24-hour period.(8)Allowable meal periods shall not be counted toward maximum hours permitted at the place of employment nor counted as work time for any purpose. A meal period shall not be less than one-half hour nor more than one hour in length.(9) For minors of school age who have not fulfilled compulsory education requirements and who have a work schedule that requires education while employed as provided in subsection (g), the nonwork time at the place of employment shall include education, rest and recreation.(10) The work day for a minor shall begin no earlier than 5 a.m. and shall end no later than 10 p.m. on evenings preceding school days. On evenings preceding nonschool days, the minor's work day shall end no later than 12:30 a.m. on the morning of the nonschool day.(11) Twelve hours must elapse between the minor's time of dismissal and time of call on the following day. If the minor's regular school starts less than 12 hours after his or her dismissal time, the minor must be schooled the following day at the employer's place of business.(12) With respect to any minor providing services at the minor's residence, this section shall not govern or limit the number of hours the minor is present at the residence, but shall instead apply solely to the hours the minor is providing such services.(e) Child performer trust account.-- (1) An irrevocable child performer trust account or a qualified tuition program established and maintained in accordance with section 529 of the Internal Revenue Code of 1086 (Public Law 99-154, 26 U.S.C. § 529) by this Commonwealth, another state, an agency or instrumentality of this Commonwealth or another state, or by one or more eligible educational institutions shall be established for a minor if the minor is entitled to receive residuals in accordance with a principal agreement or earnings are anticipated to exceed $2,500 for the production or if the minor has already earned in excess of $2,500 in prior employment in performance. A child performer trust account established in another state shall meet the requirements of this subsection.(2) All of the following govern the child performer trust account or qualified tuition program established under paragraph (1): (i) The parent or legal guardian shall establish the account for the benefit of the minor.(ii) The parent or legal guardian shall provide to the employer the information necessary to enable the employer to transfer funds into a child performer trust account or qualified tuition program. The information shall be provided on or before the start of paid employment.(iii)The employer shall transfer to the child performer trust account not less than 15% of: (A) total compensation prior to all taxes, deductions and commissions payable to the minor or the minor's parent or guardian under contract; or(B) in the case of payment to a third party, total compensation paid to the third party for the minor's services.(iv) In the case of employment for 30 days or less, the employer shall transfer the required amount to the child performer trust account or qualified tuition program within 30 days of the final day of employment. Such transfer shall be made in accordance with 20 Pa.C.S. Ch. 53 (relating to Pennsylvania Uniform Transfers to Minors Act).(v) In the case of employment for longer than 30 days, the employer shall transfer the required amount to the child performer trust account or qualified tuition program every payroll period. Such transfer shall be made in accordance with 20 Pa.C.S. Ch 53.(vi) If the minor's employer has not been notified within 15 days of commencement of employment of the existence of a child performer trust account or a qualified tuition program or no such child performer trust account or tuition program has been established by the minor's parent or guardian, then the minor's employer shall transfer such moneys together with the minor's name and last known address to the State Treasurer for placement into a child performer trust account for the benefit of the minor.(vii) Once the transfers have been made to the child performer trust account, tuition program or the State Treasurer's office, the employer has no further duty under this subsection.(viii) The employer's obligations under this subsection shall terminate when the minor reaches 18 years of age.(ix) There shall be no obligations under this subsection where a minor is emancipated.(x) The minor's parent or legal guardian may serve as custodian. If the child performer trust account reaches at least $150,000 or a higher amount set by the department through regulation, a trust company or independent custodian shall be appointed.(xi) Proceeds of the child performer trust account shall remain in trust until the minor reaches at least 18 years of age. Proceeds may be distributed to the minor before 18 years of age only for the minor's legitimate health and educational needs. Proceeds may remain in trust for distribution to the minor after 18 years of age if the parent or guardian determines that it would serve the health, education and financial interests of the minor.(f) Education.-- (1) An employer employing, either directly or indirectly through a third person, a minor who is guaranteed three or more consecutive days of employment shall provide a teacher or properly qualified private tutor as set forth in the act of March 10, 1949 (P.L.30, No.14), known as the Public School Code of 1949, who has an instructional certificate issued by the Department of Education, or a teacher with a comparable certificate in the state in which the minor resides. This requirement shall apply beginning on the first day that the minor renders services for that employer and shall continue on each day thereafter that the school of the minor's place of residence is in session and the minor is rendering services. The requirements of this section shall only be applicable when school is in session and the minor is not receiving educational instruction at the minor's school of enrollment due to his employment.(2) In the event the minor is not guaranteed three or more consecutive days of employment, an employer shall provide a teacher or properly qualified private tutor as set forth in the Public School Code of 1949 who has an instructional certificate issued by the Department of Education, or a teacher with a comparable certificate in the state in which the minor resides on the third day of missed educational instruction through the remainder of the minor's employment on the production.(3) If there is a hiatus in a production that employs a minor under this section, a teacher or properly qualified private tutor shall be provided to the minor during the hiatus for periods when school is in session, pursuant to the requirements described in this section, unless the minor is able to attend his school of enrollment.(4) Where this section requires that an employer provide a teacher or properly qualified private tutor to a minor, the employer shall provide a ratio of at least one teacher or properly qualified private tutor for every ten minors unless the minors are within two grade levels, in which case the employer shall provide a ratio of at least one teacher or properly qualified private tutor for every 20 minors.(5) School districts shall have the authority, in cooperation with the parent or guardian of the minor, to develop alternative methods by which minors may satisfy their educational requirements at times outside the normal school day. Alternative methods under this paragraph shall be no more restrictive than those set forth in this section.(g)Waiver.--The department may waive one or more restrictions contained in this section, including, but not limited to, subsection (b)(4)(iii), (iv) and (v), if the department determines the waiver is necessary to preserve the artistic integrity of the performance, will not impair the educational instruction, health or safety of the minor and written permission is obtained from the minor's parent or guardian. The waiver request shall be submitted in writing at least 48 hours in advance of the time needed for the waiver and the department shall approve or reject the waiver.(h) Foreign nationals.--In the case of a minor who is a foreign national temporarily in the United States and who will not be residing in this Commonwealth for more than 35 days in a calendar year, the requirements of subsections (e) and (f) shall not be applicable provided the employer certifies that the minor has satisfied the educational requirements of the minor's country of citizenship or is being offered access to age-appropriate educational instruction and that the minor's earnings are being paid to the minor or a third party in a manner that ensures conservation of the minor's earnings.(i) Conflict.--Nothing in this section shall be construed to supersede or repeal:(1) any provision of this act, unless an entertainment permit is issued in accordance with this section; or(2)18 Pa.C.S. § 5903 (relating to obscene and other sexual materials and performances) or 6312 (relating to sexual abuse of children)(3) Any collective bargaining agreement or any contract that establishes more stringent requirements than those in this act.(j) Revocation of permit.--The following shall apply:(1) The department may revoke an entertainment permit if:(i) there has been a violation of this act related to the employment of the minor in the performance;(ii) the permit application contained false, misleading or substantially incorrect information or the applicant or minor is no longer performing in accordance with the information provided on the application;(iii) a condition of issuance of the permit is not being met; or(iv) there is danger to the minor's health, safety or welfare.(2) The department may revoke a permit under this section without a prior hearing. Revocation may be appealed to the secretary, who shall conduct a hearing subject to 2 Pa.C.S. Chs. 5 Subch. A (relating to practice and procedure of Commonwealth agencies) and 7 Subch. A (relating to judicial review of Commonwealth agency action). The revocation shall remain in effect until the secretary issues a decision.(k) Special entertainment permits.--The department may issue entertainment permits required by this section to minors who participate in professional acrobatic performances, irrespective of the limitation in subsection (b)(4)(iv) if the following criteria are met: (1) The performance is part of a nationally recognized or internationally recognized circus.(2) Appropriate trained medical personnel are onsite at all performance times.(3)The minor has a physician's statement of health issued within the previous 12 months.(4) The employer makes a professional teacher available to all minor performers.(5) The performances do not involve high-wire or trapeze acts.(l) Applicability.--This section does not apply to a minor who: (1) is a high school graduate; or(2) is exempt from compulsory school attendance requirements under section 1330(1) of the Public School Code of 1949.Added by P.L. 1209 2012 No. 151, § 5, eff. 1/22/2013.