Bill Text: NY A09762 | 2021-2022 | General Assembly | Amended
Bill Title: Provides for the registration and duties of model management companies and creative management companies; provides complaint procedures and penalties for violations.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2022-05-25 - print number 9762a [A09762 Detail]
Download: New_York-2021-A09762-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 9762--A IN ASSEMBLY March 28, 2022 ___________ Introduced by M. of A. REYES, KELLES -- read once and referred to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the labor law, in relation to enacting the New York state fashion workers act The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The labor law is amended by adding a new article 34 to read 2 as follows: 3 ARTICLE 34 4 NEW YORK STATE FASHION WORKERS ACT 5 Section 958. Short title. 6 959. Definitions. 7 960. Registration required. 8 961. Registration process. 9 962. Duties of model management companies and creative manage- 10 ment companies. 11 963. Prohibitions on model management companies and creative 12 management companies. 13 964. Duties of clients. 14 965. Prohibitions on clients. 15 966. Violations, penalties and procedures. 16 § 958. Short title. This article shall be known and may be cited as 17 the "New York State Fashion Workers Act". 18 § 959. Definitions. As used in this article: 19 1. "Client" means a retail store, a manufacturer, a clothing designer, 20 an advertising agency, a photographer, a publishing company or any other 21 such person or entity that receives modeling services from a model or 22 other services related to the provision of modeling services from a 23 creative, directly or through intermediaries. 24 2. "Model" means an individual, regardless of the individual's status 25 as an independent contractor or employee, who performs modeling services 26 for a client or consents in writing to the transfer of their legal right 27 to the use of their name, portrait, picture or image, for advertising EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD14365-09-2A. 9762--A 2 1 purposes or for the purposes of trade, directly to a client or who 2 provides showroom, parts, or fit modeling services. The term "model" 3 shall include influencers, performing artists and other persons who 4 perform modeling services. 5 3. "Modeling management company" means any person or entity, other 6 than a person or entity licensed as an employment agency under article 7 eleven of the general business law, that: 8 (a) is in the business of managing models participating in enter- 9 tainments, exhibitions or performances; 10 (b) procures or attempts to procure, for a fee, employment or engage- 11 ments for persons seeking employment or engagements as models; or 12 (c) renders vocational guidance or counselling services to models for 13 a fee. 14 4. "Modeling services" means the appearance by a model in photographic 15 sessions or the engagement of a model in live runway, live, filmed, or 16 taped performances, including on social media platforms, requiring the 17 model to pose, provide an example or standard of artistic expression or 18 to be a representation to show the construction or appearance of some 19 thing or place for purposes of display or advertising, including the 20 provisions of castings, fittings, photoshoots, showroom, parts or fit 21 modeling services. 22 5. "Creatives" are all individuals who perform various tasks or 23 services directly related to the provision of "modeling services" by 24 "models," including but not limited to, photographers, stylists, casting 25 directors, make-up artists, hairdressers, and other vendors or persons 26 performing non-modeling creative work supporting the provision of 27 "modeling services." 28 6. "Creative management company" means a person or entity, other than 29 a person or entity licensed as an employment agency under article eleven 30 of the general business law, that: 31 (a) is in the business of managing creatives participating in enter- 32 tainments, exhibitions or performances; 33 (b) procures or attempts to procure, for a fee, employment or engage- 34 ments for persons seeking employment or engagements directly related to 35 the provision of "modeling services" by "models"; or 36 (c) renders vocational guidance or counseling services to creatives 37 for a fee. 38 7. "Exclusive representation" means an agreement, or a clause 39 contained in an agreement, which is entered into between a "modeling 40 management company" and a "model" or a "creative management company" and 41 a "creative" which restricts such model or creative from performing work 42 for another party not subject to such agreement for a specified period 43 of time or in a specified geographical area, that is similar to such 44 model or creative's work for the model management company or creative 45 management company. 46 8. "Department" means the department of labor and "commissioner" means 47 the commissioner of labor, except that a city with a population of one 48 million or more may, by local law, designate a city agency to enforce 49 the provisions of this article within the jurisdiction of such city, in 50 which case "department" shall refer to the agency designated by such 51 local law and "commissioner" shall refer to the head of such agency. 52 9. "Deal memo" means a thorough description in writing of the employ- 53 ment, engagement, entertainment, exhibition, or performance, including 54 but not limited to the scope of work, rate of pay, usages, incurred 55 expenses, and expectations of the model or creative.A. 9762--A 3 1 § 960. Registration required. A model management company or creative 2 management company shall not engage in business from offices in this 3 state or enter into any arrangement with a person for the purpose of 4 providing model management company or creative management company 5 services to persons in this state unless the management company is 6 registered under this article. No person shall use the name or title 7 "modeling agency", "model management company", "creative agency", "crea- 8 tive management company", or otherwise represent that it is registered 9 under this article unless the entity or person is registered under this 10 article. A model management company or creative management company that 11 does not comply with the provisions of this article shall not be a 12 registered model management company or creative management company in 13 this state. 14 § 961. Registration process. 1. Except as otherwise provided in this 15 section, each model management company or creative management company 16 required to be registered under this article shall provide the depart- 17 ment with information required by the department on forms that the 18 department specifies. At a minimum, model management companies and crea- 19 tive management companies shall provide the following information: 20 (a) all names under which it conducts business; 21 (b) the address of the principal place of business of the model 22 management company or creative management company and the address of 23 each office it maintains in New York state; 24 (c) the model management company's or creative management company's 25 taxpayer or employer identification number; 26 (d) a list by jurisdiction of each name under which the model manage- 27 ment company or creative management company has operated in the preced- 28 ing five years, including any alternative names, names of predecessors 29 and, if known, successor business entities; and 30 (e) in the event the model management company or creative management 31 company or the ultimate parent of a model management group or creative 32 management company group is a privately or closely held company, the 33 model management company or creative management company or model manage- 34 ment group or creative management group shall file a list of all persons 35 or entities that beneficially own a five percent or greater interest in 36 the model management company or creative management company at the time 37 of application and a list of persons who formerly beneficially owned a 38 five percent or greater interest in the model management company or 39 creative management company or its predecessors in the preceding five 40 years. In the event the model management company or creative management 41 company or the ultimate parent of a modeling agency group is a publicly 42 traded company, the model management company or creative management 43 company or model management group or creative management group shall 44 file a list of all persons or entities that beneficially own a fifty 45 percent or greater interest in the model management company or creative 46 management company or the ultimate parent of the model management group 47 or creative management group at the time of application. 48 2. Each model management company or creative management company oper- 49 ating within this state shall complete its initial registration within 50 one year after the effective date of this article. 51 3. Within one year of the initial registration or any renewal regis- 52 tration, each registrant shall renew its registration by notifying the 53 department of any changes in the information previously provided pursu- 54 ant to this section. 55 4. Upon application for registration, a model management company or 56 creative management company or model management group or creativeA. 9762--A 4 1 management group with more than five employees that either work from a 2 location in this state or perform work relating to models or creatives 3 in this state shall deposit with the department a surety bond in the sum 4 of fifty thousand dollars. 5 5. Two or more model management companies or creative management 6 companies that are majority owned by the same ultimate parent, entity or 7 persons may be registered as a model management group or creative 8 management group. A model management group or creative management group 9 may satisfy any reporting and financial requirements of this article on 10 a consolidated basis. As a condition of registration as a model manage- 11 ment group or creative management group, each company that is a member 12 of the group shall guarantee payment of all financial obligations of 13 each other member. 14 6. A model management company or creative management company shall be 15 exempt from the registration requirements specified in this section if 16 such model management company or creative management company: 17 (a) submits a properly executed request for registration and exemption 18 on a form provided by the department; 19 (b) is domiciled outside this state and is licensed or registered as a 20 model management company or creative management company in another state 21 that has the same or greater requirements as this article; and 22 (c) does not maintain an office in this state or solicit in any manner 23 clients located or domiciled within this state. 24 7. The registration and exemption of a model management company or 25 creative management company under subdivision six of this section shall 26 be valid for one year. 27 8. The department shall maintain a list of model management companies 28 and creative management companies registered under this article and 29 shall issue a certificate of registration to each model management 30 company or creative management company duly registered. 31 9. The department may prescribe forms necessary to promote the effi- 32 cient administration of this section. 33 § 962. Duties of model management companies and creative management 34 companies. A model management company or creative management company 35 shall: 36 1. have a fiduciary duty to any model or creative the model management 37 company or creative management company manages, procures or attempts to 38 procure employment or engagement for, or renders vocational guidance or 39 counselling services to; 40 2. conduct reasonable inquiries into clients, employment, engagements, 41 entertainments, exhibitions and performances to ensure the health, safe- 42 ty and welfare of models and creatives; 43 3. use all reasonable efforts to procure employment or engagements for 44 models and creatives signed to the model management company or creative 45 management company; 46 4. refrain from enforcing a requirement of exclusive representation 47 should the model or creative not have been provided a job opportunity 48 booked or contracted by a client through the management company to 49 provide modeling services or creative services for a fee in the previous 50 one hundred twenty days; 51 5. ensure that any employment, engagement, entertainment, exhibition 52 or performance which requires nudity or other sexually explicit material 53 shall comply with the requirements of subdivision three of section 54 fifty-two-c of the civil rights law, as added by chapter three hundred 55 four of the laws of two thousand twenty;A. 9762--A 5 1 6. provide models and creatives with access to and copies, which may 2 consist of digital copies, of all contracts and agreements the model 3 management company or creative management company has entered into with 4 a client involving rate of pay and scope of work, provide plain language 5 summaries of the rate of pay and scope of work involved with such 6 contracts and agreements, and disclose any relationship, contractual or 7 otherwise, that may exist between the model management company or crea- 8 tive management company and the client other than the agreement relating 9 specifically to modeling services or creative services; 10 7. if receiving any payment of funds on behalf of a model or creative, 11 immediately deposit the funds in a client trust account and disburse 12 such funds, less the model management company or creative management 13 company's commission, within thirty days of receipt, within no more than 14 forty-five days from the date the modeling services or creative services 15 were completed except when the funds are the subject of an action, 16 proceeding or controversy before a court or other governmental body, in 17 which case such funds shall remain in the client trust account; 18 8. in the case of a dispute with a client regarding late or non-pay- 19 ment of modeling services or creative services rendered, the management 20 company shall pay the model or creative and then keep the payment from 21 the client when the dispute is resolved; 22 9. notify former models and creatives in writing, including email, if 23 the management company collects royalties due to a model whom the 24 management company no longer represents; 25 10. post a physical copy of the model management company or creative 26 management company's certificate of registration in a conspicuous place 27 in the office of the model management company or creative management 28 company and a digital copy on the model management company or creative 29 management company website; 30 11. include, in clear and legible type, the registration number of the 31 model management company or creative management company in any adver- 32 tisement, including social media profiles for the management company, 33 for the purpose of the solicitation of models or creatives for the model 34 management company or creative management company and in any contract 35 with a model, creative, or client; 36 12. submit to the department a form or forms of contract to be 37 utilized by such model management company or creative management company 38 in entering into written contracts with models or creatives for the 39 employment or engagement of the services of such model management compa- 40 ny or creative management company by such models or creatives, and 41 secure the approval of the department thereof, provided the department 42 shall not withhold approval unless such proposed form of contract is 43 unfair, unjust and oppressive to the model or creative; and 44 13. provide all representation agreements and contracts and/or deal 45 memos pertaining to the model or creative, or ensure that these docu- 46 ments have been provided, in a language the model or creative suffi- 47 ciently understands. 48 § 963. Prohibitions on model management companies and creative manage- 49 ment companies. A model management company or creative management compa- 50 ny shall not: 51 1. require or collect any fee or deposit from a model or creative upon 52 the signing of, or as a condition to entering into, any contract or 53 agreement between the model management company or creative management 54 company and the model or creative; 55 2. charge more than the daily fair market rate for accommodation for 56 the model or creative;A. 9762--A 6 1 3. deduct or offset from a model or creative's payment or compensation 2 any fee or expense other than the agreed upon commission. Such prohibit- 3 ed fees and expenses include but are not limited to website fees, travel 4 fees, accommodation fees, and delivery fees; 5 4. advance the cost of travel except on a case-by-case basis without 6 interest if the model or creative is informed of the cost and consents 7 in writing; 8 5. advance visa-related costs as a visa employer-sponsor if the appli- 9 cable federal regulations and statutes governing the visa category under 10 which the model or creative entered the United States for the purposes 11 of engaging in modeling services or creative services requires that the 12 management company cover all of those visa-related costs and fees; 13 6. require a model or creative to sign a model management company or 14 creative management company contract that contains either a term greater 15 than three years or a term allowing the model management company or 16 creative management company to renew the contract without the model or 17 creative's affirmative consent; 18 7. impose a commission fee greater than twenty percent of the model or 19 creative's payment or compensation; 20 8. take any retaliatory action against any model or creative who files 21 or attempts to file a complaint pursuant to this article or declines or 22 discontinues participation in any casting or booking on account of 23 reasonable, good faith concerns regarding an actual or potential 24 violation of this article; or 25 9. engage in discrimination or harassment of any kind against a model 26 or creative based on any legally protected categories as prohibited by 27 title VII of the federal Civil Rights Act of 1964, as amended, article 28 fifteen of the executive law, or any applicable local human rights laws 29 and regulations. 30 § 964. Duties of clients. A client shall: 31 1. provide fees, payment, reimbursements for expenses and compensation 32 due to a model or creative, including compensation required by subdivi- 33 sion two of this section, within thirty days of the end of any employ- 34 ment, engagement, entertainment, exhibition or performance; 35 2. compensate models and creatives at an hourly rate at least fifty 36 percent higher than the contracted hourly rate for any employment, 37 engagement, entertainment, exhibition or performance that exceeds eight 38 hours in any twenty-four hour period; 39 3. provide at least one thirty-minute meal break for any employment, 40 engagement, entertainment, exhibition or performance that exceeds eight 41 hours in any twenty-four hour period; 42 4. conduct reasonable inquiries into employment, engagements, enter- 43 tainments, exhibitions and performances to ensure the health, safety and 44 welfare of models and creatives; 45 5. ensure that any employment, engagement, entertainment, exhibition 46 or performance which requires nudity or other sexually explicit material 47 shall comply with the requirements of subdivision three of section 48 fifty-two-c of the civil rights law, as added by chapter three hundred 49 four of the laws of two thousand twenty; 50 6. allow the model or creative to be accompanied by their agent, 51 manager, chaperone, or other representative to any employment, engage- 52 ment, entertainment, exhibition or performance; and 53 7. provide adequate levels of liability insurance to cover and safe- 54 guard the health and safety of models and creatives. 55 § 965. Prohibitions on clients. A client shall not engage in discrimi- 56 nation or harassment of any kind against a model or creative based onA. 9762--A 7 1 any legally protected categories as prohibited by title VII of the 2 federal Civil Rights Act of 1964, as amended, article fifteen of the 3 executive law, or any applicable local human rights laws and regu- 4 lations. 5 § 966. Violations, penalties and procedures. 1. Any model management 6 company or creative management company or person purporting to be a 7 model management company or creative management company who has failed 8 to comply with the registration requirements of section nine hundred 9 sixty of this article shall be deemed to have violated this article. 10 2. Any model management company or creative management company or 11 person purporting to be a model management company or creative manage- 12 ment company who has failed to comply within the time specified by law 13 with an order issued by the commissioner to comply with the registration 14 requirements of section nine hundred sixty of this article shall be 15 deemed to have violated this article. 16 3. Any client who enters into an agreement with a model management 17 company or creative management company or person purporting to be a 18 model management company or creative management company, who is required 19 to register, but whom the client knows or should have known has failed 20 to register, failed to renew its registration or had its registration 21 revoked by the commissioner shall be deemed to have violated this arti- 22 cle. 23 4. (a) The commissioner may impose a civil penalty upon a model 24 management company or creative management company, a person purporting 25 to be a model management company or creative management company, and all 26 persons or entities that own a five percent or greater interest in the 27 model management company or creative management company, that have been 28 deemed to have violated this article, for no more than three thousand 29 dollars for the initial violation, and for no more than five thousand 30 dollars for a second or subsequent violation. 31 (b) The commissioner may impose a civil penalty upon any client 32 described in subdivision three of this section that has been deemed to 33 have violated this article, for no more than three thousand dollars for 34 the initial violation, and for no more than five thousand dollars for a 35 second or subsequent violation. 36 (c) The order imposing such civil penalty may be served personally or 37 by certified mail at the last known mailing address of the person being 38 served. Such order shall be in writing and shall describe the nature of 39 the violation, including reference to the provisions of subdivisions 40 one, two and three of this section alleged to have been violated. 41 5. An order issued under this section shall be final and not subject 42 to review by any court or agency unless review is had pursuant to 43 section one hundred one of this chapter. Provided that no proceeding for 44 administrative or judicial review as provided in this chapter shall then 45 be pending and the time for initiation of such proceeding shall have 46 expired, the commissioner may file with the county clerk of the county 47 where the person against whom the penalty has been imposed has a place 48 of business the order of the commissioner or the decision of the indus- 49 trial board of appeals containing the amount of the civil penalty. The 50 filing of such order or decision shall have the full force and effect of 51 a judgment duly docketed in the office of such clerk. The order or deci- 52 sion may be enforced by and in the name of the commissioner in the same 53 manner, and with like effect, as that prescribed by the civil practice 54 law and rules for the enforcement of a money judgment. 55 6. If any model management company or creative management company or 56 person purporting to be a model management company or creative manage-A. 9762--A 8 1 ment company shall have failed to comply within twenty days of an order 2 by the commissioner to register or renew registration, the commissioner 3 may seek to enjoin such unlawful activity, pursuant to the civil prac- 4 tice law and rules. 5 7. The intentional failure of a model management company or creative 6 management company or person purporting to be a model management company 7 or creative management company to comply with the registration require- 8 ments of section nine hundred sixty of this article shall be a class B 9 misdemeanor. The officers and agents of a model management company or 10 creative management company or person purporting to be a model manage- 11 ment company or creative management company who knowingly permit such 12 model management company or creative management company to violate the 13 registration requirements of section nine hundred sixty of this article 14 shall be guilty of a class B misdemeanor. 15 8. A model or creative may bring and maintain an action in a court of 16 competent jurisdiction to enforce the provisions of this article. A 17 model management company or creative management company, person purport- 18 ing to be a model management company or creative management company, or 19 client that violates this article shall be liable for actual damages to 20 any model or creative that has suffered damages due to such violation, 21 and the court may, in its discretion, award punitive damages. 22 9. The attorney general may bring and maintain an action in a court of 23 competent jurisdiction to enforce the provisions of this article when 24 the attorney general has determined there is reasonable cause to believe 25 that a model management company or creative management company, person 26 purporting to be a model management company or creative management 27 company, or client has engaged in a consistent pattern or practice of 28 violating this article. 29 10. (a) A model or creative who is aggrieved by a violation of this 30 article may file a complaint with the commissioner within two years 31 after the acts alleged to have violated this article occurred. The 32 commissioner shall prescribe the form of the complaint, which shall 33 include, at a minimum: 34 (i) the name and mailing address of the model or creative and of the 35 person or entity alleged to have violated this article; 36 (ii) a statement detailing the terms of the model or creative's 37 contract, including a copy of such contract if available; 38 (iii) the model or creative's occupation; 39 (iv) a statement detailing the alleged violations of this article; and 40 (v) a signed affirmation that all facts alleged in the complaint are 41 true. 42 (b) (i) Within twenty days of receiving a complaint alleging a 43 violation of this article, the commissioner shall send the person or 44 entity named in the complaint a written notice of complaint. The 45 commissioner shall send such notice by certified mail and shall bear the 46 cost of sending such notice. 47 (ii) The notice required by this paragraph shall: 48 (1) inform the person or entity named in the complaint that a 49 complaint has been filed alleging violations of this article; 50 (2) detail the remedies available to a model or creative for 51 violations of said article by the person or entity named in the 52 complaint; 53 (3) include a copy of the complaint; and 54 (4) inform the person or entity named in the complaint that failure to 55 respond to the complaint will create a rebuttable presumption in anyA. 9762--A 9 1 civil action commenced pursuant to this article that such person or 2 entity committed the violations alleged in the complaint. 3 (c) Within twenty days of receiving the notice of complaint, the 4 person or entity identified in the complaint shall send the commissioner 5 one of the following: 6 (i) a written statement that the model or creative has been paid in 7 full and proof of such payment; or 8 (ii) a written statement that the model or creative has not been paid 9 in full and the reasons for the failure to provide such payment. 10 (d) (i) Within twenty days of receiving the written response, the 11 commissioner shall send the model or creative a copy of: 12 (1) the response; 13 (2) any enclosures submitted to the commissioner with the response; 14 (3) materials informing the model or creative that the model or crea- 15 tive may bring an action in a court of competent jurisdiction; and 16 (4) any other information about the status of the complaint. 17 (ii) If the commissioner receives no response from the person or enti- 18 ty alleged to have violated this article to the notice of complaint 19 within the time provided by this subdivision, the commissioner shall 20 mail a notice of non-response to both the model or creative and the 21 person or entity named in the complaint by regular mail and shall 22 include with such notice proof that the commissioner previously mailed 23 the notice of complaint to the person or entity named in the complaint 24 by certified mail. Upon satisfying the requirements of this paragraph, 25 the commissioner may close the case. 26 § 2. This act shall take effect on the ninetieth day after it shall 27 have become a law. Effective immediately, the addition, amendment and/or 28 repeal of any rule or regulation necessary for the implementation of 29 this act on its effective date are authorized to be made and completed 30 on or before such effective date.