Relates to establishing unlawful discriminatory practices relating to models; requires models to be informed of what constitutes an unlawful discriminatory practice and how to file a complaint; requires modeling entities to provide adult models with educational materials regarding nutrition and eating disorders.
STATE OF NEW YORK
________________________________________________________________________
4029
2023-2024 Regular Sessions
IN SENATE
February 2, 2023
___________
Introduced by Sen. SCARCELLA-SPANTON -- read twice and ordered printed,
and when printed to be committed to the Committee on Investigations
and Government Operations
AN ACT to amend the executive law and the labor law, in relation to
establishing certain practices relating to models
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The executive law is amended by adding a new section 296-e
2 to read as follows:
3 § 296-e. Unlawful discriminatory practices relating to models. 1. As
4 used in this section, the following terms shall have the following mean-
5 ings:
6 a. "client" means a retail store, a manufacturer, a clothing designer,
7 an advertising agency, a photographer, a publishing company or any other
8 such person or entity that receives modeling services from a model;
9 b. "hiring party" means any person or entity who exercises any form of
10 control over a model's services, including modeling entities, brands,
11 and other clients, other than (1) the United States government, (2) the
12 state of New York, including any office, department, agency, authority
13 or other body of the state including the legislature and the judiciary,
14 (3) a city government, including any office, department, agency or other
15 body of that city, (4) any other local government, municipality or coun-
16 ty or (5) any foreign government.
17 c. "model" means an individual, regardless of his or her status as an
18 independent contractor or employee, who performs modeling services for a
19 client or consents in writing to the transfer of his or her legal right
20 to the use of his or her name, portrait, picture or image, for advertis-
21 ing purposes or for the purposes of trade, directly to a client or who
22 provides showroom or fit modeling services;
23 d. "modeling entity" means a modeling agency, model management compa-
24 ny, employment agency, and/or any person or entity that: (1) is in the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04925-01-3
S. 4029 2
1 business of managing entertainments, exhibitions or performances, or the
2 models, artists or attractions constituting the same; (2) who, for a
3 fee, procures or attempts to procure: (i) employment or engagements for
4 persons seeking employment or engagements, or (ii) employees or inde-
5 pendent contractors for employers or entities seeking the services of
6 employees or independent contractors; and/or (3) renders vocational
7 guidance or counselling services to models; and
8 e. "modeling services" means the appearance by a model in photographic
9 sessions or the engagement of a model in runway, live, filmed, or taped
10 performances requiring him or her to pose, provide an example or stand-
11 ard of artistic expression or to be a representation to show the
12 construction or appearance of some thing or place for purposes of
13 display or advertising. Modeling services shall also include the
14 provisions of showroom or fit modeling services.
15 2. It shall be an unlawful discriminatory practice for a hiring party
16 to:
17 a. engage in unwelcome sexual advances, requests for sexual favors, or
18 other verbal or physical conduct of a sexual nature to a model when:
19 (1) submission to such conduct is made either explicitly or implicitly
20 a term or condition of a model's provision of modeling services;
21 (2) submission to or rejection of such conduct by a model is used
22 either explicitly or implicitly as the basis for decisions concerning
23 the individual's provision of modeling services; or
24 (3) such conduct has the purpose or effect of unreasonably interfering
25 with a model's provision of modeling services by creating an intimidat-
26 ing, hostile, or offensive environment; or
27 b. subject a model to harassment based on age, race, creed, color,
28 national origin, sexual orientation, military status, sex, disability,
29 predisposing genetic characteristics, familial status, marital status,
30 or domestic violence victim status, where such harassment has the
31 purpose or effect of unreasonably interfering with an individual's
32 provision of modeling services by creating an intimidating, hostile, or
33 offensive environment; or
34 c. threaten, intimidate, discipline, harass, deny a work opportunity
35 to or discriminate against a model, or take any other action that penal-
36 izes a model for, or is reasonably likely to deter a model from, exer-
37 cising or attempting to exercise any right guaranteed under this arti-
38 cle, or from obtaining future work opportunity because the model has
39 done so.
40 3. a. Each client and modeling entity shall post, in a conspicuous
41 place at their place of business and/or at the site of each job assign-
42 ment, notices to the models hired, to be prepared or approved by the
43 division, setting forth excerpts from, or summaries of, the pertinent
44 provisions of this section and information related to filing a complaint
45 under this article including pro bono and/or legal services contact
46 information.
47 b. Each client shall provide to each model providing modeling
48 services, in writing or electronically, the names and/or offices, and a
49 reliable means of contacting such individuals or offices, to whom a
50 complaint under this article may be made.
51 c. At the initial execution of the contract between the modeling enti-
52 ty and the model, the model shall be informed in writing of the
53 provisions of this article including the procedure for filing a
54 complaint. The model shall demonstrate his or her understanding of the
55 provisions of this article and that such information has been provided
S. 4029 3
1 to him or her by signing a form, to be prepared or approved by the divi-
2 sion, to that effect.
3 4. a. Each modeling entity or client shall implement a system or
4 procedure for receiving complaints under this section and section two
5 hundred ninety-six-d of this article. Such procedures shall provide a
6 written or electronic receipt to the complainant acknowledging that the
7 complaint has been received and catalogued. Registration of complaints
8 via these systems or procedures, or failure on the part of the modeling
9 entity or client to implement such system or procedure, shall be consid-
10 ered as evidence of knowledge or notice of the alleged sexual harass-
11 ment.
12 b. Modeling entities shall be considered employers and models shall be
13 considered employees for purposes of section two hundred one-g of the
14 labor law. Clients shall be considered employers for purposes of subdi-
15 vision one of section two hundred one-g of the labor law.
16 5. Modeling entities and clients may be held jointly and severally
17 liable for claims of sexual harassment brought under this section and
18 section two hundred ninety-six-d of this article.
19 6. Nothing in this section shall be construed or interpreted to limit
20 the rights of models provided under this chapter or any other provisions
21 of law.
22 § 2. Subdivision 4 of section 292 of the executive law, as amended by
23 section 2 of subpart F of part KK of chapter 57 of the laws of 2018, is
24 amended to read as follows:
25 4. The term "unlawful discriminatory practice" includes only those
26 practices specified in sections two hundred ninety-six, two hundred
27 ninety-six-a [and], two hundred ninety-six-c, and two hundred ninety-
28 six-e of this article.
29 § 3. The labor law is amended by adding a new section 202-m to read as
30 follows:
31 § 202-m. Provision of educational materials regarding nutrition and
32 eating disorders to adult models. 1. For the purposes of this section,
33 the following terms shall have the following meanings:
34 a. "adult model" means an individual over the age of eighteen, regard-
35 less of his or her status as an independent contractor or employee, who
36 performs modeling services for a client or consents in writing to the
37 transfer of his or her legal right to the use of his or her name,
38 portrait, picture or image, for advertising purposes or for the purposes
39 of trade, directly to a client or who provides showroom or fit modeling
40 services;
41 b. "client" means a retail store, a manufacturer, a clothing designer,
42 an advertising agency, a photographer, a publishing company or any other
43 such person or entity that receives modeling services from a model;
44 c. "modeling entity" means a modeling agency, model management compa-
45 ny, employment agency, and/or any person or entity that: (1) is in the
46 business of managing entertainments, exhibitions or performances, or the
47 models, artists or attractions constituting the same; (2) who, for a
48 fee, procures or attempts to procure: (i) employment or engagements for
49 persons seeking employment or engagements, or (ii) employees or inde-
50 pendent contractors for employers or entities seeking the services of
51 employees or independent contractors; and/or (3) renders vocational
52 guidance or counselling services to models; and
53 d. "modeling services" means the appearance by a model in photographic
54 sessions or the engagement of a model in runway, live, filmed, or taped
55 performances requiring him or her to pose, provide an example or stand-
56 ard of artistic expression or to be a representation to show the
S. 4029 4
1 construction or appearance of some thing or place for purposes of
2 display or advertising. Modeling services shall also include the
3 provisions of showroom or fit modeling services.
4 2. a. A modeling entity shall make available educational materials
5 regarding nutrition and eating disorders to an adult model within ninety
6 days of the date of agreeing to representation by the modeling entity or
7 procurement by a modeling entity of an engagement, meeting, or inter-
8 view, whichever comes first.
9 b. Educational materials regarding nutrition and eating disorders
10 shall include, at a minimum, the components specified in the National
11 Institute of Health's Eating Disorders internet website or a successor
12 internet website.
13 c. Educational materials regarding nutrition and eating disorders for
14 each adult model shall be in the language understood by such adult
15 model. The modeling entity may comply with this language requirement
16 either by making the educational materials available in the adult
17 model's native language or by having the educational materials presented
18 for such adult model in the language that he or she understands.
19 d. The modeling entity shall keep a record for three years confirming
20 that it has made available educational materials regarding nutrition and
21 eating disorders to all adult models who have been signed for represen-
22 tation after the effective date of this section.
23 § 4. This act shall take effect on the ninetieth day after it shall
24 have become a law. Effective immediately, the addition, amendment
25 and/or repeal of any rule or regulation necessary for the implementation
26 of this act on its effective date are authorized to be made and
27 completed on or before such effective date.
