Loyola University Chicago School of Law, JD 2023
The Fair Labor Standards Act (“the Act”), enacted in 1938, protects public and private employees with a federal minimum wage, requirements for overtime pay, and youth employment standards. Despite protections established for children under the Act, children in the entertainment industry are expressly excluded from its protections. Instead, minors in the entertainment industry must rely on state regulation of their employment, which is often stricter and more protective than the Act. However, there is a massive loophole in that the entertainment industry in most states does not include child influencers and social media stars. With the increase in social media in the last decade, children in the social media sector are left in limbo about their rights and employment protections. State entertainment laws for minors must be extended to include the fast-growing number of children growing up in social media fame.
Current child entertainment protection laws
Due to the exemption mentioned above, protections for minors in the entertainment industry are often left to a state’s department of labor, which oftentimes encompass more protections for minors in the industry. A good example of this is California, one of the largest entertainment industry centers, which passed 8 CCR § 11760, a list of regulations and requirements that employers must follow when employing a child in the entertainment industry. For example, the child must obtain a work permit from the California Division of Labor Standards Enforcement before working. In addition, depending on the child’s age, there are a limited number of hours they are allowed to be on set, and at least twelve hours must pass from the time the child is dismissed from set to the time they are allowed to be back on set. Schooling must also be provided on set if the minor’s regular school starts less than twelve hours after dismissal.
To protect children’s earnings, California passed the Coogan law in 1939. The law was passed after Jackie Coogan, a child actor, grew up and realized his parents had spent all of his money. The law requires parents to set up a bank account for their child actors where a portion of their earnings will be deposited and accessed only when the child comes of age. Today, Coogan accounts are required by law in California, Illinois, New York, Louisiana, and New Mexico. But, again, the law is only required for child actors and excludes an up-and-coming generation of social media child stars.
The lack of protection for children in the social media sector
The highest-paid YouTube star of 2020 was nine-year-old Ryan Kaji. Ryan made 29.5 million dollars from June 2019 to June 2020 and had 47.1 million subscribers. Yet, despite his high earnings and popularity, no laws exist to protect Ryan from being overworked, exploited, or robbed of his money. In 2018, lawmakers in California attempted to include social media child stars in the current definition of child entertainment employment. Unfortunately, the law that eventually passed was not what lawmakers envisioned when they proposed the bill. It exempted child social media stars from required work permits if their performance is unpaid and shorter than an hour. As a result, children are still not entitled to protections in the social media realm regarding their labor and wages.
Child social media stars do not have legal protections, regulations, or barriers to advocate for their work hours, conditions, or pay. There is no assurance that the money will go to them in the future. Their work bleeds into their everyday life as they are followed by a camera or phone, earning the owner of the account money at the child’s expense. Since YouTube does not allow children under 13 to have an account, child influencers like Ryan must make money and appear under their parent’s account, which collects all the revenue from their work.
As we move into a new era of social media entertainment, our laws must catch up and protect the children on social media platforms. States that protect child entertainment stars should expand their definition to include social media stars. Social media has grown tremendously in the last decade and shows no signs of slowing down. As more children are exposed to the platform by their parents, recorded and delivered to millions for their entertainment, and bring in revenue for their families, laws should aim to protect them and their interests.