|Hearings Unit: Final Order
In the Matter of
dba Thumbs Up! Extra Casting, Respondent.
Case Number 33-95
Final Order of the Commissioner
Issued April 8, 1996
FINDINGS OF FACT
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
Respondent employer failed to verify the age of a minor employee, failed to file a required employment certificate within 48 hours after hiring the minor, and employed the minor more than 44 hours per week in each of 19 weeks without a special Emergency Overtime Permit. The Commissioner rejected Respondent´s claim that the minor was not an employee and imposed civil penalties. ORS 653.305; 653.307; 653.310; OAR 839-21-067; 839-21- 220(1)(a) and (3).
The above-entitled contested case came on regularly for hearing before Warner W. Gregg, designated as Hearings Referee by Jack Roberts, Commissioner of the Bureau of Labor and Industries of the State of Oregon. The hearing was held on June 8 and 9, 1995, in room 1004 State Office Building, 800 NE Oregon Street, Portland, Oregon. The Bureau of Labor and Industries (the Agency) was represented by Valerie Hodges, an employee of the Agency. LaVerne Springer (Respondent), an individual doing business as Thumbs Up! Extra Casting, was represented by counsel until June 7, 1995, when the Hearings Referee was advised by fax that counsel would not appear. Accordingly, Respondent was not represented by counsel, and personally presented evidence, cross-examined witnesses, and argued her defenses.
The Agency called as witnesses (in alphabetical order): Holly Happenstance (true name Hummer); Agency Compliance Specialist William F. Pick; Coby Porter; Rose Roberts; April Serio; Shari Smith; Stacy Sobiech; and Daniel Lee Stoltz.
Respondent called as witnesses (in alphabetical order): Virginia Briggs; Jessica Holmgren; Katrina Sanders-Payne; Kyle Sheeley; Rod James (true name Roderick J. Skibenes); Felicia Slider; Respondent; Christin Swanson (by telephone); Brian Tanke, (by telephone); Henry Taylor; and Chanda Watts. Although accorded several opportunities throughout the hearing, Respondent was unable to reach Kelly Gabbert to testify by telephone.
Having fully considered the entire record in this matter, I, Jack Roberts, Commissioner of the Bureau of Labor and Industries make the following Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions of Law, Opinion, and Order.
FINDINGS OF FACT -- PROCEDURAL
1) On December 6, 1994, the Agency issued a Notice of Intent To Assess Civil Penalties ("Notice of Intent") to Respondent. The Notice of Intent informed Respondent that the Agency intended to assess civil penalties against Respondent in the total amount of $21,000 twenty days after Respondent´s receipt of the Notice. The Notice of Intent cited the following bases for the Agency´s proposed actions:
"1. Failure to Verify Work Permit at the Time of Hire: One Violation. Employer failed to verify the age of minor Randy Stoltz (dob 9/26/77), by requiring said minor to produce a work permit at the time of hire (10/1/93), in violation of OAR 839-21-220(1)(a). CIVIL PENALTY OF $500. AGGRAVATION: Willful violation; failure by employer to take all necessary measures to prevent violations of statutes and rules; lack of difficulty to comply.
"2. Failure to File Employment Certificate: One Violation. Employer failed to file a completed employment certificate form with the Bureau of Labor and Industries within 48 hours after hiring minor Randy Stoltz (dob 9/26/77) on or about October 1, 1993, in violation of ORS 653.307, 653.310, and OAR 839-21-220(3). CIVIL PENALTY OF $500. AGGRAVATION: Willful violation; failure by employer to take all necessary measures to prevent violations of statutes and rules; lack of difficulty to comply.
"3. Employment of Minor to Work More Than 44 Hours Per Week: 20 Violations. Between October 1, 1993, and April 23, 1994, Employer employed minor Randy Stoltz (dob 9/26/77) to work more than 44 hours per week in each of 20 weeks, without a special Emergency Overtime Permit, in violation of ORS 653.305 and OAR 839-21- 067(1). Civil Penalty of $1,000 per week. AGGRAVATION: Willful violation; failure by employer to take all necessary measures to prevent violations of statutes and rules; lack of difficulty to comply; nature and seriousness of violations. TOTAL CIVIL PENALTY OF $20,000."
2) Respondent received the Notice of Intent by certified mail on December 12, 1994. Under date of December 23, 1994, Respondent personally answered the Notice of Intent as follows:
"To whom it may concern;
3) The Agency requested a hearing date. On January 11, 1995 the Hearings Unit issued a Notice of Hearing setting forth the time and place of hearing. The notice was served on Respondent together with the following: a) a Notice of Contested Case Rights and Procedures containing the information required by ORS 183.413; and b) a complete copy of Oregon Administrative Rules (OAR) 839-50-000 to 839-50-420, regarding the contested case process.
"Thumbs Up! Casting is requesting a contested case hearing.
"1. Thumbs Up! Casting denies all allegations that there was a failure to verify work permit re: Danny Stoltz (referred to as Randy Stoltz in document) He was not an employee of Thumbs Up!
"2. Thumbs Up! Casting denies allegation that we knowinly [sic] failed to file Employment certification re Danny Stoltz (re to as Randy Stoltz). He was not an employee of Thumbs Up! Casting.
"3. Thumbs Up! Casting did not hire Danny Stoltz (re: Randy Stoltz) and he did not work more than 44 hours per week. Danny Stoltz was not an employee of Thumbs Up! Casting.
"Please notify me of contested case hearing.
"Respectfully submitted "LaVerne Springer"
4) On February 1, 1995, the Forum received the Agency´s motion for postponement of the hearing from the scheduled date and counsel for Respondent had no objection to a two day delay. On February 2, 1995, the Hearings Referee granted the postponement and on March 8, 1995, the Hearings Referee granted a further postponement to June 1, 1995, based on the agreement of the participants.
5) On April 11, 1995, the Hearings Referee was changed to Warner W. Gregg and the date of the hearing was changed to June 8, 1995. Counsel for Respondent was advised of these changes.
6) On May 26, 1995, the Forum received notice of the withdrawal of Respondent´s original counsel, which contained the information that Respondent would probably handle the matter herself. On June 1, 1995, the Agency filed its Summary of the Case, a copy of which was sent to Respondent.
7) By fax on June 6, 1995, timed at 3:35 p.m., a second attorney notified the Forum that he was retained on that date to represent Respondent and was requesting a set-over of the June 8 hearing. A copy was delivered to the Hearings Referee at 8:30 a.m., June 7. Also on June 7, the Forum received the Agency´s response opposing further postponement.
8) The Agency´s opposition to further postponement recited the service and answer in December 1994, Respondent´s retention of an attorney in mid-January 1995, and continued:
"e. As of approximately 1:45 p.m. on June 6, 1995, [Respondent] indicated that she intended to come to the hearing on June 8, 1995. [Respondent] did not request a postponement at that time.
"d. Although the original hearing date was April 18, the June 8 hearing date has been set since on or before April 11, 1995. [Respondent]´s attorney received notice of this hearing date, mailed April 11.
"2. [Respondent]´s original attorney withdrew on or before May 25, 1995. [Respondent] did not get a new attorney for herself until June 6, 1995. * * *
"3. The Agency sent [Respondent] its Case Summaries on June 1, 1995. She received them. The Agency requested a list of [Respondent]s intended witnesses and exhibits (essentially a case summary) on June 6, which she agreed to provide that day. [Respondent] has produced no Case Summary and no other evidence.
"4. Postponing the hearing will cause considerable delay and some additional expense * * * "
The Agency asked that the postponement be denied.
9) On June 7, 1995, the Hearings Referee´s ruling on postponement was transmitted by fax to Respondent´s second attorney at 1:07 p.m. and read in pertinent part:
"This forum has repeatedly held that a hearing will not be delayed to allow a party to obtain counsel, or because of late retention of counsel, absent good cause for the requested delay. See OAR 839-50-150(5). Similarly, the inability to complete discovery is generally not considered a reason to delay a hearing.
"Respondent was served with the Notices of Intent in December 1994; she submitted an answer denying liability to Claimant on December 23. On January 11, the forum issued a notice setting hearing for April 18, 1995. On January 18, the forum was notified that Respondent was represented by counsel. On February 2, 1995, the Hearings Referee granted an Agency motion, consented to by counsel, to postpone the hearing to April 20. On March 8, 1995 the Hearings Referee granted an Agency motion, consented to by counsel, and again postponed the hearing to April 20. On April 11, there was a change of Hearings Referee and the undersigned reset the matter for June 8, 1995. On May 25, 1995, the Hearings Referee was advised of the resignation of Respondent´s former counsel. On June 1, Respondent was served with the Agency´s case summary. Until June 6, the Hearings Referee assumed that Respondent had determined to proceed without an attorney.
"Respondent´s motion for postponement is untimely, and does not illustrate good cause. See OAR 839-50-020(9). Respon- dent´s request for postponement is denied, except that the Hearings Referee will delay the starting time one hour. Accordingly, the hearing will proceed as scheduled in room 1004, Portland State Office Building, Portland at 10 a.m., Thursday, June 8, 1995."
10) At 1:57 p.m. on June 7, 1995, the Hearings Referee received by fax from Respondent´s counsel the following:
"I am in receipt of your Ruling on Respondent´s Request for Postponement. My client has been advised of said Ruling.
"It is impossible to properly prepare for this matter in one day. My client has advised that she will appear pro se and have the record reflect that counsel was not permitted adequate time to prepare for this hearing or conduct any discovery whatsoever and, therefore, she has not had her legally provided right to adequate counsel. I respectfully request that this letter be read into the record.
"It is my intention to have this matter heard by the Court of Appeals if any penalties are assessed against her in this hearing due to the fact that the Agency postponed this hearing on three separate occasions and when my client asked for one set-over due to the hiring of new counsel, it was denied thereby denying her the right to be represented adequately."
11) Later on June 7, Respondent filed by fax her list of potential witnesses. Also on June 7, Respondent and the Agency entered into a written stipulation allowing the Forum to proceed on the Notices in cases numbered 33-95 and 34-95 in one dual hearing, pursuant to OAR 839-22-055 and 839-50-180. The stipulation was admitted into the record at the commencement of the hearing, as was the Agency´s amended Case Summary.
12) At the commencement of the hearing, Respondent stated that she had received the Notice of Contested Case Rights and Procedures and had no questions about it.
13) At the commencement of the hearing, pursuant to ORS 183.415(7), Respondent and the Agency were orally advised by the Hearings Referee of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. The Hearings Referee read into the record as requested the letter of Respondent´s attorney partially quoted in Finding of Fact 10 above.
14) At the commencement of the hearing, the Hearings Referee allowed the Agency´s motion to amend the Agency´s Notice of Intent to reflect that the name of the minor was "Danny Stoltz," rather than "Randy Stoltz," and to amend the allegation of unlawful overtime in count 3 from 20 weeks to 19 weeks. This reduced the sought-after civil penalty to $19,000. Respondent did not object to the amendment.
15) The Proposed Order, which included an exceptions notice, was issued February 7, 1996. Exceptions, if any, were to be filed by February 27, 1996. No exceptions were received.
FINDINGS OF FACT -- THE MERITS
1) Respondent LaVerne Springer did business in Portland beginning in 1992 as "Thumbs Up! Extra Casting." In her business, Respondent kept a list of persons who had expressed interest in performing as extras in various television and motion picture productions in Oregon. Respondent generally charged an annual listing fee of $20 to persons wishing to be on her casting list. Before opening her office, Respondent had been a casting coordinator on a major production and had about 15 years of experience in entertainment production. She was trained on the east coast, starting as an unpaid intern. She was taught to "pass the torch," that is, give others the same opportunity to learn the business. She is African-American and was particularly interested in providing opportunity to other African-Americans. She denied willfully seeking to employ a minor unlawfully.
2) The film industry is labor intensive. It takes scores of people on the production end to handle location, lighting, makeup, camera, wardrobe, sound, transportation and other services as well as support for the crew, principal actors, and extras, including meals and even sanitary services. For each production there is a daily call sheet generated by the production company, which assigns the various crew. The call sheet also names the main cast members scheduled ("cast and day players"), lists the number and types of extras needed ("atmosphere and stand-ins"), lists the time of day when and where persons in each category are to report, and includes advance shooting information by scene, cast, and location. The daily call sheet was generally available for the next day only after the current day´s "shooting" (i.e., filming) was completed.
3) From the call sheet information, an office such as Respondent´s developed lists of stand-ins and atmosphere extras for the particular shooting date ("skins") by verifying the availability of and notifying and assigning persons in her files. This involved much telephone work, sometimes late in the evening.
4) Respondent´s office also received an overall schedule for the production ("one line schedule") showing the number of projected shooting days with a one line description for each scene planned for each shooting day. The shooting days and days off were numbered consecutively and by calendar date. Production companies were not always successful in adhering to this projected schedule and a project might take longer than planned.
5) Respondent contracted with production companies to find and assign persons for use in scenes to be filmed. The order, or "call," generally specified the number and types of persons needed. Respondent´s office was then responsible for matching the needed persons from the list, determining their availability and telling them where to report. This was known as "booking."
6) The accounting department of a production company distributed the vouchers, or time cards, for extras from a payroll company to an extras company. The extras company in turn was responsible for returning the properly filled out voucher and personal documentation to an assistant director so that the production company could submit them to the payroll company for the individual paychecks. Errors were returned to the extras company to be corrected or verified. The payroll company was the employer of record of extras for the purposes of taxes, etc. The extras casting company or individual was paid a daily contract fee. This could be on the basis of billed invoice or an individual functioning as an extras supplier could be paid through payroll.
7) On July 2, 1993, Agency Compliance Specialist Ursula Bessler telephoned Respondent because of an article in the Oregonian newspaper regarding Respondent´s intent to offer internships to youths on a film she planned. Respondent told Bessler that interns were usually unpaid and that she was seeking corporate sponsors to provide some sort of pay or stipend. Bessler advised Respondent that in Oregon, "people could not volunteer their services for a for-profit employer" and that such employers were required to pay employees, including "youngsters," minimum wage.
8) Respondent talked to others in the industry both before and after her July 2 conversation with Bessler and believed that she and Bessler were talking about two different things since she had become convinced that unpaid interns were a standard industry practice.
9) During times material, Daniel Lee Stoltz, born September 26, 1977, was a minor 16 years of age. On or about September 30, 1993, he answered a casting call by Respondent and worked as an extra on a film called "Single Dad."
10) Stoltz had met Respondent on a previous casting call for "Why My Daughter" and was "listed" as an extra. On September 30, he ran some errands for her. At her request, he carried snacks and water from the location service truck to the other extras. At her request, he collected vouchers from the other extras and made sure they were filled out properly in order to get each extra paid.
11) Respondent liked the way Stoltz "pitched in." He showed high energy and knew what to do. She was understaffed and the production allowed no budget for a casting assistant. She asked Stoltz to return on the following day. Either on September 30 or the next day, Respondent told him that she really liked his energy and would like him to work with her. She stated she would have him "book" people in her office and about other duties.
12) Stoltz was thrilled by what he saw as an opportunity to break into show business. He told Respondent that he would love to work with her and mentioned that he had employment at McDonald´s. At some time, Respondent spoke with Stoltz´s mother and his high school counselor. Respondent told Stoltz that she would work around his schedule and that he could come to her office that night and book people for the next day. He began working in Respondent´s office around October 1.
13) Respondent did not ask to see a work permit for Stoltz before she assigned him duties in her office, or at any time. She did not file an employer certificate within 48 hours or at any time.
14) At the office, Respondent gave Stoltz a list of people to call. At first, she made out the lists and did the choosing or picking of people to cast. Stoltz would call them and book them. Respondent wrote down what Stoltz needed to tell them, what they should bring, and where and when to report. He used Respondent´s phone, office, and facilities to accomplish these tasks.
15) In the following days on the set of the productions, Stoltz´s duties increased rapidly. Knowing that Stoltz knew how to fill out vouchers, Respondent reviewed them once more and put him in charge of vouchers. She authorized him to sign her initials. He checked the vouchers, made sure they were organized and ran from office to office. From being very specific at first, Respondent eventually gave him a general duty and he carried it out in detail.
16) About the second or third day on the job, Respondent gave Stoltz a pager and a key to her office at 333 NE Russell. After a few days, Respondent would tell Stoltz to return to the office and book a number of persons for the next day. Respondent trained Stoltz and gave him the projects. It eventually became his duty to choose and call the people and book and/or replace them.
17) On the production set, the extras "wrangler" kept the extras together and coordinated their availability for the camera.
18) "Wrangling" the extras was among Stoltz´s duties. This involved keeping the group together and quiet. He was given a walkie talkie, and when the production personnel would call for the extras, he would bring them to where they were supposed to be. Respondent left the set many times and left Stoltz in charge of the extras. Inside two months´ time, he took full responsibility for everything. He had learned to do everything in Respondent´s business except the book- keeping.
19) Stoltz worked in Respondent´s office and on the sets of various productions on Respondent´s behalf from October 1, 1993, to May 7, 1994, including "Save the Last Dance For Me," "Imaginary Crimes," "Rose City," "Under Suspicion," "Medicine Ball," and "Mr. Holland´s Opus." During that time he had no set schedule. Respondent would call him to come to the office immediately because a large number of extras were needed the next day. Perhaps that number would be increased or decreased during or after he began calling. Generally, he was at the office at 9 a.m. If he was to handle extras on the production set, he was on the set as early as 5 or 6 a.m. He described his job title as "casting assistant."
20) After Stoltz had worked with Respondent for two or three weeks he quit his job at McDonald´s and had no money. He "hinted" to Respondent that he needed minimum wage. He asked for gas money. Respondent said she would buy his lunch, which she did for about a week. On later occasions, Respondent would allow Stoltz to keep $5 of the $20 listing fees collected on a particular day, usually a big casting call day when new or renewed listings came in. He collected between $400 and $500 in this manner.
21) Stoltz was enrolled at Gladstone High School in September 1993 and tried at first to go to his duties with Respondent after school. When Respondent received another casting project ("Save the Last Dance"), she wanted him to assist her full time. He talked to his high school counseling office, telling them it was his dream to work in this business and that he needed to get out of school. The counseling office wanted a letter from Respondent to be sure it was a legitimate opportunity. Respondent supplied it.
22) Respondent´s letter was dated November 5, 1993, and stated:
"To whom it may concern;
"Danny Stoltz is currently working on the film ´Save the Last Dance´ as a production assistant (extras casting). He will be responsible for extras on set, filling out payroll vouchers, taking them to set and checking wardrobe. He will also assist in booking extras for scenes.
"Danny´s work schedule varies but he will not be working a five (5) week [sic] through Nov 21, 1993.
"Here is the schedule as we know it
"11/8, 9, 11, 12
"week of 15-19 - undetermined
" " " 22-26 - "
"Dec. shooting schedule is forthcoming avg. 3 day per week through 12/19.
"There will be a tutor on set at all times [s] LaVerne Springer
"* 2 hrs per day - set school 281-8875"
23) There was no evidence that a tutor or any sort of school was available to Stoltz during his association with Respondent.
24) There were days that the school would not excuse Stoltz for work. If Respondent called him to work, Stoltz would attempt to obtain an excuse from his mother for illness or a medical appointment so that he could continue to work on the film of the moment. Respondent had told him that if he was not available all the days he was needed, she would have to replace him with an assistant that could work all those days.
25) On two productions, "Save the Last Dance" and "Medicine Ball," Respondent attempted to get Stoltz paid by the production company. In each instance, for about a week, he received some pay either as an hourly crew employee or through vouchers as an extra. Neither production was anxious to pay him as a "casting assistant" while they were already paying Respondent for extras casting. In both instances, his duties for Respondent remained the same.
26) Stacy Sobiech "free lanced" as an assistant accountant in the local film industry at times material, working for production companies. Her duties involved payments to vendors and extras, and meal money and petty cash. She knew Stoltz worked for Respondent´s extras casting office. She dealt with both Stoltz and Respondent on "Imaginary Crimes," "Under Suspicion," and "Medicine Ball" from November through December 1993 and February through April 1994. Sobiech worked about a 12 hour day during production and extras also worked around 12 hours.
27) Because his mother suggested he was unwise not to do so, Stoltz began keeping track of the time he worked with Respondent. Beginning in early 1994, he marked his hours on a calendar in Respondent´s office. When his relationship with Respondent ended, that calendar was left in her office.
8) Respondent was involved with a production company´s employment of extras at Grant High School. They received $1.00 plus lunch. Respondent was not the employer of record. Respondent supplied a record of workers and hours when the Agency investigated, enabling the Agency to obtain wage payment to the extras from the production company. In February 1994, Respondent received a letter from Compliance Specialist Bessler thanking her for her cooperation.
9) Respondent stated she had kept a log of the projects involving Stoltz. She had no record of the time Stoltz worked. On some nights she did not know how late he had been at the office until he mentioned it the next day. She would work some nights due to the volume of work, but other nights she would leave at 9 p.m. and allow Stoltz to finish.
30) On one occasion during the production of "Medicine Ball," Stoltz asked to report late because he was exhausted and needed to sleep in. Respondent refused permission, telling him he needed to be on time. He never asked again. He was usually the first one in and Respondent came and went with no schedule of her own. He was always available to check people in and out.
31) Because of the hours spent working with Respondent, Stoltz missed many classes and had no time for homework. If Respondent paged him during the day, he would skip class or give an excuse of an emergency. His grades went down and he was unable to stay awake when he did attend class. The school counseling office called his parents and he found it stressful dealing with school and his parents. He lost friends and had little social life.
32) At the time of the hearing, Brian Tanke was production coordinator for a production, "Dead at Sunset." He had been acquainted with Respondent since 1992. He helped his wife as a production coordinator on "Single Dad" in 1993. He was aware that Stoltz was helping Respondent with "Single Dad" and was not a production company crew member. Extras were paid through a different payroll office from the regular crew.
33) At the time of the hearing, Katrina Sanders-Payne had worked in the television, movie, and entertainment industry, both on and off the screen, for 25 years. She had worked as an extra and in several capacities such as director, assistant, and coordinator in production, transportation, and extras casting. After staffing positions with the most qualified people, most departments hire interns to do the errands and legwork. These interns may be paid or unpaid, depending on the budget available. She had used interns in extras casting. Interns learn skills which are a means to break into the business. Film production companies recruit experienced, skilled people. Most interns have asked to work in that capacity. This use of interns is prevalent along the west coast. There were only a few African-Americans working in production. Interns usually do errands, office work, make and receive telephone calls, type, and help keep the extras available and supplied with food and drink. They may be students or they may be seeking a second career. They usually cover their own expenses, but may eat with the crew. They work as much as 15 to 18 hours per day during a 5 or 6 day week.
34) Shari Smith worked for Respondent about three or four weeks around October 1993. Smith described herself as an "apprentice," a job title suggested by Respondent. Smith worked in Respondent´s office, recording the listing of extras, from early morning to late in the evening, 8 to 10 p.m. or later. Respondent paid her one third of the listing fee for each person she signed. It was necessary that she remind Respondent each day of the amount she was owed. Smith also received some mileage and up to two meals per day. Smith´s ambition was in the production end of the business.
35) Stoltz was working with Respondent when Smith started. He came in after school and worked until midnight or after. Smith recalled the office as very busy and stressful, requiring long hours. Stoltz, who was not being paid, was knowledgeable and assisted Smith when Respondent was out of the office. Smith was discouraged by Respondent from discussing pay with Stoltz.
36) Smith missed an early call (5:30 a.m.), called Respondent to apologize, and left for a planned family trip. She attempted to again work with Respondent upon her return, but Respondent never returned her calls.
37) At the time of the hearing, Henry Taylor was in the craft services business, that is, he catered snacks for film crews. He was guided into that business by Respondent. He met Stoltz in Respondent´s office, where Stoltz was an intern. Respondent has had "a lot of" interns working for her; that was how they got into the business. Stoltz was good at it. Taylor understood that Stoltz had agreed with his parents that he would work to early evening and then do his homework. Taylor would find him at Respondent´s office late at night and encourage him to put school first. Stoltz worked long hours. Taylor entered Respondent´s office one morning around 5 or 6 a.m. and found Stoltz on the floor, asleep. Respondent was upset by Stoltz sleeping at the office and took back Stoltz´s office key.
38) Stoltz appeared to be a "workaholic," he loved the work and stayed in the office. Stoltz had previously attempted to rearrange the office and Respondent told him that as an intern he couldn´t do that. Taylor advised Respondent to get rid of Stoltz.
39) Stoltz did not work in Respondent´s office during several weeks in January and February 1994. He had some medical treatment. Respondent, after taking back the office keys, restored them and Stoltz´s duties. He continued to work with Respondent through May 6, 1994. After that, he was associated briefly with other extras coordinators. He was running his own casting service, "Extras Only," at the time of the hearing. He denied sending any fax transmittals about Respondent.
40) While Stoltz worked in Respondent´s office, he worked at her direction. If the production company told him it didn´t need him there, that is, that it wasn´t going to pay him, he still remained and carried out his duties for Respondent, who told him she needed him there to check the extras in and out.
41) Holly Happenstance (true name Holly Hummer) worked (under the name Hummer) as an unpaid helper for Respondent from April to September 30, 1993. She had a pending wage claim against Respondent at the time of hearing. She had sought out Respondent upon hearing that Respondent might help her into show business and accepted Respondent´s suggestion to work as an intern. She was not a minor at the time. She first knew Stoltz as an extra cast as a teenager. His age was on his listing information. Respondent mentioned that Stoltz was very eager and would be willing to do more work. On September 30, he worked as an extra and also began helping on the set carrying drinks to the other extras.
42) April Serio worked through Respondent´s office as an extra and stand-in at times material. She worked on "Save the Last Dance," "Imaginary Crimes," and "Under Suspicion" between October 1993 and for three or four months into 1994. As a stand-in, she often worked 8 to 18 hours a day, reporting as early as 5:15 to 8 a.m., depending on the finishing time for the previous day. Stoltz was present when extras worked, arriving on the set when or before they did and leaving when or after they did. This sometimes meant 16 hours or more.
43) Respondent was not concerned about competition from other extras casting companies, including Stoltz´s company, "Extras Only." Respondent treated extras kindly, asking only that they be professional at all times. Extras listed with other casting companies continued to be called by Respondent, even if not always available.
44) At times material, Rose Roberts was building manager of 333 NE Russell Street, Portland, the site of Respondent´s office. She met Stoltz in about September 1993. He worked for Respondent and sometimes called Roberts as an extra. She saw Stoltz working for Respondent when, as building manager, she locked the building in the evening or had occasion to come in late in the evenings and on weekends. She sometimes let him into the building. She discussed with Respondent and Stoltz the late hours required by large casting calls when she needed to lock the building for the evening. Stoltz once called her at 11:30 p.m. to report at 6 a.m. the next day. He was on the set at 6 a.m., and admitted to her he had worked all night. She often spoke to Stoltz about staying in school, but he seemed to think the job was more important.
45) Coby Porter, who was 17 years of age at the time of the hearing, was a close friend of Stoltz for several years and had lived with Stoltz and his family. He spent much time with Stoltz until Stoltz began spending all his time after school until late at night working for Respondent. When Stoltz had opportunity to go somewhere with Porter, he was frequently paged to the office. Porter met Respondent in her office through Stoltz. Respondent was Stoltz´s boss and Stoltz was her employee. Stoltz slept in class, appeared very tired, and had difficulty doing his schoolwork. He twice visited Porter around 11:30 p.m., upset and "stressed out," but he continued to pursue his dream, his connection with show business.
46) Porter worked one day as an extra on "Medicine Ball." He accompanied Stoltz to the set early, before the other extras arrived. Respondent was there and told them not to "hang out" together, that each was working. Porter saw little of Stoltz during that day. They were on the set until 10 p.m., then went back to Respondent´s office because Stoltz was told he had to do some work. Respondent was there. Stoltz worked until about 1:00 a.m. Toward the end of Stoltz´s association with Respondent, Porter assisted him with copying and distributing some fliers in Salem.
47) At times material, Virginia Briggs and her husband, Harry O. Briggs, were listed with Respondent, worked as extras on several projects, and were listed with other casting agents. She met Stoltz, an ambitious young man of school age who described himself as an intern, at Respondent´s office. She noted that he was answering the phone and helping Respondent.
48) At times material, Rod James (true name Roderick James Skibenes) was listed since February 1993 with Respondent and worked as an extra on seven projects. It was a good professional experience. He was aware of the use of volunteers or interns in the film industry. He met Stoltz on the set of "Dancing With Danger" ("Save the Last Dance") and knew that Stoltz worked for Respondent. He found Stoltz to be demanding, abrasive, and seemingly unhappy. Respondent told Stoltz to treat the extras courteously, without yelling. James worked with Stoltz on "Under Suspicion" and "Medicine Ball." He worked with other casting agents and was aware that Stoltz had started his own casting company.
49) At the time of the hearing, Felicia Slider worked with Respondent as an intern. She was also employed with the Oregonian newspaper. She was acquainted with Stoltz, whom she met while he worked with Respondent. She was interested in learning about the industry and Stoltz told her about what fascinating work it was. Later, on the set of "Medicine Ball," he showed her what he did as an intern. She knew that interns were unpaid. Stoltz showed her how to complete an extras voucher, and suggested that she could get paid by the production company even when she did not actually work as an extra.
50) Slider found that most work days were eight or nine hours, and was never told to work to 1:00 a.m. or later. She worked evenings on the set, and occasionally finished up at home, but never that late. Slider, Respondent, and Stoltz usually left the set together. Any work Stoltz did beyond that was "on his own." On the sets of "Medicine Ball" and "Under Suspicion," Respondent told him several times to slow down, that he was trying to do too much. Slider thought that Stoltz was too young to work late hours. She was 23 years of age at the time.
51) At times material, Christin Swanson was employed by Lakeside Productions on "Under Suspicion," first as assistant production coordinator and later as production coordinator. Respondent was the contract extras casting provider. Swanson saw a fax from "Extras Only" which listed experience Stoltz had gained with Central Casting and with Respondent as being experience of "Extras Only." Lakeside had an agreement with Respondent and did not hire Stoltz´s firm.
52) Chanda Watts had worked with Respondent as an unpaid intern from August 1994 to early 1995. She knew that Stoltz had been an intern with Respondent .As an African-American, she saw that minorities rarely were featured on camera. Her ambition was to be an actress, and she saw working with Respondent as an opportunity in film production. She saw interns used in all phases of the business including wardrobe, transportation, and other departments. She worked as a wrangler on "Under Suspicion," and was paid by the production company. She subsequently obtained an assignment as a "day player" (she had one line) for which she was paid $440 a day.
53) After Stoltz terminated with Respondent, Slider and Watts worked as interns with Respondent. Both made telephone calls to extras, who stated that Stoltz had failed to call them for work or had not followed through when they were underpaid or with promises of work. Some preferred not to work again through Respondent´s office because they were treated rudely by Stoltz. There had been break-ins at the office and there were files missing. Some extras had paid listing fees to Stoltz which were unrecorded. Respondent relisted them without fee. Generally, a listing expired in 12 months. The unemployed and the homeless were not forced to pay.
54) Jessica Holmgren went to school with Stoltz. He called one day and asked her to fill in as an extra, stating they needed someone right away. She told him she could not work late because she had school the following day. He insisted that she report. When she eventually had to leave before the days shooting was completed, Respondent was in difficulty with the production company, because Holmgren had appeared on camera.
55) Kyle Sheeley was employed as sales director for a hotel chain at the time of the hearing and also worked with Respondent as an unpaid intern. He had previously worked on films and in early 1993 he contacted Respondent for work in casting. He assisted with extras, organized, found types, and assisted with casting calls. He worked with Stoltz. Respondent spoke to Sheeley and Stoltz regarding accuracy of vouchers. At times, Stoltz would not leave in the evening when Respondent sent him home. In May 1993, Sheeley interviewed potential extras in Salem. At Respondent´s direction, Sheeley had marketed in Salem through word of mouth. Meanwhile, Stoltz had distributed unauthorized fliers soliciting extras applications.
56) After Stoltz ceased working for Respondent, Respondent´s office received fax transmissions which were sexually and racially derogatory and contained derogatory allegations about Respondent. Some of the productions companies also received these messages, which Respondent believed Stoltz had initiated. Respondent obtained an extras casting contract with Lakeside Productions in spite of their knowledge of negative information circulated about her.
57) In May 1994, Respondent had determined to end Stoltz´s relationship with her office and told him not to work on a project located in Salem. He made up some fliers for the project and distributed them in Salem after being told not to do so. His presence in Salem and the development and distribution of the fliers were totally unauthorized. As a result, she asked for the return of the office key and pager.
58) While Stoltz worked in Respondent´s office, he worked at her direction. If the production company told him it didn´t need him there, that is, that it wasn´t going to pay him, he still remained and carried out his duties for Respondent, who told him she needed him there to check the extras in and out. Respondent told him she would pay him on "Save the Last Dance" through her office.
59) Acting as an unpaid intern was seen as a means by which an interested individual could gain experience in and knowledge of the film industry.
60) The production company for "Single Dad" used a camera intern (an adult) who became a paid employee toward the end of the production.
61) Previous to her association with Stoltz, Respondent had seen people of varying ages, from 14 years of age up, used as unpaid interns by production companies. She had seen Stoltz "booking" for another casting office. She knew he was young, but denied knowing he was only 16 years of age and did not consider him to be her employee.
62) William F. Pick was a Compliance Specialist with the Agency at times material. In the summer of 1994, he investigated the allegations against Respondent regarding Stoltz. He made attempts to obtain records on Stoltz from Respondent, who responded by saying she was being harassed. He obtained a claim calendar from Stoltz. In the Agency´s records, he found a "short duration" permit for Respondent covering September 1993, which allowed the hire of up to 50 minors as extras for a maximum of ten days without the necessity of filing individual employment certificates. There was no record of a minor work permit for Stoltz and no minor employment certificate from Respondent regarding hiring Stoltz as her assistant. Based on the claim calendar submitted by Stoltz, Pick found that Stoltz had worked over 44 hours a week on 19 occasions.
63) With the exception of training programs registered with the Agency and certain religious, governmental, or non-profit organizations, no employer in Oregon may accept the volunteer services of an employee. All employees in Oregon, including minors, not covered by these exceptions must be accorded minimum labor standards, including working conditions and minimum wage. Oregon does not recognize voluntary internship in any for profit undertaking as legal.
64) Taylor was a close family friend of Respondent and a father figure to her children. He testified that Stoltz threatened him and Respondent´s children after Stoltz ceased working for Respondent. He believed that Stoltz was responsible for derogatory fax messages and had taken client files from Respondent´s office for his own use. He had no proof of this. He thought that Stoltz was a hard worker with poor people skills.
65) Some of Respondent´s testimony varied in some respects with other, more credible evidence. Respondent denied keeping Stoltz from attending school, and asserted that she had spoken repeatedly with his parents and his school counselor. Part of Respondent´s upset with Stoltz was due to his not keeping record of listings and fees. After May 1994, Respondent was the target of rumors and fax messages which she attributed to Stoltz. Respondent believed she was victimized by two break-ins which she also attributed to Stoltz: one in July when her journal and ledgers came up missing and one in the period between August and October, when she was working daily on a set in Tigard. Her office was thoroughly "trashed" that time, but the only things missing were computer discs of extras files, i.e., listings. She stated she had intended to cooperate with Pick and BOLI´s investigation and had some notes regarding the projects involving Stoltz. She retained an attorney but was unaware at the time of the hearing what was done. She testified that there were so many things going on in the late summer of 1994 that she did not clearly recall her conversations with her attorney or her dealings with Pick. At the time of the hearing, Respondent stated she at that time understood the requirements of the law, and intended future compliance, including obtaining or offering only paid positions for interns. When she attempted to get Stoltz a paid position with "Save the Last Dance" she learned his age. Since she had talked to his parents and his school, she thought it was permissible to get him employment. She stated his age was not listed in her casting records. The Forum has disregarded those portions of Respondent´s testimony which were controverted by more credible evidence or inference or which did not bear upon the unlawful employment of a minor.
66) Some of Stoltz´s testimony varied in some respects with other, more credible evidence. The Forum has disregarded those portions of his testimony which were controverted by more credible evidence or inference or which did not bear upon Respondent´s unlawful employment of a minor.
67) When Stoltz sought the Agency´s help in collecting wages from Respondent for his services, he filled out a calendar with the hours he worked each day as best he could recall. He gathered such documents as he had and "tried to construct it as close as I could come to it." He filed the resulting claim calendar with the Agency on or about June 7, 1994. At about the same time, he filled out an Agency complaint form in regard to an alleged child labor violation.
ULTIMATE FINDINGS OF FACT
1) At all times material herein, Respondent LaVerne Springer did business as Thumbs Up! Extra Casting, a business wherein she facilitated the assignment of extras for performance in various television and motion picture productions in this state.
2) While so engaged, Respondent utilized the personal services of Daniel Lee Stoltz, who assisted her at her direction and under her instructions from October 1993 to May 1994.
3) While Stoltz assisted Respondent as described, Respondent supplied the office, the office equipment, a pager, and a key to the office, and specified the procedure for doing the job.
4) During times material, Stoltz was a minor 16 years of age. There was no evidence that Respondent was regulated under the Federal Fair Labor Standards Act.
5) Before engaging Stoltz as her assistant, Respondent did not require him to produce a work permit.
6) After engaging Stoltz as her assistant, Respondent did not file a completed Employment Certificate Form with the Bureau of Labor and Industries within 48 hours after first permitting him to work.
7) From about October 1, 1993, through May 6, 1994, Stoltz assisted Respondent in her office or on the location of the described productions for over 44 hours per week during a total of 19 weeks.
8) From about October 1, 1993, through May 6, 1994, Respondent did not establish a regular payday, did not keep records of the hours Stoltz worked, and did not regularly compensate Stoltz for the hours he worked.
CONCLUSIONS OF LAW
1) At times material herein, Respondent was subject to the provisions of ORS 653.305 to 653.370 and the administrative rules adopted there- under.
2) At times material herein, ORS 653.305 provided:
"(1) The Wage and Hour Commission may at any time inquire into wages and hours or conditions of labor of minors employed in any occupation in this state and determine suitable hours and conditions of labor for such minors.
"(2) When the commission has made such determination, it may issue an obligatory order in compliance with ORS 183.310 to 183.550.
"(3) After such order is effective, no employer in the occupation affected shall employ a minor for more hours or under different conditions of labor than are specified or required by that order; but no such order nor the commission shall authorize or permit the employment of any minor for more hours per day or per week than the maximum fixed by law or at times or under conditions prohibited by law."
At times material herein, ORS 653.307 provided:
"(1) The Wage and Hour Commission shall provide a method for issuing employment certificates to minors and employment certificates to employers for the employment of minors in accordance with rules and regulations which it may hereafter adopt pursuant to the provisions of ORS 183.310 to 183.550, and shall by such rules and regulations require reports from employers employing minors.
"(2) Failure by an employer to comply with ORS 653.305 to 653.340 or with the regulations adopted by the Wage and Hour Commission pursuant to this section shall subject the employer to revocation of the right to hire minors in the future at the discretion of the Wage and Hour Commission, provided that an employer shall be granted a hearing before the Wage and Hour Commission prior to such action being taken.
"(3) All school districts shall cooperate with the Wage and Hour Commission and make available upon request of the commission, information concerning the age and schooling of minors who have applied for or been issued an employment certificate."
At times material herein, ORS 653.310 provided:
"No child under 18 years of age shall be employed or permitted to work in any employment listed in ORS 653.320(2), unless the person employing the child procures and keeps on file and accessible to the school authorities of the district where such child resides, and to the police and the commission an employment certificate as prescribed by the rules and regulations adopted by the Wage and Hour Commission pursuant to ORS 653.307, and keeps a complete list of all such children employed therein."
At times material herein, ORS 653.370 provided, in pertinent part:
"(1) In addition to any other penalty provided by law, the Commissioner of the Bureau of Labor and Industries may impose on any person not regulated under the Federal Fair Labor Standards Act who violates ORS 653.305 to 653.370 or any rule adopted by the Wage and Hour Commission thereunder, a civil penalty not to exceed $1,000 for each violation.
The Commissioner of the Bureau of Labor and Industries has jurisdiction over the persons and subject matter herein. Respondent was not regulated under the Fair Labor Standards Act.
3) At times material herein, OAR 839-21-006 provided, in pertinent part:
"As used in ORS 653.305 to 653.360 and in OAR 839-21-001 to 839-21-500, unless the context requires otherwise:
"(5) ´Employ´ shall have the same meaning as that which appears in ORS 653.010(1).
"(6) ´Employer´ shall have the same meaning as that which appears in ORS 653.010(2).
At times material herein, ORS 653.010 provided, in pertinent part:
"As used in ORS 653.010 to 653.261, unless the context requires otherwise:
"(3) ´Employ´ includes to suffer or permit to work; however, ´employ´ does not include voluntary or donated services performed for no compensation or without expectation or contemplation of compensation as the adequate consideration for the services performed for a public employer * * * or a religious, charitable, educational, public service or similar nonprofit corporation, organization or institution for community service, religious or humanitarian reasons or for services performed by general or public assistance recipients as part of any work training program administered under the state or federal assistance laws.
"(4) ´Employer´ means any person who employs another person * * * "
At times material, ORS 652.210 provided, in pertinent part:
"As used in ORS 652.210 to 652.230, unless the context requires otherwise:
"(1) ´Employer´ means any person employing one or more employees * * * .
"(2) ´Employee´ means any individual who, otherwise than as a copartner of the employer, as an independent contractor or as a participant in a work training program administered under the state or federal assistance laws, renders personal services wholly or partly in this state to an employer who pays or agrees to pay such individual at a fixed rate. * * * "
At all times material herein, Respondent was an employer and Daniel Lee Stoltz was her employee.
4) At times material herein, OAR 839-21-220 provided, in pertinent part:
"(1) Unless otherwise provided by rule of the Commission, no minor 14 through 17 years of age shall be employed or permitted to work unless the employer:
"(a) Verifies the minor´s age by requiring the minor to produce a Work Permit; * * *
"(3) Within 48 hours after the hiring of a minor, or of permitting a minor to work, an employer shall file a completed Employment Certificate Form by taking or mailing the completed form to any office of the Bureau of Labor and Industries."
At times material herein, OAR 839-21-235 provided:
"As used in OAR 839-21-235 to 839-21-246, ´Employment Permit´ means the Employment Certificate to minors and the Employment Certificate to employers of minors required by ORS 653.307."
Respondent failed to verify the age of minor Daniel Lee Stoltz, born September 26, 1977, by requiring him to produce a work permit before employing him or permitting him to work on or about October 1, 1993, in violation of ORS 653.307, 653.310, and OAR 839-21-220(1)(a).
5) Respondent failed to file a completed employment certificate form with the Bureau of Labor and Industries within 48 hours after hiring minor Daniel Lee Stoltz, born September 26, 1977, on or about October 1, 1993, in violation of ORS 653.307, 653.310, and OAR 839-21-220(3).
6) At times material herein, OAR 839-21-170 provided, in pertinent part:
"(1) Every employer employing minors shall maintain and preserve records containing the following information and data with respect to each minor employed:
"(a) Name in full, as used for social security recordkeeping purposes * * * ;
"(b) Home address, including zip code;
"(c) Date of birth;
"(d) Sex and occupation in which the minor is employed * * * ;
"(e) Time of day and day of week on which the minor´s workweek begins;
"(f) Hours worked each workday and total hours worked each workweek;
"(g) Date the minor became employed by the employer and date employment was terminated."
Between October 1, 1993, and May 1994, Respondent failed to keep the required records of the employment of minor Daniel Lee Stoltz, including the hours worked, contrary to OAR 839-21-170.
7) At times material herein, OAR 839-21-067 provided, in pertinent part:
"(1) No employer shall employ minors, except those employed in organized youth camps or those employed in agricultural employment, to work more than 44 hours per week unless a Special Emergency Overtime Permit has been issued therefor by the Wage and Hour Commission. * * * "
Between October 1, 1993, and May 1994, Respondent employed Daniel Lee Stoltz, a minor, more than 44 hours per week for each of 19 weeks and possessed no Special Emergency Overtime Permit from the Wage and Hour Commission, in violation of ORS 653.305 and OAR 839-21-067(1).
8) Under ORS 653.370, the Commissioner of the Bureau of Labor and Industries is authorized to assess a civil penalty for each violation of ORS 653.305 to 653.370 or any rule adopted by the Wage and Hour Commission thereunder. The civil penalties assessed in the Order below are a proper exercise of that authority.
The record in this case contains overwhelming evidence that Respondent was an employer in her work relationship with Daniel Lee Stoltz, a minor 16 years of age, and that Stoltz was her employee.
Where an individual who is not an independent contractor or copartner and who is not a participant in a work training program administered under the state or federal assistance laws renders personal service in this state to another who pays or agrees to pay the individual at a fixed rate, that individual is an employee and the one to whom the service is rendered is an employer. ORS 652.210. There was no evidence that whatever knowledge or training Stoltz received from Respondent was in any way part of a state sponsored or federally sponsored work training program.
The fact that Stoltz was not paid or that there was no agreement to pay him a fixed rate cannot take him out of the definition of "employee" where a minimum wage law required that he be paid a minimum wage. In the Matter of Martin´s Mercantile, 12 BOLI 262, 273 (1994) (citing In the Matter of Crystal Heart Books Co., 12 BOLI 33, 44 (1993)). Where the alleged employer has the right to control how the work is performed, furnishes the equipment, materials, and facilities used by the alleged employee, and the alleged employee cannot hire others to assist with the assigned work, the relationship is one of employer-employee and does not involve an independent contractor. In the Matter of All Season Insulation Company, Inc., 2 BOLI 264, 273-78 (1982). Where an individual has no ownership interest in the business, has no right to share in the profits, no liability to share any losses, and no right to exert some control over the business, that individual is not a co-owner or copartner of the alleged employer, but is in fact an employee. Crystal Heart Books, supra, at 41-44.
Respondent argued that Stoltz was an unpaid intern, exchanging his volunteer labor for training and knowledge in the film business, and introduced credible evidence that such arrangements were common throughout the film industry. However widespread that type of "training" might have been in the past or elsewhere, it is not lawful in Oregon, whether it involves adult employees or minors.
The Forum has difficulty crediting Respondent´s expressed belief that the "intern" system she described was lawful. She had, prior to employing Stoltz, discussed the unpaid intern situation with a representative of the Agency. While she employed Stoltz, she again had notice of the requirement of Oregon law that workers, particularly minors, receive minimum wage when she learned that a token payment plus lunch was not an acceptable pay rate. Respondent denied willfully violating the law. Willfulness is not an element in the violations charged of failing to verify age, failing to file a completed employment certificate form with the Bureau within 48 hours of hiring Stoltz, or employing him over 44 hours per week without a Wage and Hour Commission special permit, but if it were, that element would be satisfied.
It is not a defense for Respondent that Stoltz willingly and eagerly undertook the "intern" position. The subject statutes and rules were clearly designed to protect minors from their own eagerness and naivet‚, and from less than scrupulous potential employers.
The statutes and rules allow this Forum to impose particular penalties. Whatever Respondent´s subjective intent, the result was that she obtained free labor at the expense of a child. Any evidence suggesting that the child may have been disloyal or undependable do not mitigate those penalties. Respondent´s assurances of future compliance are offset by the continued use of unpaid interns up to the time of hearing. Nothing in this record suggests that anything less than the sanctions sought by the Agency should be imposed.
NOW, THEREFORE, as authorized by ORS 653.370, LAVERNE SPRINGER, dba Thumbs Up! Extra Casting, is hereby ordered to deliver to the Bureau of Labor and Industries, Fiscal Services Office Ste 1010, 800 NE Oregon Street # 32, Portland, Oregon 97232-2109, a certified check payable to the BUREAU OF LABOR AND INDUSTRIES in the amount of TWENTY THOUSAND DOLLARS ($20,000), plus any interest thereon, which accrues at the annual rate of nine per cent, between a date ten days after the issuance of the Final Order herein and the date Respondent complies therewith. This assessment is the sum of the following civil penalties against Respondent:
(1) Five Hundred Dollars ($500) for one violation of OAR 839-21-220(1)(a);
(2) Five Hundred Dollars ($500) for one violation of ORS 653.307, 653.310, and OAR 839-21-220(3); and,
(3) Nineteen Thousand Dollars ($19,000) for nineteen violations of ORS 653.305 and OAR 839-21-067 (1).
The names of the productions, both theatrical and television films, are generally working titles and may be different from the finished product. Hence, some of the shows mentioned by the witnesses may have had more than one title during or following production.
Stoltz was uncertain whether he started in the office on the evening of September 30 or October 1, 1993. Exhibit A-1, his claim calendar dated June 7, 1994, shows a start date of October 1.
The numbering of the referenced subsections of ORS was changed to (3) and (4), respectively, in 1989. Section 1, chapter 446, Oregon Laws 1989.