Bill Text: CA AB641 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Child care: family child care providers: bargaining representative.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Engrossed - Dead) 2013-09-11 - Ordered to inactive file at the request of Senator De León. [AB641 Detail]

Download: California-2013-AB641-Amended.html

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BILL NUMBER: AB 641	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 19, 2013

INTRODUCED BY   Assembly Member Rendon

                        FEBRUARY 20, 2013

   An act  to add Article 19.5 (commencing with Section 8430) to
Chapter 2 of Part 6 of Division 1 of Title 1 of the Education Code,
  relating to child care.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 641, as amended, Rendon. Child care: family child care
providers: bargaining representative. 
   Existing law authorizes employees of public schools to form, join,
and participate in the activities of an employee organization for
the purpose of representation on matters of employer-employee
relations, including terms and conditions of employment. 
   Existing law, the Child Care and Development Services Act,
administered by the State Department of Education, requires the
Superintendent of Public Instruction to administer child care and
development programs that offer a full range of services for eligible
children from infancy to 13 years of age. 
   This bill would state that the Legislature finds and declares,
among other things, that it is necessary to enact legislation that
would grant family child care providers the right to choose a
representative to negotiate collectively with the state over the
operation of the child care system.  
   This bill would authorize family child care providers, as defined,
to choose whether to be represented by a single provider
organization, as defined, that would be designated pursuant to a
specified petition and election process overseen by the Public
Employment Relations Board or a neutral 3rd party designated by the
board. The bill would also establish a Family Child Care Parent
Advisory Committee that is required to (A) advise the Governor and
any certified provider organization on certain issues, and (B) make
specified recommendations.  
   The bill would require the State Department of Social Services and
the State Department of Education, with assistance of specified
state departments and agencies, and their contractors and
subcontractors, to make specified information regarding family child
care providers available to provider organizations and would require
the provider organization requesting the information to bear the
costs of collecting the information.  
   The bill would authorize a certified provider organization to
perform various functions, including meeting with state regulatory
agencies and engaging in various types of negotiation on matters
within a specified scope of representation with the Department of
Human Resources, in consultation with the Superintendent of Public
Instruction and other state agencies that administer programs of
publicly funded child care. The bill would prohibit provider
organizations from calling strikes and from interfering with,
intimidating, restraining, coercing, or discriminating against a
family child care provider because the family child care provider
joins or refuses to join a provider organization. The state, as
defined, also would be subject to the latter prohibition. The bill
would authorize the Governor, through the Department of Human
Resources, and the certified provider organization, if, after a
reasonable period of time they fail to reach agreement, to agree to
submit unresolved issues to the California State Mediation and
Conciliation Service for mediation or binding arbitration, and would
authorize either party to declare that an impasse has been reached
and request the Public Employment Relations Board to appoint a
mediator or arbitrator from the service to perform mediation or
binding arbitration. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) Quality, affordable child care is essential to prepare
California's children to succeed in school and in life and to allow
families to work and contribute to the state's economy with the
assurance that their children are safe and well cared for. 
   (b) Family child care is the child care setting of choice for many
families because of its warm home-like environment, convenience, and
affordability. The flexibility offered by many family child care
providers is particularly vital to the more than one-in-five
California workers who work nontraditional schedules and need child
care on evenings, overnight, and weekends.  
   (c) Family child care providers are small business owners who
contribute significantly to the economies of their communities and
the state. As businesses, family child care providers are engines for
economic growth, generating 100,000 direct and indirect jobs, three
billion five hundred million dollars ($3,500,000,000) in economic
output, and five hundred fifty million ($550,000,000) in tax
revenues. Family child care providers also contribute to the economy
by serving as a vital job support for working families. 

   (b) 
    (d)  There is a need to improve the quality of child
care and to  reduce turnover   increase
stability  in the industry that is charged with providing safe
and quality care for children in California.  Limited or no
employment benefits and low wages can drive dedicated child care
providers from the profession. The resulting turnover negatively
impacts the quality of child care provided and prevents children from
receiving the type of care they require in order to be prepared for,
and adapt successfully to, school settings.   Turnover
among family child care providers is estimated at more than 30
percent per year, more than four times higher than among teachers in
the public school system. Losing a caregiver leaves working parents
scrambling to find other arrangements and disrupts children's
cognitive and social development, putting them at a disadvantage when
it is time for them to start school.  
   (c) Turnover among family child care providers is estimated at 30
to 40 percent per year, five times higher than among teachers in the
public school system. Experienced family child care providers are
leaving the profession simply because they cannot afford to provide
for their own families. Losing a caregiver means children's cognitive
and social development is disrupted and parents are left scrambling
to find other arrangements.  
   (e) Experienced family child care providers who care for children
under California's child care subsidy program are leaving the
profession because low reimbursement rates and a lack of access to
affordable health insurance mean they cannot afford to provide for
their own families. The state's fragmented, disorganized system for
paying family child care providers under the child care subsidy
program, in which more than 120 different agencies contract with the
state to pay family child care providers also contributes to the
turnover. Family child care providers' pay is often late, is reduced,
or never arrives, and there is a lack of clear authority and redress
when problems arise.  
   (d) 
    (f)  The supply of quality child care in the market is
inadequate to meet the demand in California.  In 2010,
  Since 2008  the state  has  lost nearly
 5,700   11,000  licensed child care
providers, representing a  13-percent  
decline   25-   percent decrease  in the
supply of licensed child care  providers  and an elimination
of 11   21  percent of, or 
44,000,   86,500,  licensed slots  for children
 in these homes. In  2009,   2011, 
there was only licensed capacity to care for  27 
 25  percent of children with working parents. 
   (e) Family child care is affordable and convenient; it is
particularly vital to parents of infants and the one-in-five
California workers who work nontraditional schedules.  
   (g) Child care presents a perfect opportunity for early learning
and increased school readiness. However, there are few connections
between the state's child care system and the elementary and
secondary educational system. Establishing such links would improve
the quality of early education and care for California's children and
strengthen the elementary and secondary school system by ensuring
that children would be better prepared to start school. 

   (f) 
    (h)  Family child care  providers are a vital
part of the child care system. Their   providers 
 '  role  in the state's child care system gives
them unique insight into how quality, access, and stability could be
improved for children and families.  In the last year, family
child care providers have worked with the California Department of
Education to make improvements to the state's requirements for
timeliness of payment and communications with family child care
providers and families. This progress shows the value that family
child care provider voices can add.  But  family child
care providers lack any formal voice in   it also
highlights the need for family child care providers to have a formal
role in  decisionmaking on issues that shape the child care
system and the way they carry out their profession. 
   (g) 
    (i)  To promote higher quality and greater access and
stability in the child care system, it is necessary to enact
legislation  that would   to  grant family
child care providers the right to choose a representative to
negotiate collectively with the state over the operation of the child
care  system   subsidy program  .
Permitting family child care providers a formal voice will allow the
state to get input from family child care providers and to maximize
its return on its investment in child care and will allow family
child care providers to advocate to improve the quality, access, and
stability of care available to California's children and families.

   (j) Families who receive child care subsidies also lack any formal
voice into the way the child care system operates. Forming a Family
Child Care Parent Advisory Committee on matters related to the child
care subsidy program will permit the state to benefit from the
experience and recommendations of families who rely on the child care
subsidy program. 
   SEC. 2.    Article 19.5 (commencing with Section
8430) is added to Chapter 2 of Part 6 of   Division 1 of
Title 1 of the   Education Code   , to read: 


      Article 19.5.  Quality Family Child Care


   8430.  This article shall be known and may be cited as the Quality
Family Child Care Act.
   8430.5.  (a) The purpose of this article is to promote quality,
access, and stability in the child care system by authorizing an
appropriate unit of family child care providers to choose a provider
organization to act as their exclusive representative on all matters
specified in this article. It is also the purpose of this article to
promote full communication between family child care providers and
the state by permitting a provider organization certified as the
representative of family child care providers to meet and confer with
the state regarding the state's child care system.
   (b) This article does not change family child care providers'
status as independent business owners or classify family child care
providers as public employees.
   8431.  As used in this article:
   (a) "Certified provider organization" means a provider
organization that is, or provider organizations that jointly are,
certified by the board as the exclusive representative of family
child care providers in an appropriate unit after a proceeding under
Section 8434.
   (b) "Child care subsidy program" means a program established
pursuant to this chapter and administered by the department or the
State Department of Social Services, or both, or any successor
program or similar program subsequently established or administered
by any departments of the state or a political subdivision of the
state, to subsidize families in purchasing child care.
   (c) "Family child care provider" or "provider" means a child care
provider that participates in a child care subsidy program and is
either of the following:
   (1) A family day care home provider, as defined in Section 1596.78
of the Health and Safety Code, who is licensed pursuant to the
requirement in Section 1596.80 of the Health and Safety Code.
   (2) An individual who meets all of the following criteria:
   (A) Provides child care in his or her own home or in the home of
the child receiving care.
   (B) Is exempt from licensing requirements pursuant to Section
1596.792 of the Health and Safety Code.
   (C) Participates in a child care subsidy program.
   (d) "Provider organization" means an organization that has all of
the following characteristics:
   (1) Includes family child care providers.
   (2) Has as one of its main purposes the representation of family
child care providers in their relations with public and private
entities in California.
   (3) Is not an entity that contracts with the state or a county to
administer or process payments for a child care subsidy program.
   (e) "Public Employment Relations Board" or "board" means the
Public Employment Relations Board established pursuant to Section
3541 of the Government Code. The powers and duties of the board
described in Sections 3514.5, 3520.5, and 3541.3 of the Government
Code, and the respective implementing regulations, shall apply, as
appropriate, to this article to the extent those procedures are not
inconsistent with the procedures specified in this article. If a
provision of this article is the same or substantially the same as
that contained in Chapter 10 (commencing with Section 3500), Chapter
10.3 (commencing with Section 3512), or Chapter 10.7 (commencing with
Section 3540) of Division 4 of Title 1 of the Government Code, it
shall be interpreted and applied in accordance with the judicial
interpretations of the provision in those statutes.
   8431.3.  (a) There is hereby established a Family Child Care
Parent Advisory Committee. The committee shall consist of 11 members,
nine of whom shall be the parents or guardians of children who
participate or have participated in a child care subsidy program. The
Director of the State Department of Social Services, or his or her
designee, shall serve on the committee. The Superintendent, or his or
her designee, shall serve on the committee and act as the committee
chair. A majority of members of the committee shall constitute a
quorum for the transaction of any business.
   (b) The Governor, the Speaker of the Assembly, and the President
pro Tempore of the Senate shall each appoint three parent or guardian
members to the committee.
   (c) The committee members shall serve three-year terms.
   (d) The committee shall advise the Governor, or his or her
designee, and any certified provider organization regarding issues
related to the quality, affordability, and accessibility of child
care offered through child care subsidy programs of the state. In
particular, the committee shall make recommendations regarding both
of the following:
   (1) Strategies for improving quality, affordability, and access to
child care for families, including, but not limited to, families who
cannot participate in the child care subsidy program because of wait
lists or other hurdles.
   (2) The structure of the child care subsidy program of the state,
including, but not limited to, the application and renewal process,
eligibility rules and standards, and the amount of family copayments.

   8431.5.  The state action antitrust exemption to the application
of federal and state antitrust laws is applicable to the activities
of family child care providers and their representatives authorized
under this article.
   8432.  Family child care providers have the right to form, join,
and participate in the activities of provider organizations of their
own choosing for the purpose of being represented in all matters
specified in this article. Family child care providers have the right
to refuse to join or participate in the activities of provider
organizations, except that a certified provider organization may
charge family child care providers who receive payment from a child
care subsidy program a fair share fee pursuant to Section 8436.
   8432.5.  Family child care providers are not public employees, and
this article does not create an employer-employee relationship
between family child care providers and the state or a public or
private nonprofit entity for any purpose, including, but not limited
to, eligibility for health or retirement benefits or vicarious
liability in tort. This article does not alter the status of a family
child care provider as a business owner, an employee of a family, or
a contractor.
   8433.  This article does not alter the rights of families to
select, direct, and terminate the services of family child care
providers.
   8433.5.  (a) Within 10 days of receipt of a request from a
provider organization, the State Department of Social Services shall
make available to that provider organization information regarding
family child care providers described in paragraph (1) of subdivision
(c) of Section 8431, including each provider's name, home address,
mailing address, telephone number, e-mail address, and license
number.
   (b) Within 30 days of receipt of a request from a provider
organization, the department, with the assistance of the State
Department of Social Services and any state department or agency, or
its contractor or subcontractor, in possession of the relevant
information, shall collect information regarding family child care
providers, including each provider's name, home address, mailing
address, telephone number, e-mail address, unique provider
identification number, if applicable, and shall make that information
available to the provider organization. The provider organization
shall bear the reasonable costs of collecting the information
described in this subdivision if that information has not been
previously collected.
   (c) A provider organization under this article shall be considered
a day care organization for purposes of subdivisions (b) and (c) of
Section 1596.86 of the Health and Safety Code. All confidentiality
requirements applicable to recipients of information pursuant to
Section 1596.86 of the Health and Safety Code apply to provider
organizations and shall apply also to protect the personal
information of family child care providers as defined in paragraph
(2) of subdivision (c) of Section 8431. Information provided pursuant
to this section shall be used only for purposes of organizing and
representing family child care providers.
   8434.  (a) An appropriate unit of family child care providers, as
defined in subdivision (e), may designate, in accordance with the
provisions of this article, the provider organization, if any, that
shall be its exclusive representative. The board shall certify a
provider organization designated by an appropriate unit of family
child care providers as the exclusive representative of those
providers.
   (b) Requests for elections, challenges, and competing claims,
requests for intervention, and requests for decertification shall be
filed with, received by, and acted upon by the board, provided that a
valid petition for a certification or decertification election is
resolved by a secret ballot election among family child care
providers. The board may designate a neutral third party to act on
any of the requests filed with the board pursuant to this
subdivision.
   (c) The provider organization that presents a petition requesting
certification shall pay the reasonable costs of verifying the number
of family child care providers that have designated a provider
organization to act as their exclusive representative. The board, or
a neutral third party designated by the board to act on a request for
certification election, shall consider a document evidencing a
family child care provider's support for a provider organization
valid if it was signed by the family child care provider within two
years of the date it is submitted to the board.
   (d) All provider organizations placed on the ballot shall share
equally the cost of an election.
   (e) The only appropriate unit shall consist of all family child
care providers in the state.
   (f) A certified provider organization shall represent each
provider in the represented unit fairly, without discrimination and
without regard to whether the provider is a member of the provider
organization.
   8434.5.  The scope of representation shall include all of the
following:
   (a) The administration of laws and regulations governing licensing
for providers.
   (b) Joint labor-management committees.
   (c) Contract grievance arbitration.
   (d) Expanded access to professional development and training
opportunities for providers.
   (e) Benefits for providers.
   (f) Payment procedures for child care subsidy programs.
   (g) Reimbursement rates and other economic matters.
   (h) Expanded access to food and nutrition programs.
   (i) The deduction of membership dues, fair share fees, and any
voluntary deductions authorized by individual family child care
providers.
   (j) Building connections between the family child care system and
the elementary and secondary education system.
   (k) Expanded access to the subsidized family child care system to
families in need of subsidies.
   (l) Any changes to current practice other than those listed in
subdivisions (a) to (k), inclusive, that would do any of the
following:
   (1) Improve recruitment and retention of qualified providers.
   (2) Improve the quality of the programs.
   (3) Encourage qualified providers to seek additional education and
training.
   (4) Promote the health and safety of providers and the children in
their care.
   8435.  (a) The Governor, through the Department of Human
Resources, in consultation with the Superintendent, other state
agencies that administer programs of publicly funded child care, and
their contractors, as needed, shall meet and confer in good faith
regarding all matters within the scope of representation with
representatives of a certified provider organization and, before
arriving at a determination of policy or course of action, shall
consider fully the presentations made by the certified provider
organization on behalf of the providers it represents.
   (b) As used in this section, "meet and confer in good faith" means
that the Governor, through the Department of Human Resources, and
representatives of the certified provider organization shall have the
mutual obligation to meet and confer promptly upon request by either
party and continue for a reasonable period of time in order to
exchange freely information, opinions, and proposals. The duty to
meet and confer in good faith also requires the parties to begin
negotiations sufficiently in advance of the adoption of the state's
final budget for the ensuing fiscal year so that there is adequate
time for agreement to be reached before the adoption of the final
budget and for the resolution of an impasse.
   8435.5.  (a) If agreement is reached between the Governor, through
the Department of Human Resources, and the certified provider
organization, they jointly shall prepare a written memorandum of
understanding. Any portions of the memorandum of understanding
requiring appropriation by the Legislature or statutory or regulatory
revisions shall be subject to legislative approval of those
appropriations or statutory or regulatory revisions.
   (b) A memorandum of understanding between the Governor, through
the Department of Human Resources, and the certified provider
organization is binding on all state departments and agencies that
are involved in the administration of child care subsidy programs,
and the relevant contractors or subcontractors of those departments
and agencies.
   (c) An agreement pursuant to this section may provide for binding
arbitration of grievances concerning the interpretation, application,
or violation of the agreement.
   (d) This article does not alter the requirements governing the
child care reimbursement system that are set forth in Section 8222.
   8436.  (a) A certified provider organization shall have the same
right to enter into an agreement with the state regarding deduction
of membership dues and fair share fees from subsidy payments made to
providers, including payments made through state agencies,
departments, contractors, or subcontractors, as recognized employee
organizations have under Sections 3515.7 and 3515.8 of the Government
Code.
   (b) The amount of any fair share fee shall not exceed the amount
of the dues payable by the members of the certified provider
organization. The costs covered by the fair share fee may include all
of the following:
   (1) The certified provider organization's costs for meeting and
conferring with the state.
   (2) Contract administration.
   (3) Securing for the represented providers improvements in subsidy
rates, benefits, payment systems, training opportunities, and other
matters related to the family child care system in addition to those
secured through meeting and conferring with the state.
   (4) Other activities germane to the certified provider
organization's function as the exclusive representative of providers.

   (c) If the deduction of membership dues or fair share fees for a
provider requires action by more than one agency, department,
contractor, or subcontractor, the certified provider organization
shall establish procedures to ensure both of the following:
   (1) The amount of the dues or fees does not exceed the total
membership or fair share fee owed by that provider.
   (2) The administrative procedures for deducting dues or fees are
reasonable.
   (d) The state, its agencies and departments, and their contractors
and subcontractors shall not be liable in any action by a provider
seeking recovery of, or damage for, improper calculation or use of
fair share fees.
   8436.5.  (a) It is unlawful for the state, including its agencies,
boards, commissions, departments, public benefit corporations,
political subdivisions, contractors, subcontractors, or employees, to
do to providers or provider organizations any of the things made
unlawful under Section 3519 of the Government Code.
   (b) It shall be unlawful for a provider organization to do to the
state or to providers any of the things made unlawful under Section
3519.5 of the Government Code.
   (c) For purposes of subdivisions (a) and (b), the references in
subdivision (e) of Section 3519 of, and subdivision (d) of Section
3519.5 of, the Government Code to "the mediation procedure set forth
in Section 3518" shall be deemed to refer to the impasse procedures
set forth in Section 8437.5.
   (d) The initial determination as to whether charges of unfair
practices are justified and, if so, what remedy is necessary to
effectuate the purposes of this article shall be a matter within the
exclusive jurisdiction of the board.
   8437.  A provider organization shall not direct or call a strike.
   8437.5.  If after a reasonable period of time the parties fail to
reach agreement, the parties may agree to submit unresolved issues to
the California State Mediation and Conciliation Service established
by the Department of Industrial Relations for mediation or binding
arbitration, or either party may declare that an impasse has been
                                             reached and request the
board to appoint a mediator or an arbitrator from the California
State Mediation and Conciliation Service to perform mediation or
binding arbitration. A memorandum of understanding reached by means
of mediation or arbitration is subject to appropriation by the
Legislature and necessary statutory and regulatory revisions.