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 SENATE  JUNE 17, 2013
	AMENDED IN ASSEMBLY  MARCH 19, 2013

INTRODUCED BY   Assembly Member Rendon
    (   Coauthors:   Assembly Members 
 Ammiano   and Bradford   ) 

                        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 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  the  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: 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 homelike 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  dollars 
($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.
   (d) There is a need to improve the quality of child care and to
increase stability in the industry that is charged with providing
safe and quality care for children in California. 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.
   (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.
   (f) The supply of quality child care in the market is inadequate
to meet the demand in California. Since 2008 the state has lost
nearly 11,000 licensed child care providers, representing a
25-percent decrease in the supply of licensed child care providers
and an elimination of 21 percent of, or 86,500, licensed slots for
children in these homes. In 2011, there was only licensed capacity to
care for 25 percent of children with working parents.
   (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 
 educational  system by ensuring that children would be
better prepared to start school.
   (h) Family child care 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 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.
   (i) To promote higher quality and greater access and stability in
the child care system, it is necessary to enact legislation 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 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   known,
 and may be  cited   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   Governor shall
appoint five parent or guardian members to the committee. 
    (c)     The  Speaker of the Assembly,
and the  President pro Tempore of the  Senate 
Committee on Rules  shall each appoint  three 
 two  parent or guardian members to the committee. 
   (c) 
    (d)  The committee members shall serve three-year terms.

   (e) The committee shall meet not more than three times per
calendar year and the committee members shall each be entitled to
reimbursement for travel by the department not to exceed four hundred
dollars ($400) per meeting for airfare, or fifty-six and four-tenths
cents ($0.564) per mile for motor vehicle mileage per meeting. 

   (d) 
    (f)  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  
educational  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.