BILL NUMBER: AB 101 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 8, 2011
PASSED THE ASSEMBLY SEPTEMBER 9, 2011
AMENDED IN SENATE SEPTEMBER 2, 2011
AMENDED IN SENATE JUNE 28, 2011
AMENDED IN SENATE MARCH 15, 2011
INTRODUCED BY Assembly Member John A. Pérez
(Principal coauthor: Senator Steinberg)
JANUARY 10, 2011
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 101, John A. Pérez. Child care: family child care providers:
bargaining representative.
(1) 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.
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 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 individual
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
Personnel Administration, in consultation with the Superintendent 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.
(2) Existing law, the Budget Act of 2011, identifies AB 101 as a
bill providing for appropriations related to the Budget Bill, to take
effect immediately.
This bill would provide that, notwithstanding the Budget Act of
2011, this act is not a bill providing for appropriations related to
the Budget Bill, thereby declaring that this act not take effect
immediately.
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) There is a need to improve the quality of child care and to
reduce turnover 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.
(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 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.
(d) The supply of quality child care in the market is inadequate
to meet the demand in California. In 2010, the state lost nearly
5,700 licensed providers, representing a 13-percent decline in the
supply of licensed child care and an elimination of 11 percent or
44,000 licensed slots in these homes. In 2009, there was only
licensed capacity to care for 27 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.
(f) Family child care providers are a vital part of the child care
system. Their role gives them unique insight into how quality,
access, and stability could be improved for children and families.
But family child care providers lack any formal voice in
decisionmaking on issues that shape the child care system and the way
they carry out their profession.
(g) 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 system. Permitting family child care providers a formal voice
will allow the state to get input from providers and to maximize its
return on its investment in child care and will allow providers to
advocate to improve the quality, access, and stability of care
available to California's children and families.
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. (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.
8430.5. This article shall be known and may be cited as the
Quality Family Child Care Act.
8431. As used in this article:
(a) "Certified provider organization" means a provider
organization 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, to subsidize families
in purchasing child care.
(c) "Family child care provider" or "provider" means 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 any
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.
8431.5. 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 any 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, electronic mail (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, electronic mail (e-mail) address, unique
provider identification number, including license number, if
applicable, and whether or not the provider has participated in a
child care subsidy program in the previous six months 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 the purpose of organizing and
representing family child care providers.
8434. (a) An appropriate unit of family child care providers, as
defined in subdivision (g), 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, competing claims, requests
for intervention, petitions for elections for unit modifications,
and requests for decertification shall be filed with, received, and
acted upon by the board.
(c) At any point after the provider organization is certified as
an exclusive representative and without complying with the
requirement of a one-year waiting period, a certified provider
organization may file with the board a petition to expand an existing
unit of providers based on a showing of interest by 30 percent of
the providers to be added to the existing unit.
(d) The board may designate a neutral third party to act on any of
the requests filed with the board under subdivision (b) or (c).
(e) 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.
(f) All provider organizations placed on the ballot shall share
equally the cost of an election.
(g) A unit of providers will be considered an appropriate unit if
it is a statewide unit and it includes either of the following:
(1) All family child care providers who are licensed pursuant to
the requirement in Section 1596.80 of the Health and Safety Code.
(2) All or a reasonable subset of family child care providers who
participate in a child care subsidy program.
(h) There shall be no more than one bargaining unit at any time.
That unit shall be represented by no more than one certified provider
organization.
(i) 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 for providers participating in a child
care subsidy program. At the Governor's option, the scope of
representation may exclude this issue from the scope of
representation until July 1, 2014.
(h) Expanded access to food and nutrition programs.
(i) The deduction of membership dues and fair share fees.
(j) Any changes to current practice other than those listed in
subdivisions (a) to (h), 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 Personnel
Administration, 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 Personnel
Administration, 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 Personnel Administration, 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 Personnel Administration, 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. An agreement to deduct membership dues or fair share fees
shall apply only to those providers who receive payment from a child
care subsidy program.
(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 may 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 either
party may declare that an impasse has been reached and request the
board to appoint a mediator from the California State Mediation and
Conciliation Service. A memorandum of understanding reached by means
of mediation is subject to appropriation by the Legislature and
necessary statutory and regulatory revisions.
SEC. 3. Notwithstanding Section 39.00 of the Budget Act of 2011,
this act is not a bill providing for appropriations related to the
Budget Bill within the meaning of subdivision (e) of Section 12 of
Article IV of the California Constitution and shall not take effect
immediately.