BILL ANALYSIS Ó AB 101 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 101 (John A. Pérez) As Amended September 2, 2011 Majority vote ---------------------------------------------------------------------- |ASSEMBLY: | |(February 22, |SENATE: |23-15|(September 8, 2011) | | | |2011) | | | | ---------------------------------------------------------------------- (vote not relevant) ------------------------------------------------------------------------ |COMMITTEE VOTE: |5-2 |(September 8, 2011) |RECOMMENDATION: |concur | | | | | | | ------------------------------------------------------------------------ Original Committee Reference: Not applicable SUMMARY : Authorizes family child care providers to form, join and participate in "provider organizations" for purposes of negotiating with state agencies on specified matters. The Senate amendments delete the contents of the bill and instead authorize family child care providers to form, join and participate in "provider organizations" for purposes of negotiating with state agencies on specified matters. Specifically, the Senate amendments : 1)Define a "family child care provider" or "provider" as either of the following: a) A family child care provider that is licensed. b) An individual who provides child care in his or her home or in the home of the child receiving care, is exempt from licensing requirements, and participates in a child care subsidy program. 2)Define a "provider organization" as an organization that has all of the following characteristics: a) The organization includes family child care providers. AB 101 Page 2 b) The organization has as one of its main purposes the representation of family child care providers in their relations with public and private entities in the state. c) The organization is not an entity that contracts with the state or a county to administer or process payments for a child care subsidy program. 3)Provide that family child care providers have the right to form, join and participate in the activities of provider organizations of their own choosing for purposes of representation on specified matters. 4)Specify that family child care providers are not public employees, and that this bill does not create an employer-employee relationship between family child care providers and the state or any other entity. This bill does not change the child care providers' status as independent business owners or classify child care providers as public employees. 5)Provide that 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. 6)Specify that 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. However, at the Governor's option, the scope of representation may exclude this issue until July 1, AB 101 Page 3 2014. h) Expanded access to food and nutrition programs. i) The deduction of membership dues and fees. j) Any other changes to current practice that would result in specified improvements to the child care system. 7)Require the Department of Social Services to make available to a provider organization, upon request, the name, address, telephone number and other information regarding child care providers, as specified. 8)Establish a petition and election process for the selection of provider organizations, to be administered by the Public Employment Relations Board (PERB), as specified. 9)Provide that there shall be no more than one bargaining unit at any time, and that unit shall be represented by no more than one certified provider organization. 10)Require a provider organization to represent all family child care providers in the unit fairly and without discrimination and without regard to whether the providers are members of the provider organization. 11)Require the Governor, through the Department of Personnel Administration, to meet and confer in good faith regarding all matters within the scope of representation. "Meet and confer in good faith" means the parties have the mutual obligation personally to meet and confer promptly upon request by either party and continue for a reasonable period of time. 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 year. 12)Require any agreement reached to be reflected in a written memorandum of understanding, which will be 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. 13)Authorize a provider organization to enter an agreement with the state regarding the payment of dues, as specified. AB 101 Page 4 14)Prohibit a provider organization from directing or calling a strike. 15)Enact related and conforming changes. 16)Make related legislative findings and declarations. EXISTING LAW : 1 Authorizes the Superintendent of Public Instruction to develop standards for quality child care programs and to enter into contracts with child care centers and family child care homes for the provision of child care and development services. Family child care is provided by someone who resides in the home where care is provided. 2) Establishes a reimbursement system for subsidized child care in which: a) Parents can choose a licensed center or family child care home, and the state reimburses the provider the same rate that the provider charges a family who is not subsidized, up to a ceiling established by the state. b) Parents can choose a provider who is not required to be licensed (usually a relative, neighbor or friend), and the state reimburses that provider a rate set within each county based on the mean cost of licensed care in the county. c) Parents can enroll their children in a center or network of family child care homes that has a direct contract with the State Department of Education. Child care in these programs is reimbursed at a daily rate established in the contract. For most contractors, the daily rate is the Standard Reimbursement Rate, set in statute and adjusted by the Legislature to reflect changes in the cost of living. d) The daily rate for direct contractors is adjusted by a statutory formula for infants, school-aged children, children with disabilities, children at-risk of abuse or neglect, children who have limited English proficiency and children who spend less than six hours per day in care or more than eight-and-one-half hours per day in care. AB 101 Page 5 AS PASSED BY THE ASSEMBLY , this bill expressed the intent of the Legislature to enact statutory changes relating to the 2011 Budget Act. FISCAL EFFECT : Unknown COMMENTS : This bill is jointly sponsored by the American Federation of State, County and Municipal Employees (AFSCME) and the Service Employees International Union (SEIU). This bill authorizes family child care providers to form, join and participate in "provider organizations" for purposes of negotiating with state agencies on specified matters. The bill states that its purpose 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" within the scope of representation as defined in the bill. The bill also states that it is intended to promote full communication between providers and the state by permitting a provider organization to meet and confer with the state regarding the state's child care system. Specifically, the bill seeks to allow family child care providers to engage in specified collective activity under the "state action doctrine" to federal and state antitrust laws. The "state action" doctrine recognizes that the federal government did not intend to supersede the authority of the states through antitrust regulation. A recent report by the National Women's Law Center discussed recent developments in other states to authorize home-based child care providers to join unions and negotiate with the state for better compensation and working conditions. The report noted that home-based child care providers are not in a traditional employer- employee relationship that permits them to unionize. Most are independent contractors and need special legal authority to organize into unions that can bargain with the state over rates, benefits, and similar matters. According to the report, 14 states have authorized child care providers to organize and negotiate with the state. This includes Illinois, Washington, Oregon, Iowa, New Jersey, Michigan, Wisconsin, New York, Pennsylvania, Kansas, Maryland, Ohio, Maine and New Mexico. This bill is similar, but not identical to SB 867 (Cedillo) of AB 101 Page 6 2008. SB 867 was vetoed by Governor Schwarzenegger. Other similar prior legislation includes AB 1164 (De Leon) of 2007 (which was vetoed by Governor Schwarzenegger), SB 697 (Kuehl) of 2006 (which was vetoed by Governor Schwarzenegger), SB 1600 (Kuehl) of 2006 (which was held under submission by the Senate Appropriations Committee), and SB 1897 (Burton) of 2004 (which was vetoed by Governor Schwarzenegger). Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091 FN: 0002869