BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                AB 101
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        CONCURRENCE IN SENATE AMENDMENTS
        AB 101 (John A. Pérez)
        As Amended  September 2, 2011
        Majority vote
         
         
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        |ASSEMBLY: |     |(February 22,   |SENATE: |23-15|(September 8, 2011)  |
        |          |     |2011)           |        |     |                     |
         ---------------------------------------------------------------------- 
             (vote not relevant)


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        |COMMITTEE VOTE:  |5-2  |(September 8, 2011) |RECOMMENDATION: |concur    |
        |                 |     |                    |                |          |
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        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.









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           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, 








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             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.








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        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. 









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         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 








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        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 


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