Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 641

Introduced by Assembly Member Rendon

February 20, 2013

An act begin insert 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, end insert relating to child care.

LEGISLATIVE COUNSEL’S DIGEST

AB 641, as amended, Rendon. Child care: family child care providers: bargaining representative.

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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.

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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.

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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.

end delete begin insert

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.

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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.

end insert begin insert

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.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . 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.

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(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.

end insert begin insert

(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.

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(b)

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begin insert (d) end insert  There is a need to improve the quality of child care and to
begin delete reduce turnover end delete begin insert increase stability end insert in the industry that is charged
with providing safe and quality care for children in California. begin delete 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. end delete
begin insert 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. end insert

begin delete

(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.

end delete begin insert

(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.

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(d)

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begin insert (f) end insert  The supply of quality child care in the market is inadequate
to meet the demand in California. begin delete In 2010, end delete begin insert Since 2008 end insert the state
begin insert has end insert lost nearly begin delete 5,700 end delete begin insert 11,000 end insert licensed child care providers,
representing a begin delete 13-percent end delete begin delete decline end delete begin insert 25-percent decrease end insert in the supply
of licensed child care begin insert providers end insert and an elimination of begin delete 11 end delete begin insert 21 end insert percent
of, or begin delete 44,000, end delete begin insert 86,500, end insert licensed slots begin insert for children end insert in these homes.
In begin delete 2009, end delete begin insert 2011, end insert there was only licensed capacity to care for begin delete 27 end delete begin insert 25 end insert
percent of children with working parents.

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(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.

end delete begin insert

(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.

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(f)

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begin insert (h) end insert  Family child care begin delete providers are a vital part of the child care
system. Their end delete begin insert providers end insert begin insert ’ end insert role begin insert in the state’s child care system end insert gives
them unique insight into how quality, access, and stability could
be improved for children and families. begin insert 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. end insert But begin delete family child care providers
lack any formal voice in end delete begin insert it also highlights the need for family child
care providers to have a formal role in end insert decisionmaking on issues
that shape the child care system and the way they carry out their
profession.

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(g)

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begin insert (i) end insert  To promote higher quality and greater access and stability
in the child care system, it is necessary to enact legislation begin delete that
would end delete begin insert to end insert grant family child care providers the right to choose a
representative to negotiate collectively with the state over the
operation of the child care begin delete system end delete begin insert subsidy program end insert . 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.

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(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.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Article 19.5 (commencing with Section 8430) is added
to Chapter 2 of Part 6 of Division 1 of Title 1 of the end insert begin insert Education
Code end insert begin insert , to read: end insert

begin insert

 

Article begin insert 19.5. end insert   Quality Family Child Care

 

begin insert 8430. end insert   

This article shall be known and may be cited as the
Quality Family Child Care Act.

begin insert 8430.5. end insert   

(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.

begin insert 8431. end insert   

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.

begin insert 8431.3. end insert   

(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.

begin insert 8431.5. end insert   

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.

begin insert 8432. end insert   

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.

begin insert 8432.5. end insert   

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.

begin insert 8433. end insert   

This article does not alter the rights of families to select,
direct, and terminate the services of family child care providers.

begin insert 8433.5. end insert   

(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.

begin insert 8434. end insert   

(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.

begin insert 8434.5. end insert   

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.

begin insert 8435. end insert   

(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.

begin insert 8435.5. end insert   

(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.

begin insert 8436. end insert   

(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.

begin insert 8436.5. end insert   

(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.

begin insert 8437. end insert   

A provider organization shall not direct or call a strike.

begin insert 8437.5. end insert   

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.

end insert