Amended in Senate June 17, 2013

Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 641

Introduced by Assembly Member Rendon

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(Coauthors: Assembly Members Ammiano and Bradford)

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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 begin insert the end insert 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 begin insert dollars end insert
($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 begin delete school end delete
begin insert educational end insert 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 begin insert , end insert 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 begin delete known end delete begin insert known, end insert and may be begin delete cited end delete
begin insert cited, end insert 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 begin delete Governor, the end delete begin insert Governor shall appoint five parent or
guardian members to the committee. end insert

begin insert (c) end insert begin insert   end insert begin insert The end insert Speaker of the Assembly, and the begin delete President pro Tempore
of the end delete Senate begin insert Committee on Rules end insert shall each appoint begin delete three end delete begin insert two end insert
parent or guardian members to the committee.

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(c)

end delete

begin insert (d) end insert  The committee members shall serve three-year terms.

begin insert

(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.

end insert begin delete

(d)

end delete

begin insert (f) end insert  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 begin delete education end delete begin insert educational end insert 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.