BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: SB 548 Hearing Date: April 29,
2015
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|Author: |De León |
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|Version: |April 14, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Gideon Baum |
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Subject: Child care: family child care providers: bargaining
representatives
KEY ISSUE
Should the Legislature exempt family child care providers from
antitrust laws and allow them to organize to negotiate over
wages, benefits, and other occupational matters?
Should the Legislature state its intent to create additional
childcare slots for children living in extreme poverty?
ANALYSIS
Existing law requires that all day care centers and family child
care homes, with certain exceptions, be licensed and registered
with the state. The licensing fee is dependent on the number of
children that the centers or homes take care of. Family child
care homes, where the child care is provided by someone who
resides in the home where the care is provided, may only take
care of up to 14 children, while day care centers may be
licensed for more.
(Health and Safety Code §§ 1596.78, 1596.80, and 1596.803)
Existing law exempts family child care providers from the
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licensing requirement if they meet certain circumstances. These
include:
1) The family day care home is providing care for only one
family in addition to the provider's own children;
2) Parents have come together for a cooperative arrangement
to combine their efforts for the care of all of their
children and no payment is involved;
3) The provider is taking care of a relative's child;
4) The family child care program operates only one day per
week for no more than four hours.
(Health and Safety Code §§ 1596.792 & 1597.53)
Existing law allows 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. Existing law also authorizes the Department of Education
to create alternative payment providers in each county to
establish a reimbursement system for subsidized child care in
which:
a) Eligible parents can choose a licensed day care center or
family child care home, and the state reimburses the provider
the same rate that the provider charges a family that is not
subsidized, up to a ceiling established by the state;
b) Eligible parents can choose a provider that is exempt
from the licensing requirements, and the state reimburses that
provider at a rate set within each county, based on the mean
cost of licensed care in the county;
c) Eligible 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 providers that contract directly with
the state is adjusted by a statutory formula for infants,
school-aged children, children with disabilities, and children
at-risk of abuse or neglect.
(Education Code §§ 8220-8227, 8263)
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This bill would give licensed and unlicensed child care
providers the right form a single, statewide child care provider
organization to negotiate collectively with the state.
Specifically, this bill would:
a) State that the purpose of this bill would be to promote
quality, access, and stability in the child care system by
authorizing family child care providers to form a provider
organization and establish a training partnership with the
state;
b) Extend the state action antitrust exemption to the
activities of the family child care providers and their
representatives. This bill also states, however, that the
status of family child care providers as independent
business owners does not change, nor does this bill
classify family child care providers as public employees;
c) Create a right for family child care providers to form
provider organizations. Child care providers would retain
the right to join or not join such an organization;
d) Require that, within 10 days of receipt of a request
from a provider organization, the State Department of
Social Services must make available to that provider
organization information regarding licensed family child
care providers, including each provider's contact
information;
e) Require that, within 30 days of receipt of a request
from a provider organization, the Department of Education,
with the assistance of the relevant organization, must
collect information regarding family child care providers,
including each provider's contact information. The provider
organization must bear the reasonable costs of collecting
the information.
f) Require that, upon written request of a family child
care provider, the State Department of Education and the
State Department of Social Services must remove the family
child care provider's home address and telephone number
from the above-described lists.
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This bill would also create a certification process as follows:
a) Provides that a unit of provider organizations may
choose to designate the provider organization that shall be
the exclusive representative for negotiations with the
state. In order for a unit of provider organizations to be
considered appropriate, the unit must be statewide and
include all family child care providers.
b) Provides that the Public Employment Relations Board
(PERB) must conduct an election to certify the provider
organization as the exclusive bargaining representative.
PERB is also required to receive and act upon challenges,
petitions for unit certification, and other representation
issues. All provider organizations on the ballot must
share equally in the cost of the election;
c) Empowers PERB to contract with a neutral third party to
conduct all necessary elections and other representation
requests.
This bill would also create a representation process as follows:
a) Provides that the child care organization would
represent all child care providers in negotiations with the
Governor and state agencies on issues that fall within the
child care provider organization's scope of representation.
b) Provide that issues within the scope of representation
include:
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 including, but not limited to,
rate add-ons for providers who complete extra training;
h) Expanded access to and funding for food and
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nutrition programs.
i) The deduction of membership dues and fair share
fees.
j) Expanded access to state-funded child care program
to families in need of subsidies.
aa) Any changes to current practice other than those
listed in above that would improve recruitment and
retention of child care providers, quality of child care
programs, additional education of qualified child care
providers, and the promotion the health and safety of
providers and the children in their care.
a) Requires that The Governor, through the Department of
Personnel Administration, in consultation with the
Superintendent, other state agencies that administer
state-funded child care programs, and their contractors,
must meet and confer in good faith regarding on all matters
within the scope of representation with representatives of
a certified provider organization;
b) Provides that if an 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.
c) Provide the child care provider organization with right
to enter an agreement with the state for the deduction of
membership dues and fair share fees from child care subsidy
payments made to providers.
d) Prohibit the child care provider organization from
directing or calling a strike. These amendments would also
allow for disputes to be submitted to the California State
Mediation and Conciliation Service for mediation.
This bill would also state that it is the intent of the
Legislature to create an unspecified number of additional slots
in alternative payment programs for children living in extreme
poverty, defined as 50% of the federal poverty level, if funding
is allocated in the budget.
This bill would create the following training provisions:
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1) Requires, if a family child care provider organization
is certified, the State and the certified provider
organization to establish a training partnership consisting
of a Joint Committee on Child Care Training, Education, and
Quality Improvement. The membership of the Joint Committee
(training committee) is to include representatives of the
certified provider organization and designees of the
Governor.
2) Requires the provider organization to establish a
training program that carries out the recommendations of
the training committee.
3) Requires the training committee to meet to identify gaps
in the training available to family child care providers
and barriers that prevent family child care providers from
gaining greater skills and accessing postsecondary
education, and issue recommendations on an annual basis to
improve the quality of care offered by licensed and
license-exempt family child care providers.
4) Requires the training committee to play a coordinating
role in ensuring that the training offered to providers
through the training program:
a) Meets the State's needs for the child care
workforce.
b) Satisfies the health, safety and educational
standards prescribed by the State.
c) Aligns with the State's quality rating systems.
d) Identifies and works to eliminate barriers to
providers accessing training.
1) Authorizes the training committee's recommendations to
include, but not be limited to:
a) Ways to access federal and private funding for
training to expand capacity to existing State training
resources, such as general education classes and English
language learner classes.
b) Ways to support providers who seek to obtain
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training or higher education credentials in child
development.
c) Ways for the training program to work with existing
training providers and educational institutions,
including but not limited to resource and referral
networks, community colleges, and apprenticeship
programs.
d) Ways for the training program to make training and
education available to child care workers and other
workers employed by child care centers and schools.
1) States it is the intent of the Legislature to allocate
$1 million in the 2015 budget to carry out the initial
recommendations of the training committee, and that in
subsequent years, the recommendations of the training
committee be funded by contributions agreed to for that
purpose in the memorandum of understanding between the
provider organization and the Governor.
This bill would also require the Governor or his designee to
conduct a study, as specified, of best practices for engaging
families in their children's early care and education in family
child care settings, and of federal and other funding that could
support parental engagement efforts without reducing the
availability and affordability of child care.
This bill would also make legislative findings and declarations
on the need for quality and affordable child care and the risks
of turnover and instability in the child care system among child
care providers.
COMMENTS
1. Need for this bill?
According to the author, specific to the provisions of the
bill that are within the jurisdiction of this Committee, "The
current subsidized child care system encompasses more than 120
different agencies contracting with the state as middlemen,
who in turn administer access to the system for subsidized
families and reimburse providers who care for children whose
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families receive subsidies. Low income children have uneven
access to quality child care. Given low reimbursement rates
and a fragmented system, there is also extremely high turnover
among providers. One of the primary work-related costs that
providers struggle to afford is higher education and training
to increase their knowledge of child development and stay
current on the latest theory and practice of early education
and care."
2. Antitrust Law and the "State Action" Doctrine
As family child care home providers are self-employed, any
arrangement where the providers would get together and fix
prices and level of services would immediately encounter
antitrust difficulties. California state antitrust laws are
based on the federal Sherman Act of 1890, which prohibits
"every contract, combination, or conspiracy in restraint of
trade", as well as the Clayton Act of 1914. However, court
decisions since the creation of these antitrust laws,
particularly Parker v. Brown (317 U.S. 341) in 1943, have
acknowledged that the federal government did not intend for
antitrust laws to apply to states and their agents when those
agents are engaged in activities that are tied to a state
policy and are under some management or supervision from the
state. By explicitly stating that the formation of provider
organizations are exempted under the "state action" doctrine
in antitrust law, this bill exempts the activities of family
child care providers and their representatives from federal
and state antitrust laws.
3. Proponent Arguments :
The sponsors state that our current system of child care is
fragmented, standards vary greatly, and it is plagued by high
turnover among providers, as approximately 40% of providers
are leaving the profession each year. In addition, sponsors
note that income inequality is at the forefront of the nation
and our state. Sponsors note that, according to data from the
U.S. Census Bureau, 47% of California's poor children live in
single-mother families and that the majority of California's
single-mother households earned less than 200% of the poverty
threshold. Noting these two factors, the sponsors argue that
California must implement policies that support families in
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achieving economic stability and ensure they can access a
stable, affordable, quality child care system so that they can
find work and stay employed. Sponsors believe that SB 548
will help achieve this by creating more child care slots and
allowing childcare providers to organize, creating a more
stable workforce and allowing family child care providers to
join together on matters that affect their profession.
4. Opponent Arguments :
The National Right to Work Committee opposes SB 548, arguing
that the bill would force childcare providers to join a union,
depriving childcare providers of the right to negotiate
workplace conditions for themselves. The National Right to
Work Committee argues that allowing childcare workers to
organize will increase state costs and hurt taxpayers,
childcare providers, and the State of California.
5. Prior Legislation :
AB 101 (John Perez) of 2011 was very similar to this bill and
also authorized family child care providers to choose whether
to be represented by a single provider organization. AB 101
was vetoed by the Governor, whose veto message read:
Maintaining the quality and affordability of childcare is a
very important goal. So too is making sure that working
conditions are decent and fair for those who take care of our
children. Balancing these objectives, however, as this bill
attempts to do, is not easy or free from dispute.
Today California, like the nation itself, is facing huge
budget challenges. Given that reality, I am reluctant to
embark on a program of this magnitude and potential cost.
SUPPORT
The American Federation of State, County and Municipal
Employees, AFL-CIO (Co-Sponsor)
Service Employees International Union (Co-Sponsor)
California Labor Federation, AFL-CIO
California Women Lawyers
Courage Campaign
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Equal Rights Advocates
National Council of Jewish Women California
Special Needs Network
Western Center on Law and Poverty
9to5
OPPOSITION
National Right to Work Committee
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