BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        SB 548|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 


          Bill No:  SB 548
          Author:   De León (D)
          Amended:  6/1/15  
          Vote:     21  

           SENATE EDUCATION COMMITTEE:  7-2, 4/22/15
           AYES:  Liu, Block, Hancock, Leyva, Mendoza, Monning, Pan
           NOES:  Runner, Vidak

           SENATE LABOR & IND. REL. COMMITTEE:  4-1, 4/29/15
           AYES:  Mendoza, Jackson, Leno, Mitchell
           NOES:  Stone

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/28/15
           AYES:  Lara, Beall, Hill, Leyva, Mendoza
           NOES:  Bates, Nielsen

           SUBJECT:   Child care:  family child care providers:   
                     bargaining representatives


          SOURCE:    Service Employees International Union State Council
          
          DIGEST:   This bill gives family child care providers the right  
          to form, join, and participate in provider organizations,  
          requires, if a family child care provider organization is  
          certified, the State and the certified provider organization to  
          establish a training partnership committee to make and implement  
          recommendations regarding training resources.

          ANALYSIS:   










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          Existing law:

          1)Requires that full-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 additional children.  (Health and Safety Code §§  
            1596.78, 1596.80, and 1596.803)

          2)Allows the Superintendent of Public Instruction (SPI) 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 California Department  
            of Education (CDE) to create alternative payment providers in  
            each county to establish a reimbursement system for subsidized  
            child care.  (Education Code § 8220-8227, 8263)

          This bill:


             1)   Defines "family child care providers" as a child care  
               provider that participates in a state-funded child care  
               program and is either of the following:


                a)      A family day care home provider who is licensed.


                b)      An individual who meets both of the following:


                   i)         Provides child care in his or her own home  
                     or in the home of the child receiving care.


                   ii)         Is exempt from licensing requirements.


          Provider organizations

             2)   Gives family child care providers the right to form,  







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               join, and participate in provider organizations of their  
               own choosing for the purpose of being represented.  

             3)   Extends 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.

             4)   Creates 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.

             5)   Requires that, within 10 days of receipt of a request  
               from a provider organization, the State Department of  
               Social Services (DSS) must make available to that provider  
               organization information regarding licensed family child  
               care providers, including each provider's contact  
               information.

             6)   Requires that, within 30 days of receipt of a request  
               from a provider organization, the CDE, 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.

             7)   Requires that, upon written request of a family child  
               care provider, the CDE and the DSS must remove the family  
               child care provider's home address and telephone number  
               from the above-described lists.

             8)   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.

             9)   Provides that the Public Employment Relations Board  
               (PERB) must conduct an election to certify the provider  
               organization as the exclusive bargaining representative.   







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               PERB is also required to receive and act upon challenges,  
               petitions for unit certification, and other representation  
               issues.  A provider organization petitioning for an  
               election to be certified is required to include in its  
               petition proof of a 30% showing of interest designating the  
               provider organization to act as the exclusive  
               representative.  The provider organization must pay the  
               reasonable costs of verifying this showing of interest.

             10)  Empowers PERB to contract with a neutral third party to  
               conduct all necessary elections and other representation  
               requests.

             11)  Provides that there shall be no more than one bargaining  
               unit at any time.  A certified provider organization may  
               file a request with the PERB for an election to add  
               providers to an existing unit.

             12)  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.  
                

             13)  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  
                  nutrition programs.
                i)      The deduction of membership dues and fair share  
                  fees.







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                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.

             14)  Requires that The Governor, through the Department of  
               Personnel Administration, in consultation with the SPI,  
               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.  

             15)  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.  

             16)  Provides the child care provider organization with the  
               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.

             17)  Prohibits 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.

          Training

             18)  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 Partnership on Child Care Training, Education,  
               and Quality Improvement.  The membership of the Joint  
               Partnership is to include representatives of the certified  
               provider organization and designees of the Governor.  

             19)  Requires the partnership to make recommendations  







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               regarding, and oversee, the expenditures.  Authorizes the  
               partnership to consult with other early education and care  
               advocates, the SPI or designees, representatives of  
               community colleges, higher education institutions, resource  
               and referral networks, unions that operate training  
               programs, apprenticeship programs, and early education and  
               care employers.  Requires the certified provider  
               organization to carry out the recommendations of the  
               partnership.

             20)  Requires the partnership 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.

             21)  Requires the partnership to play a coordinating role in  
               ensuring that the training offered to providers:

                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.

             22)  Authorizes the partnership'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 expand and improve provider training and  
                  skills on subjects including but not limited to child  
                  literacy, children with special needs, and children's  
                  social and emotional development.
                c)      Ways to support providers who seek to obtain  







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                  training or higher education credentials in child  
                  development or a related field.  
                d)      Ways to work with existing training providers and  
                  educational institutions, including but not limited to  
                  resource and referral networks, community colleges, and  
                  apprenticeship programs.  
                e)      Ways to make training and education, which may  
                  include unit-bearing courses and training, available to  
                  child care workers and other workers employed by child  
                  care centers and schools.

             23)  States it is the intent of the Legislature to allocate  
               $1 million in the 2015 Budget to carry out the initial  
               recommendations of the partnership, and that in subsequent  
               years, the recommendations of the partnership be funded by  
               contributions agreed to for that purpose in the memorandum  
               of understanding between the provider organization and the  
               Governor.  

          Best practices

             24)  Requires the Governor or designee to conduct a study 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.

             25)  Requires the Governor or designee to report to the  
               Legislature and Department of Finance, by January 1, 2017,  
               with the findings and a proposed framework of priorities in  
               which to invest.  

             26)  Requires the Governor or designee, in conducting the  
               study, to consult with stakeholders, including the DSS,  
               First 5 California, and organizations that represent  
               parents with young children, particularly lower income and  
               non-English speaking families, to consider how best to  
               engage and support those families in a culturally competent  
               manner. 

          Additional child care slots

             27)  States it is the intent of the Legislature to create an  







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               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.



           Comments


          1)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.

          2)Training programs.  This bill requires the training  
            partnership 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.  According to the author,  
            existing training opportunities are limited and unavailable or  
            inaccessible to early education and care providers in many  
            areas of the state.  
          
          3)Role for the Governor.  This bill provides the Governor with a  
            significant role in designating representatives for  
            participation on the training partnership, and the development  
            of best practices.  According to the author, the goal is to  
            engage the Governor and secure his full participation in these  







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            endeavors.  The author may wish to consider expanding  
            participation on the training committee to include the DSS,  
            the Department of Education, and parents, and include  
            consultation with the CDE in the study of best practices.

          4)Additional slots.  This bill states legislative intent 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.  According to the author,  
            this bill addresses additional slots only for alternative  
            payment programs to focus on the greatest area of need, and  
            provide a balance with recent adjustments that were made for  
            other types of early education and care programs.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No
          According to the Senate Appropriations Committee, this bill  
          would impose major costs to the state attributed to various  
          state agencies being involved in the collective bargaining  
          process, potential increases in provider wages and benefits  
          derived from negotiations, potential additional child care  
          slots, the establishment of a training partnership committee,  
          the intent to provide $1 million to implement initial committee  
          recommendations, and a best practices study for parent  
          engagement.  See staff comments in the Senate Appropriations  
          Committee analysis for a full discussion of cost estimates.


          SUPPORT:   (Verified5/29/15)


          Service Employees International Union (source)
          9 to 5
          American Federation of State, County and Municipal Employees
          Berkeley City Council
          California Labor Federation
          California National Organization for Women
          Children Now
          Congressman Ted Lieu
          Consumer Attorneys of California
          Monterey County Board of Supervisors
          National Council of Jewish Women California
          Our Family Coalition







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          Special Needs Network
          St. Paul Lutheran Church
          UAW Local 2865
          UAW Local 5810
          Western Center on Law & Poverty


          OPPOSITION:   (Verified5/29/15)


          None received


          ARGUMENTS IN SUPPORT:     According to the California Labor  
          Federation, this bill helps the poorest working parents lift  
          their families out of poverty, help close the educational  
          achievement gap for low-income children, help support parents'  
          efforts to provide learning and development opportunities at  
          home, and strengthen jobs in the child care and development  
          sector.  High quality, affordable child care can help break the  
          cycle of poverty by better preparing children for school and  
          life.  A quality child care system depends upon dedicated and  
          stable providers.



          Prepared by:Lynn Lorber / ED. / (916) 651-4105
          6/1/15 18:16:48


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