BILL ANALYSIS Ó
AB 101
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GOVERNOR'S VETO
AB 101 (John A. Pérez)
As Amended September 2, 2011
2/3 vote
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|ASSEMBLY: | |(February 22, |SENATE: |23-15|(September 8, 2011) |
| | |2011) | | | |
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(vote not relevant)
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|COMMITTEE VOTE: |5-2 |(September 8, 2011) |RECOMMENDATION: |Concur |
|(L. & E.) | | | | |
| | | | | |
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|ASSEMBLY: | |(September 9, | | | |
| |51-27|2011) | | | |
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Original Committee Reference: Not applicable
SUMMARY : Authorizes family child care providers to form, join and
participate in "provider organizations" for purposes of negotiating
with state agencies on specified matters.
The Senate amendments delete the contents of the bill and instead
authorize family child care providers to form, join and participate
in "provider organizations" for purposes of negotiating with state
agencies on specified matters. Specifically, the Senate amendments :
1)Define a "family child care provider" or "provider" as either of
the following:
a) A family child care provider that is licensed.
b) An individual who provides child care in his or her home or
in the home of the child receiving care, is exempt from
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licensing requirements, and participates in a child care
subsidy program.
2)Define a "provider organization" as an organization that has all
of the following characteristics:
a) The organization includes family child care providers.
b) The organization has as one of its main purposes the
representation of family child care providers in their
relations with public and private entities in the state.
c) The organization is not an entity that contracts with the
state or a county to administer or process payments for a child
care subsidy program.
3)Provide that family child care providers have the right to form,
join and participate in the activities of provider organizations
of their own choosing for purposes of representation on specified
matters.
4)Specify that family child care providers are not public employees,
and that this bill does not create an employer-employee
relationship between family child care providers and the state or
any other entity. This bill does not change the child care
providers' status as independent business owners or classify child
care providers as public employees.
5)Provide that the "state action" antitrust exemption to the
application of federal and state antitrust laws is applicable to
the activities of family child care providers and their
representatives.
6)Specify that the scope of representation shall include all of the
following:
a) The administration of laws and regulations governing
licensing for providers.
b) Joint labor-management committees.
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c) Contract grievance arbitration.
d) Expanded access to professional development and training
opportunities for providers.
e) Benefits for providers.
f) Payment procedures for child care subsidy programs.
g) Reimbursement rates for providers participating in a child
care subsidy program. However, at the Governor's option, the
scope of representation may exclude this issue until July 1,
2014.
h) Expanded access to food and nutrition programs.
i) The deduction of membership dues and fees.
j) Any other changes to current practice that would result in
specified improvements to the child care system.
7)Require the Department of Social Services to make available to a
provider organization, upon request, the name, address, telephone
number and other information regarding child care providers, as
specified.
8)Establish a petition and election process for the selection of
provider organizations, to be administered by the Public
Employment Relations Board (PERB), as specified.
9)Provide that there shall be no more than one bargaining unit at
any time, and that unit shall be represented by no more than one
certified provider organization.
10)Require a provider organization to represent all family child
care providers in the unit fairly and without discrimination and
without regard to whether the providers are members of the
provider organization.
11)Require the Governor, through the Department of Personnel
Administration, to meet and confer in good faith regarding all
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matters within the scope of representation. "Meet and confer in
good faith" means the parties have the mutual obligation
personally to meet and confer promptly upon request by either
party and continue for a reasonable period of time. The duty to
meet and confer in good faith also requires the parties to begin
negotiations sufficiently in advance of the adoption of the
state's final budget for the ensuing year.
12)Require any agreement reached to be reflected in a written
memorandum of understanding, which will be binding on all state
departments and agencies that are involved in the administration
of child care subsidy programs, and the relevant contractors or
subcontractors of those departments and agencies.
13)Authorize a provider organization to enter an agreement with the
state regarding the payment of dues, as specified.
14)Prohibit a provider organization from directing or calling a
strike.
15)Enact related and conforming changes.
16)Make related legislative findings and declarations.
EXISTING LAW :
1 Authorizes the Superintendent of Public Instruction to develop
standards for quality child care programs and to enter into
contracts with child care centers and family child care homes for
the provision of child care and development services. Family
child care is provided by someone who resides in the home where
care is provided.
2) Establishes a reimbursement system for subsidized child care in
which:
a) Parents can choose a licensed center or family child care
home, and the state reimburses the provider the same rate that
the provider charges a family who is not subsidized, up to a
ceiling established by the state.
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b) Parents can choose a provider who is not required to be
licensed (usually a relative, neighbor or friend), and the
state reimburses that provider a rate set within each county
based on the mean cost of licensed care in the county.
c) Parents can enroll their children in a center or network of
family child care homes that has a direct contract with the
State Department of Education. Child care in these programs is
reimbursed at a daily rate established in the contract. For
most contractors, the daily rate is the Standard Reimbursement
Rate, set in statute and adjusted by the Legislature to reflect
changes in the cost of living.
d) The daily rate for direct contractors is adjusted by a
statutory formula for infants, school-aged children, children
with disabilities, children at-risk of abuse or neglect,
children who have limited English proficiency and children who
spend less than six hours per day in care or more than
eight-and-one-half hours per day in care.
AS PASSED BY THE ASSEMBLY , this bill expressed the intent of the
Legislature to enact statutory changes relating to the 2011 Budget
Act.
FISCAL EFFECT : Unknown
COMMENTS : This bill is jointly sponsored by the American Federation
of State, County and Municipal Employees (AFSCME) and the Service
Employees International Union (SEIU). This bill authorizes family
child care providers to form, join and participate in "provider
organizations" for purposes of negotiating with state agencies on
specified matters. The bill states that its purpose is to "promote
quality, access, and stability in the child care system by
authorizing an appropriate unit of family child care providers to
choose a provider organization to act as their exclusive
representative on all matters" within the scope of representation as
defined in the bill. The bill also states that it is intended to
promote full communication between providers and the state by
permitting a provider organization to meet and confer with the state
regarding the state's child care system.
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Specifically, the bill seeks to allow family child care providers to
engage in specified collective activity under the "state action
doctrine" to federal and state antitrust laws. The "state action"
doctrine recognizes that the federal government did not intend to
supersede the authority of the states through antitrust regulation.
A recent report by the National Women's Law Center discussed recent
developments in other states to authorize home-based child care
providers to join unions and negotiate with the state for better
compensation and working conditions. The report noted that
home-based child care providers are not in a traditional employer-
employee relationship that permits them to unionize. Most are
independent contractors and need special legal authority to organize
into unions that can bargain with the state over rates, benefits,
and similar matters.
According to the report, 14 states have authorized child care
providers to organize and negotiate with the state. This includes
Illinois, Washington, Oregon, Iowa, New Jersey, Michigan, Wisconsin,
New York, Pennsylvania, Kansas, Maryland, Ohio, Maine and New
Mexico.
This bill is similar, but not identical to SB 867 (Cedillo) of 2008.
SB 867 was vetoed by Governor Schwarzenegger. Other similar prior
legislation includes AB 1164 (De Leon) of 2007 (which was vetoed by
Governor Schwarzenegger), SB 697 (Kuehl) of 2006 (which was vetoed
by Governor Schwarzenegger), SB 1600 (Kuehl) of 2006 (which was held
under submission by the Senate Appropriations Committee), and SB
1897 (Burton) of 2004 (which was vetoed by Governor Schwarzenegger).
GOVERNOR'S VETO MESSAGE :
"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
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program of this magnitude and potential cost."
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
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