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AB-641 Child care: family child care providers: bargaining representative.(2013-2014)

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Amended  IN  Senate  July 10, 2013
Amended  IN  Senate  June 17, 2013
Amended  IN  Assembly  March 19, 2013

CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Assembly Bill No. 641


Introduced by Assembly Member Rendon
(Coauthors: Assembly Members Ammiano and Bradford)

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, and to add Section 1596.811 to the Health and Safety 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 California Child Day Care Facilities Act, provides for the licensure and regulation of family day care homes by the State Department of Social Services. 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, including, among others, resource and referral programs, alternative payment programs, and family child care home education networks.
This bill would authorize family child care providers, as defined, to choose whether to be represented by a single form, join, and participate in the activities of provider organization, organizations, as defined, that would be designated and to seek the certification of a provider organization to act as the exclusive representative for family child care providers on matters related to child care subsidy programs 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, consisting of 11 members, to (A) advise, and make recommendations to, the Governor and any certified provider organization on certain issues, and (B) make specified recommendations would provide for the reimbursement of members of the committee for related travel expenses.
The bill would require the State Department of Social Services and the State Department of Education, with the 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. establish the scope of representation of the certified provider organization, and would require the Governor, through the Department of Human Resources, in consultation with the Superintendent of Public Instruction and other entities, to meet and confer in good faith with the certified provider organization on all matters within that scope of representation. The bill would require the parties to jointly prepare a memorandum of understanding if agreement is reached, which would be binding on all state departments and agencies, and their contractors and subcontractors, that are involved in the administration of child care subsidy programs. The bill would authorize the Governor, through the Department of Human Resources, and the certified provider organization, parties, 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.
The bill would authorize a certified provider organization to enter into an agreement with the state regarding deduction of membership dues and fair share fees from subsidy payments made to providers, and would prohibit provider organizations and the state, as defined, from calling strikes and from interfering with, intimidating, restraining, coercing, or discriminating against a family child care provider for joining or refusing to join a provider organization.
The bill would require the State Department of Education to require all resource and referral agencies to provide, without charge, workshops to family child care providers that include, among other things, training on child development and literacy, and to provide copies of curricula, frameworks, and introductory materials related to childhood education endorsed or published by the State Department of Education.
The bill would require the State Department of Social Services to consult with a stakeholder group, as specified, regarding ways to ensure the most effective implementation of safety standards for family child care homes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   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 dollars ($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 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 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 of 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 educational 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 State 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, 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 state child care subsidy program will permit the state to benefit from the experience and recommendations of families who rely on the state child care subsidy program.
(k) Research demonstrates that substantive orientation training for family child care providers, accompanied by educational material, and the opportunity for family child care providers to give formal feedback to oversight agencies are effective ways to improve quality outcomes among family child care providers and children. For example, a survey in Oregon found that license-exempt child care providers who attended an orientation training and received a toolkit were 44 percent more likely to read to their children five or more times a week than before they had attended the orientation training and received the toolkit.
(l) While many resource and referral agencies make high-quality training opportunities available to family child care providers, including through the California Child Care Initiative Project, these opportunities are not available to all family child care providers. Requiring that high-quality training be made available to family child care providers at convenient times and in community-based locations on topics such as child development and literacy will increase the quality of care provided and maximize the state’s return on its investment in the child care system.
(m) Establishing a stakeholder group of family child care providers and parents whose children participate in family child care to consult with the State Department of Social Services and the State Department of Education regarding best practices to ensure the well-being of children, including, but not limited to, the most effective implementation of safety standards and training, will also improve the quality of care provided to California’s children.

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 known, and may be cited, 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 both 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, with particular consideration given to parents who are involved with, or have received training from, organizations focused on child care advocacy or made up of parents whose children receive child care. 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 shall appoint five parent or guardian members to the committee.
(c) The Speaker of the Assembly, and the Senate Committee on Rules shall each appoint two parent or guardian members to the committee.
(d) The committee members shall serve three-year terms.
(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.
(f) 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, and for ensuring that families are informed of their rights and eligibility for benefits under the child care subsidy programs of the state. These strategies shall include recommendations relevant 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, email 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, email 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 educational system.
(k) Expanded access to the subsidized family child care system subsidy program 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.

8438.
 (a) To ensure that family child care providers have the opportunity to receive substantive training on topics such as child development and literacy and on other resources available to family child care providers and the families they serve, the department shall require all resource and referral agencies to provide in-person introductory workshops to all family child care providers in that region who participate in child care subsidy programs. Other child care providers and parents who participate in child care subsidy programs may also be invited to attend the provider workshops.
(b) A provider workshop shall be offered without charge to family child care providers, at times and in community-based settings that are convenient and accessible, with a particular focus on making the workshops accessible to family child care providers serving children who are English learners.
(c) If a substantial number of the family child care providers participating in child care subsidy programs in a county are non-English speaking, some provider workshops, including written material distributed at the workshops, shall be provided in the languages spoken by a substantial number of family child care providers, in order to facilitate full participation from all providers.
(d) Alternatives to in-person provider workshops shall be offered on a case-by-case basis for family child care providers who have been unable to attend a scheduled workshop within two years after the workshop is first offered, or within six months after the family child care provider begins participating in the child care subsidy program.
(e) A provider workshop shall include all of the following:
(1) Training on child development and literacy, including best practices on how to align early education with standards for kindergarten and grades 1 to 5, inclusive.
(2) Providing attendees with copies of curricula, frameworks, and introductory materials related to childhood education that are published or endorsed by the department.
(3) Information on resources available to family child care providers and the children and families they serve, including the federal Child and Adult Care Food Program, the state early intervention system, First 5 county commissions, and alternative payment programs. This information may be delivered through brief presentations by representatives of those organizations.
(4) An opportunity for family child care providers to provide input and feedback on the workshop.
(f) A provider workshop may also include the following:
(1) Training on all of the following:
(A) Setting up a family child care home to create an enriching environment for children.
(B) Creating a routine for children.
(C) Creating a curriculum.
(D) Involving parents in their children’s early education and care.
(2) Information on bilingual teaching practices.
(3) Information on available training and professional development opportunities, including those offered by local resource and referral agencies, community colleges, and in association with First 5 county commissions.
(4) Opportunities for coaching or mentoring by early childhood professionals, including other family child care providers.
(5) Information on the state’s licensing system for family child care providers, including how to become a licensed provider, and how providers are informed of licensing rules and regulations.
(g) If there is a certified provider organization, it shall be permitted to make a brief presentation at the provider workshops.
(h) The implementation of this section is contingent upon appropriation of funds for purposes of this section in the annual Budget Act.
(i) The curricula and other materials required to be distributed to family child care providers participating in child care subsidy programs pursuant to paragraph (2) of subdivision (e) shall also be provided to all licensed family child care providers, including those who do not participate in child care subsidy programs, either by mail or electronic mail. The department shall work with the State Department of Social Services to distribute these materials.
(j) The Superintendent may adopt rules and regulations to set standards regarding the introductory core provider workshops required pursuant to this section.

SEC. 3.

 Section 1596.811 is added to the Health and Safety Code, to read:

1596.811.
 (a) The department shall consult with a stakeholder group made up of up to four family child care providers, up to four parents or guardians of children who attend or have attended family child care, and the State Department of Education regarding ways to ensure the most effective implementation of safety standards for family child care homes.
(b) The family child care provider participants in the stakeholder group shall be designated by the provider organization certified pursuant to Section 8434 of the Education Code, or, if no provider organization has been certified, by the Governor.
(c) The parent or guardian participants shall be designated by the Family Child Care Parent Advisory Committee established by Section 8431.3 of the Education Code.