(1)Existing law establishes the In-Home Supportive Services (IHSS) program, which is administered by the State Department of Social Services, counties, and other entities, under which qualified aged, blind, or disabled persons are provided with supportive services in order to permit them to remain in their own homes.

Existing law authorizes a county board of supervisors to elect to contract with a nonprofit consortium to provide for the delivery of in-home supportive services or to establish, by ordinance, a public authority to provide for the delivery of those services, in accordance with certain procedures. Existing law deems a public authority created under these provisions to be the employer of in-home supportive services personnel under the Meyers-Milias-Brown Act, which governs labor relations between local public employers and employees. Existing law also deems a nonprofit consortium contracting with a county to be the employer of in-home supportive services personnel for purposes of collective bargaining over wages, hours, and other terms and conditions of employment. Existing law grants recipients of in-home supportive services the right to hire, fire, and supervise the work of any in-home supportive services personnel providing services for them.

Existing law prohibits the state and specified local public employers from deterring or discouraging public employees from becoming or remaining members of an employee organization. Existing law also requires specified public employers to provide exclusive employee representatives access to new employee orientations. Existing law generally grants the Public Employment Relations Board jurisdiction over violations of these provisions. Existing law defines public employers who are subject to these provisions as including, among others, public agencies, cities, counties, and districts.

This bill would expand the definition of public employer, for purposes of those provisions, to include an employer who is subject to the In-Home Supportive Services Employer-Employee Relations Act, which the bill would create. The bill would establish a method for resolving disputes regarding wages, benefits, and other terms and conditions of employment between the state and recognized employee organizations representing independent providers. The bill would provide for the right of employees, also known as individual providers under the act, to form, join, and participate in activities of employee organizations for the purposes of representation on all matters within the scope of employee organizations. The bill would define employee or individual provider for these purposes to mean a person authorized to provide in-home supportive services pursuant to the individual provider mode or waiver personal care services, as prescribed.

For purposes of collective bargaining, the bill would deem the state to be the employer of record of individual providers in each county. The bill would grant the in-home supportive services recipient with the right to hire, fire, and supervise the work of the individual providers providing services to them. Among other things, the bill would specify that individual providers employed by a predecessor agency before the effective date of the act shall retain employee status and not be required by the state to requalify to receive payment for providing in-home supportive services.

Among other things, for purposes of collective bargaining, the bill would provide that existing bargaining units consisting of individual providers in a single county that are represented by the same recognized employee organization shall be deemed merged into the largest possible multicounty bargaining units represented by that employee organization, upon the effective date of this act. In counties where no recognized employee organization exists as of the effective date of the act, the bill would specify that a bargaining unit consisting of all employees in that county shall be deemed an appropriate unit for collective bargaining. Under the bill, if individual providers in a county bargaining unit are represented by a recognized employee organization on the date of the act, the state would be deemed the successor employer of the predecessor agency for purposes of negotiating a collective bargaining agreement, subject to the obligation to meet and confer in good faith and meet other related legal requirements.

The bill would require all recognized employee organizations, as of the effective date of the act, to negotiate jointly on behalf of all bargaining units they represent to reach a single memorandum of understanding with the employer. The bill would authorize the memorandum of understanding to contain addenda reflecting regional or county-level terms and conditions. The bill would establish procedures for voting and ratification of a memorandum of understanding, and for the employer to assume a predecessor agencys rights and obligations under a memorandum of understanding or agreement between a predecessor agency and a recognized employee organization that is in effect on the date of the bills enactment.

The bill would prescribe the duties of the state under the act, including requiring the Governor to meet and confer in good faith, and to follow specified procedures regarding collective bargaining. If an agreement is reached by a representative of the Governor and the recognized employee organizations, the bill would require those parties to jointly prepare a written memorandum of understanding and present it to the Legislature for determination by majority vote. The bill would require the Governor, for any side letter, appendix, or other addendum to a memorandum of understanding that requires the expenditure of $250,000 or more related to salary and benefits not included in the original memorandum or the Budget Act, to provide that to the Joint Legislative Budget Committee, as specified. The bill would also establish mediation and arbitration procedures that would apply when the parties fail to reach an agreement.

The bill would make certain actions by an employer and other entities involved in administering the IHSS program unlawful, including imposing or threatening to impose reprisals on employees or otherwise interfering with the exercise of their rights. The bill would authorize the Public Employment Relations Board to adopt reasonable rules and regulations pursuant to the act, including the adoption of emergency regulations, as prescribed.

(2)Existing law requires the Controller to provide for the administration of payroll deductions and salary reductions, and authorizes the Controller to establish procedures for that purpose.

The bill would require the Controller to honor a written authorization for payroll deductions executed by an employee before the effective date of the act, and to make deductions for payments of dues to a recognized employee organization pursuant to the act consistent with the above-described payroll deduction procedures.

(3)Existing law, the California Public Records Act, requires public records to be open to inspection at all times during the office hours of the state or local agency that retains those records, and provides that every person has a right to inspect any public record, except as provided. Existing law provides that certain information regarding persons paid by the state to provide in-home supportive services, or other related public services, are not subject to disclosure under the act. Existing law further provides that copies of names, addresses, home telephone numbers, and other identifying information are required to be made available, upon request, to an exclusive bargaining agent and to any employee organization seeking representation rights under specified collective bargaining provisions.

With respect to the above-described personal identifying information, this bill would instead require this information to be made available to the exclusive bargaining agent and any employee organization seeking representation under the In-Home Supportive Services Employer-Employee Relations Act. The bill would require the state, or a county, public authority, or nonprofit consortium organized pursuant to the IHSS program, to promptly make the information available to the requesting entity.

The bill would revise the IHSS program provisions to require the state to assume responsibilities as set forth in the act. The bill would also require a county or city and county to continue to have certain IHSS program-related functions set forth in county ordinance or contract performed in accordance with specified provisions.

(4)Existing law requires prospective providers of in-home supportive services to complete an in-person provider orientation at the time of enrollment that is developed by the department, in consultation with counties, that includes requirements to be an eligible IHSS provider and other related matters.

This bill additionally would require that in-person provider orientation include any other information required to be communicated to prospective providers by a memorandum of understanding, appendix, or side letter between recognized employee organizations and the state. The bill would make other related changes to these provisions.

By imposing new duties on local government officials, the bill would impose a state-mandated local program.

(5)The bill would include findings that changes proposed by this bill address a matter of statewide concern and, therefore, apply to all counties.

(6)The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

(7)Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

(8)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

ASSEMBLY THIRD READING

ATR Bill Id:AB 1672

Author:(Haney)

As Introduced Ver:February 17, 2023

Majority vote

SUMMARY

Establishes the In-Home Supportive Services Employer-Employee Relations Act (IHSSEERA) as a method for resolving disputes regarding wages, benefits, and other and terms and conditions of employment between the state and recognized employee organizations representing independent In-Home Support Services (IHSS) providers.

Major Provisions

1. Establish the purpose of the act, including employee rights to form, join, and participate in the activities of a union for the purpose of representation on all matters within the scope of representation, and that employees also to have the right to refuse association with an employee organization.
2. Establish the state as the employer of record of IHSS providers, including successor employer of a predecessor agency for the purposes of negotiating a collective bargaining agreement, in each county, and that IHSS service recipients must maintain the right to hire, fire, and supervise the work of IHSS providers providing services to them, and recognition and merging of bargaining units of IHSS providers in a single county that are represented by the same recognized employee organization.
3. Provide for collective bargaining; the structure and manner in which negotiation is to occur, including joint negotiations; memorandum of understanding/agreement (MOU/A); assumption of the terms of a MOU/A by the employer of predecessor agency, and certain other prescribed rights and obligations relating to employer-employee relations.
4. Establish that the provisions of this bill must not be a cause for the employer or predecessor agency to modify or eliminate existing MOU's/A's, wages, benefits, or other terms and conditions of employment, wages, benefits, or other terms and conditions of employment, but allows for the modification of existing wages, benefits, or other terms and conditions of employment through the meet and confer in good faith process, or, through appropriate procedures in situations where employees are not represented by a recognized employee organization.
5. Require the employer to give 90 days' notice to the county of the agreed upon changes, if the employer and recognized employee organization negotiate changes to locally administered health benefits for IHSS providers.
6. Establish that the IHSSEERA is within the jurisdiction of the Public Employment Relations Board (PERB) as prescribed, and include provisions relating to the processes, procedures, and timelines for challenges to, or appeals of, decisions or orders of the PERB, and petitions for a writ of extraordinary relief from PERB decisions or orders.
7. Establish the process, timeline, and determination by the Joint Legislative Budget Committee or Legislature, as applicable, of side letters, appendices, or addenda to an original properly ratified MOU and relating expenditures, as provided; and, adoption of a MOU/A by the Legislature if an agreement is reached between representatives of the Governor and the recognized employee organization.
8. Provide for mediation in the event that the employer and recognized employee organization fail to reach agreement, and the responsibility for costs of mediation, and the process and procedures for arbitration, in the event that after all mediation procedures have been exhausted and no agreement has been reached between the parties.
9. Make various substantive conforming changes to existing law under the Welfare and Institutions Code for these purposes. as follows:
10. Add a requirement that the state must assume the responsibilities of the IHSSEERA, as provided, on the effective date of the act;
11. Add a requirement that a count, or city and county, do any one of the following: (i) continue to have its public authority perform certain functions, as provided; (ii) continue to have the entity perform the functions in the existing contract at the time of notification, as provided; or (iii) assume the functions performed by an entity or public authority.
12. Authorize a county, or city and county, to assume certain functions to either: (i) contract for the performance of any or all of the functions assumed; (ii) contract with an entity for the performance of any or all functions assumed, as provided; or, (iii) establish a public authority for the performance of any functions assumed, as provided.
13. Include a severability clause to shield otherwise valid provisions and the application of the law from becoming invalid, if certain provisions are later deemed to be invalid.

COMMENTS

1. What is the IHSS Program and What Do IHSS Providers Do?

The IHSS program helps to pay for services provided to an individual so that they can safely remain in their own home. To be eligible for IHSS services, a person must be 65 years of age and older, or disabled, among other criteria, and disabled children also are potentially eligible for IHSS services. The IHSS program is considered an alternative to out-of-home care, such as nursing homes or board and care facilities.

For this program, county social workers currently determine eligibility for IHSS after conducting a standardized in-home assessment, and periodic reassessments, of an individual's ability to perform specified activities of daily living. Once eligible, recipients are responsible for hiring, firing, directing and supervising their own IHSS provider or providers. The counties or local public authorities must conduct a criminal background check and provide an orientation before a provider can receive payment. Local public authorities are designated as "employers of record" for collective bargaining purposes, while the state administers payroll, workers' compensation, and benefits.

Generally, the providers of these services are family members of the IHSS program participant; however, this is not exclusive as program participants can also choose a provider from a list of local (i.e., county) providers for care. IHSS providers perform a range of necessary tasks for recipients such as cleaning, bathing, other healthcare, cooking, providing social interaction, assistance with errands, and other numerous common day-to-day living activities or responsibilities.

1. Brief History of the Former IHSSEERA

Historically, IHSS providers and their exclusive representatives negotiate at the local level (i.e., county or local public authority) under the Meyers-Milias-Brown (MMBA) on matters involving employment relations relating to the IHSS program. Because of a dissimilar approach or philosophy, and inconsistent outcomes among the various counties in their employer-employee relations regarding this program, including achieving a memorandum of understanding or agreement with represented IHSS providers and their exclusive representatives, exclusive representatives of IHSS providers sought a uniform approach to employer-employee relations and collective bargaining in support of establishing the former IHSSEERA, which was enacted in 2012.

Generally, among other things, the former IHSSEERA only covered eight counties and established the IHSS Statewide Authority to serve as the employer of record of IHSS providers for purposes of collective bargaining in several Coordinated Care Initiative (CCI) demonstration counties, while the recipient of IHSS services retained rights as an employer (i.e., hire, direct, supervise, and terminate) of the provider prior to, and after, the IHSSEERA transition of collective bargaining from the MMBA to the state for those counties. As the employer of record for IHSS providers, the former IHSS Statewide Authority was responsible for employer-employee relations. Thus, the responsibility for collective bargaining was largely removed from those counties. In 2017, the original IHSSEERA was repealed, which returned responsibility for employer-employee relations and collective bargaining to the local level under the MMBA.

1. Equity Solutions and Maximizing Benefits for Underserved and Marginalized Communities

Pursuant to House Resolution (HR) 39 (Gipson, 2021), to continue the Assembly's commitment to investing in equity solutions and maximizing benefits for underserved and marginalized communities, legislative analyses of the Assembly must discuss the equity impact that a bill will, or may, have on such communities, if any.

This bill does not present a particular focus towards addressing equity in relation to maximizing benefits for underserved or marginalized communities as articulated in HR 39. However, under a broader context, the author states that, "IHSS providers and their recipients are a very diverse and marginalized population. The IHSS program is specifically meant to provide care to low-income adults who are aging and individuals living with disabilities to allow them to receive care safely in their homes with comfort and dignity."

1. Please see the policy committee analysis for a full discussion of this bill.

According to the Author

"Without secure contracts for workers, the State estimates that we will face an IHSS caregiver shortage due to the rapid growth in California's senior population and the low wages of IHSS workers. Existing problems in the IHSS collective bargaining process have resulted in workers being denied a fair wage. While the average living wage in California is $43.44 per hour, the average IHSS worker makes only $16.46 per hour. The current structure of the IHSS collective bargaining process is not conducive to establishing a living wage standard for these essential workers, or filling the impending long-term care shortage. To provide for our essential workers and ensure that IHSS recipients receive the care they need, [this bill] would allow IHSS providers and employers to negotiate their contracts and wages at a State level instead of at the county level."

Arguments in Support

Among other things, the American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO states that, "… the IHSS program is designed to provide in-home assistance to low-income adults who are aging and individuals living with disabilities to allow them to receive care safely in their homes with comfort and dignity. This program employs 6000,000 IHSS providers and serves over 690,000 recipients. The fragmented nature of the IHSS program as a county-administered program is not conducive to standardizing an equitable living wages across this industry. [This bill] will help transition collective bargaining from the local level to the statewide level… to streamline the collective bargaining process, professionalize the IHSS workforce by providing livable wages and benefits, ensure more equitable distribution of long-term care funds, and allow the state to meet its long-term care demands."

Arguments in Opposition

Registering a position of "pending"as to this bill, a coalition letter from the California Association of Public Authorities for IHSS, the California State Association of Counties, and the California Welfare Directors Association states in part that, "[e]xisting law deems a Public Authority as the employer of record for the purposes of collective bargaining for IHSS providers. This bill establishes the [IHSSEERA], which would shift collective bargaining for IHSS providers to the state. If collective bargaining transfers to the state, it should do so in a manner that works effectively for all entities involved." In its written correspondence, the coalition also identified several key areas in this bill in which it is collaboratively engaging with the author to resolve items of concern.

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill would result in the following:

1. Ongoing, likely significant, General Fund costs to the state to the extent that state and recognized employee organizations representing IHSS providers collectively bargain increased wages and benefits for IHSS providers. The state has over 600,000 IHSS providers.
2. Ongoing General Fund costs in the low millions of dollars annually to the California Department of Social Services for at least 10 staff to administer the requirements of this bill. Specifically, to establish a state collective bargaining team and to administer changes in the policies and procedures in the IHSS program, including curriculum changes in the provider orientation and potential programming changes to the Case Management, Information and Payrolling System.
3. Ongoing costs to local entities administering IHSS programs, to the extent they are required to implement any collectively bargained provisions locally, such as IHSS provider trainings.

The state would need to reimburse these costs to local entities, if the Commission on State Mandates determines the bill's requirements to be a reimbursable state mandate.

VOTES

ASM PUBLIC EMPLOYMENT AND RETIREMENT: 6-0-1

YES: McKinnor, Lackey, Addis, Haney, Stephanie Nguyen, Schiavo

ABS, ABST OR NV: Vince Fong

ASM APPROPRIATIONS: 13-1-2

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Ortega

NO: Dixon

ABS, ABST OR NV: Megan Dahle, Robert Rivas

UPDATED

VERSION: February 17, 2023

CONSULTANT: Michael Bolden / P. E. & R. / (916) 319-3957 FN: 0000514

Date of Hearing: May 3, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1672

Author:(Haney) – As Introduced Ver:February 17, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill creates the In-Home Supportive Services Employer-Employee Relations Act (ACT), which shifts collective bargaining over In-Home Support Services (IHSS) provider wages, benefits, and conditions of employment from the local level to the state level.

FISCAL EFFECT:

1. Ongoing, likely significant, General Fund costs to the state to the extent that state and recognized employee organizations representing IHSS providers collectively bargain increased wages and benefits for IHSS providers. The state has over 600,000 IHSS providers.
2. Ongoing General Fund costs in the low millions of dollars annually to the California Department of Social Services for at least 10 staff to administer the requirements of this bill. Specifically, to establish a state collective bargaining team and to administer changes in the policies and procedures in the IHSS program, including curriculum changes in the provider orientation and potential programming changes to the Case Management, Information and Payrolling System.
3. Ongoing costs to local entities administering IHSS programs, to the extent they are required to implement any collectively bargained provisions locally, such as IHSS provider trainings.

The state would need to reimburse these costs to local entities, if the Commission on State Mandates determines the bill’s requirements to be a reimbursable state mandate.

COMMENTS:

1. Purpose. According to the co-sponsor of this bill, United Domestic Workers/American Federation of State, County & Municipal Employees Local 3930, which represents over 165,000 IHSS providers and family childcare providers:

The fragmented nature of the IHSS program as a county-administered program is not conducive to standardizing an equitable living wage across this industry. While a number of successful bargaining agreements have been reached in various counties throughout the state, many IHSS providers live in counties with limited budgetary resources and/or a lack of local support to invest in the program.

Transitioning collective bargaining from the local level to the statewide level within the Governor's administration will help to streamline the bargaining process, professionalize the IHSS workforce by providing livable wages and benefits, ensure more equitable distribution of long-term care funds, and allow the state to meet its long-term care demands. Change is long overdue within the IHSS program, and it is time for California to uplift and empower those individuals caring for our loved ones and most vulnerable communities.

1. IHSS. The IHSS program is designed to provide in-home assistance to low-income adults who are aging and individuals living with disabilities to allow them to receive care safely in their homes. To be eligible for IHSS services, a person must be 65 years of age or older, or disabled, among other criteria. Disabled children also are potentially eligible for IHSS services. Generally, the providers of these services are family members of the IHSS program participant, however, participants can also choose a provider from a list of local providers. The program currently employs just over 600,000 IHSS providers and serves over 690,000 recipients.
2. IHSS Pay and Collective Bargaining. IHSS provider wages and benefits are funded through a mix of federal, state, and local funds. The federal government has a share of cost based on the Medi-Cal Federal Medical Assistance Percentage. Beyond this allocation to IHSS providers, the state covers the nonfederal share for state’s minimum wage increases and local entities pay the remaining costs for locally negotiated increase above the state minimum wage. IHSS provider wages vary across California from the minimum wage of $15.50 in Kern County to $19.25 in San Francisco County. The median IHSS provider wage in California is $16.46.

In 2017, IHSS provider employer-employee relations and collective bargaining were transferred from the state level back to the local level. Currently, local public authorities are designated as “employers of record” for the collective bargaining purposes of IHSS providers, while the state administers payroll, workers’ compensation, and benefits.

This bill shifts collective bargaining for IHSS providers from the local level to the state level. For this reason, the bill appears to shift any future wage and benefit increases for IHSS providers to the state.

Analysis Prepared by: Natasha Collins / APPR. / (916) 319-2081

Date of Hearing: April 12, 2023

ASSEMBLY COMMITTEE ON PUBLIC EMPLOYMENT AND RETIREMENT

Tina S. McKinnor, Chair

ABPCA Bill Id:AB 1672 (

Author:Haney) – As Introduced Ver:February 17, 2023

SUBJECT: In-Home Supportive Services Employer-Employee Relations Act

SUMMARY: Establishes the In-Home Supportive Services Employer-Employee Relations Act (IHSSEERA) as a method for resolving disputes regarding wages, benefits, and other and terms and conditions of employment between the state and recognized employee organizations representing independent In-Home Support Services (IHSS) providers, among other provisions. Specifically, this bill:

1. Establishes that the provisions of the Prohibition on Public Employers Deterring or Discouraging Union Membership (PEDD) apply. (Section 3552.)

The PEDD makes it unlawful for public employers to deter or discourage public employees or applicants to be public employees from: a) becoming or remaining members of an employee organization; b) authorizing representation by an employee; or, c) from authorizing dues or fee deductions to an employee organization, apply.

1. Establishes that the provisions of the Public Employee Communications Chapter (PECC) apply. (Section 3555.5.)

The PECC gives exclusive representatives of public employees specific rights designed to provide them with meaningful access to, and the ability to effectively communicate with, their represented members, apply.

1. Establishes the purpose of the act to: a) promote full communication between the state and the recognized employee organizations representing IHSS providers; b) resolve disputes regarding wages, benefits, and other terms and conditions of employment, as provided, c) promote improvement of personnel management and employer-employee relations with the public authority by providing a uniform basis for recognizing specified rights of IHSS providers; d) that it is intended to strengthen employer-employee relations through a uniform and orderly method of communication between the recognized employee organizations and the state; however, the act is not intended to require changes to existing bargaining units or memoranda of understanding or agreement (MOU/A). (Section 110001.)
2. Establishes employee rights to form, join, and participate in the activities of a union for the purpose of representation on all matters within the scope of representation, and that employees also to have the right to refuse association with an employee organization. (Section 110002.)
3. Provides for these purposes, as specified, transitional provisions relating to: (Sections 110005 through 110011, inclusive.)
4. Establishing the state as the employer of record of IHSS providers, including successor employer of a predecessor agency for the purposes of negotiating a collective bargaining agreement, in each county, as specified, and that IHSS service recipients must maintain the right to hire, fire, and supervise the work of IHSS providers providing services to them. (Sections 110005 and 110008.)
5. Establishing employee status and clearance of employees, as provided. (Section 110006.)
6. Recognition, and merging, of bargaining units of IHSS providers in a single county that are represented by the same recognized employee organization, as provided. (Section 110007, inclusive.)
7. Collective bargaining and the structure in which negotiation is to occur, including joint negotiations; obligations of employee organizations; and, memoranda of understanding or agreement (MOU/A), including a single MOU/A with the employer; addenda to a MOU/A reflecting regional or county-level terms and conditions; and, requirements relating to employee organization/IHSS provider ratification of a MOU/A. (Section 110009 (a), inclusive.)
8. Authority for the employer and employee organizations recognized by predecessor agencies to meet before the effective date of the IHSSEERA to negotiate a MOU/A (which would become effective after the effective date of the IHSSEERA). (Section 110009 (b).)
9. Assumption by the employer of predecessor agency rights and obligations contained in a MOU/A, including the duration of the MOU/A, and if a MOU/A has expired and not replaced by a new MOU/A on the effective date of the IHSSEERA, employer assumption of the obligation to meet and confer in good faith with the recognized employee organization; a prohibition to reduce the terms and conditions within a MOU/A, except by mutual agreement between the recognized employee organization and the employer. (Section 110009 (c) and (d).)
10. A requirement that the State Controller is obligated to continue to honor written authorization for payroll deductions executed by an IHSS provider, as stipulated. (Section 110009 (e).)
11. That the provisions of this bill must not be a cause for the employer or predecessor agency to modify or eliminate existing MOU’s/A’s, wages, benefits, or other terms and conditions of employment, except as otherwise expressly provided, but allows for the modification of existing wages, benefits, or other terms and conditions of employment through the meet and confer in good faith process, or, through appropriate procedures in situations where employees are not represented by a recognized employee organization.

In addition, predecessor agencies are not relieved of their obligation to meet and confer in good faith with a recognized employee organization pursuant to the Meyers-Milias-Brown Act (MMBA) until the effect date of this bill; however, predecessor agencies are not required to meet and confer with such organizations after the employer assumes the agency’s rights and obligations after the effective date of this bill. (Section 110010, inclusive.)

1. A requirement that the employer give 90 days’ notice to the county of the agreed upon changes, if the employer and recognized employee organization negotiate changes to locally administered health benefits for IHSS providers. (Section 110011.)
2. Provides for these purposes as specified, labor relations provisions relating to:
3. A requirement that the Public Employment Relations Board (PERB) interpret and apply the provisions of this bill in a manner consistent, and in accordance, with judicial interpretations of the same language where the provisions of this bill are the same or substantially similar to those in the Ralph C. Dills Act (Dills Act). (Section 110013.)
4. A requirement that employers grant exclusive recognition to employee organization designated or selected pursuant to this bill or rules established by the PERB for employees of the employer or appropriate unit thereof, subject to the right of an employee to self-represent. (Section 110014.)
5. Establishing that powers and duties of the PERB must apply, as specified, including the powers relating to elections, unit modifications, and adoption of rules; that upon request of all affected recognized employee organizations, the employer must recognize a merged bargaining unit, as provided. (Section 110015, inclusive.)
6. Appeals of administrative law judicial decisions regarding recognition, certification, decertification, or unit modification, and final decisions of the PERB, as provided. (Section 110016.)
7. The processes, procedures, and timelines for challenges to, or appeals of, decisions or orders of the PERB, as specified, and petitions for a writ of extraordinary relief from PERB decisions or orders. (Section 110017, inclusive.)
8. A prohibition against IHSS providers being subject to punitive action, denial of promotion, or threatened with such treatment, for exercising lawful action as an elected, appointed, or recognized representative of any employee bargaining unit. (Section 110018.)
9. Establishing that these provisions do not affect the rights of an employee to authorize dues deductions from their salary or wages, and requirements relating to the Controller to make such deductions for payment to a recognized employee organization, as provided. (Section 110019, inclusive.)
10. The granting of rights to recognized employee organizations to represent their members in employment relations with the employer; authorizing such organizations to establish reasonable restrictions on membership; and, authorizing employees to self-represent in their relations with the employer. (Section 110020.)
11. Prohibiting the employer from certain specified activities or actions against employees in their exercise of rights guaranteed by this bill. (Section 110021.)
12. The scope of representation, which includes all matters relating to wages; hours; benefits; other terms and conditions of employment; programmatic changes that affect terms and conditions of employment; and, other specified matters within the scope, as provided; however, the consideration of the merits, necessity, or organization of any service or activity provided by law or executive order is excluded, as well as the right to hire, fire, and supervise an IHSS providers as these is expressly reserve to the IHSS recipient.

Notwithstanding the totality of the expressly enumerated matters within the scope of representation, the employer is authorized to consult and reach an agreement with the recognized employee organization on matters outside the scope of representation, and such matters must not be considered a mandatory subject of bargaining. (Section 110022, inclusive.)

1. Reasonable written notice by the Governor, or its designee, to each recognized employee organization affected by any law, rule, practice, or policy directly relating to matters within the scope of representation proposed to be adopted by the employer, and the opportunity for the recognized employee to meet with the employers, except in cases of emergency; and, in such cases of emergency when such changes must be made in the absence prior written notice or meeting with a recognized employee organization, notice and opportunity to meet must be provided at the earliest opportunity following such action. (Section 110023, inclusive.)
2. The “meet and confer” process and the exchange of proposals among, and by, the employer and a recognized employee organization, including the resolution of impasse. (Section 110024, inclusive.)
3. The process, timeline, and determination by the Joint Legislative Budget Committee or Legislature, as applicable, of side letters, appendices, or addenda to an original properly ratified MOU and relating expenditures, as provided; and, adoption of a MOU/A by the Legislature is an agreement is reached between representatives of the Governor and the recognized employee organization. (Sections 110025, inclusive, and 110026.)
4. Mediation, in the event that the employer and recognized employee organization fail to reach agreement, and the responsibility for costs of mediation, as specified. (Section 110027, inclusive.)
5. The process and procedures for arbitration, in the event that after all mediation procedures have been exhausted and no agreement has been reached between the parties, as specified. (Section 110028, inclusive.)
6. Reopening negotiations on all or part of the MOU, if the Legislature does not approve or fully fund the provisions of the agreement; however, the parties to the agreement may agree to effectuate provisions of the agreement that have received legislative approval or do not require legislative action. (Section 110029.)
7. Binding contractual rights and obligations borne by all state departments and agencies; counties; public authorities or nonprofit consortia, as provided; before the effective date of the IHSSEERA, and any other political subdivision of the state involved in the administration of the IHSS program, as well as relevant contractors and subcontractors of those departments and agencies. (Section 110030.)
8. A requirement that the employer allow a reasonable number of recognized employee organization representatives reasonable time off without loss of compensation or other benefits when formally meeting and conferring with the employer on matters within the scope of representation. (Section 110031.)
9. Making certain acts or actions by the employer unlawful, as specified and provided. (Section 110032, inclusive.)
10. Authorizing the PERB to adopt reasonable rules and regulations, including emergency regulations, for these purposes, as specified and provided. (Sections 110033, inclusive, and 110034, inclusive.)
11. Includes a severability clause to shield otherwise valid provisions and the application of the law from becoming invalid, if certain provisions are later deemed to be invalid. (Section 110035.)
12. Defines the following for these purposes:
13. Board” to mean the Public Employment Relations Board (PERB), as specified. (Section 110003 (a).)
14. “Employee” or “individual provider” to mean a person authorized to provide IHSS services, as provided; however, these terms do not include any person providing IHSS services to the county-employed homemaker model or the contractor mode, as provided, and that IHSS providers must not be deemed employees of the state for any other purpose, except as expressly provided. (Section 110003 (b).)
15. “Employer” to mean, for the specific purposes of collective bargaining, the state, the Department of Health Care Services, or any other agency, department, contractor, subcontractor, or political subdivision of the state administering the IHSS program; however, the IHSS recipient must be the employer of an IHSS provider with unconditional exercise to hire, fire, and supervise the provider. (Section 110003 (d).)
16. “In-home supportive services” or “In-Home Supportive Services Program” to mean services, as provided under the Welfare and Institutions Code, and waiver personal care services, also as provided under the Welfare and Institutions Code. (Section 110003 (e).)
17. “In-home supportive services recipient” to mean the individual who receives IHSS provided by the individual provider. (Section 110003 (f).)
18. “Mediation” to mean effort by an impartial third party to assist in reconciling a dispute regarding the subjects of bargaining (i.e., scope of representation,) as provided, between representatives of the employer and the recognized employee organization(s) through interpretation suggestion, and advice. (Section 110003 (g).)
19. “Predecessor agency” to mean a county, local public authority, or a nonprofit consortium established, as specified, before the effective date of this act. (Section 110003 (h).)
20. “Recognized employee organization” to mean an employee organization that has been formally acknowledged before the effective date of this act, by a predecessor agency, as the exclusive representative of its employees; and, on or after the effective date of this act, by the employer. (Section 110003 (i), inclusive.)
21. Defines, for purposes relating to the labor relations provisions, the following:
22. “Meet and confer in good faith” to mean the Governor, through its designee, and representatives of recognized employee organizations, must have the mutual obligation personally 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, and to endeavor to reach agreement on matters within the scope of representation prior to the adoption by the state of its final budget for the ensuing year. The process should include adequate time for the resolution of impasses. (Section 11024 (b).)
23. Makes various substantive conforming changes to existing law under the Welfare and Institutions Code for these purposes as follows:
24. Adds the state, or a county, public authority, or nonprofit consortium, as specified, also must promptly make certain specified contact information available, upon request, to an exclusive bargaining agent and any employee organization that seeks representation rights. (Section 7926.300.)
25. Adds a requirement that the state must assume the responsibilities of the IHSSEERA, as provided, on the effective date of the act; (Section 12300.8 (a).)
26. Adds a requirement that a count, or city and county, do any one of the following: (i) continue to have its public authority perform certain functions, as provided; (ii) continue to have the entity perform the functions in the existing contract at the time of notification, as provided; or (iii) assume the functions performed by an entity or public authority. (Section 12300.8 (b), inclusive.)
27. Authorizes a county, or city and county, assumes certain specified functions, to either: (i) contract for the performance of any or all of the functions assumed; (ii) contract with an entity for the performance of any or all functions assumed, as provided; or, (iii) establish a public authority for the performance of any functions assumed, as provided. (Section 12300.8 (c), inclusive.)
28. Amends by adding that a county, or city and county, public authority, or nonprofit consortium contracting with a county, when providing for the delivery of IHSS services by contract, direct payment to a provider, or by way of a provider of waiver of personal care services, must comply with the provisions or any MOU, addenda, appendices, or side letter to the MOU between the state and recognized employee organization, as specified and provided.

In addition, the state must assume and be liable for any act by a county, or city and county, a public authority, or nonprofit consortium contracting with a county that violates the terms of a MOU or modifications thereto, as specified; and, authorizes such violations to be adjusted through the grievance procedure contained in the MOU between the state and recognized employee organization. (Section 12301.6 (r), inclusive.)

1. Amends by adding to the enumerated items of information to be provided to prospective IHSS providers during orientation, any other information required to be communicated to prospective IHSS providers by a MOU, appendix, or side letter between the recognized employee organization and the state. (Section 12301.24 (a)(7).)
2. Amends by clarifying that a recognized employee organization must be provided with specified information, as provided, not less than 10 days before orientation of a prospective IHSS provider. (Section 12301.24 (d)(ii)(4)(C).)
3. Amends by adding consistent definitions of terms for purposes of conformity, as applicable, and establishes that provisions of a MOU/A are controlling in the event that conflicting statutory provisions exist, as specified. (Section 12301.24 (g), inclusive.)
4. Makes other conforming changes in the Welfare and Institutions Code for these purposes.
5. Makes several legislative findings, declarations, and states legislative intent for these purposes. (Section 110004, 110012, SEC. 8, and SEC. 9.)
6. Includes pro forma provisions relating to mandated reimbursement of costs to local agencies or school districts as determined by the Commission on State Mandates. (SEC 10.)

EXISTING LAW:

1. Governs collective bargaining in the private sector under the federal National Relations Labor Relations Act (NLRA), but leaves it to the states to regulate collective bargaining in their respective public sectors.^[1]

While the NLRA and the decisions of its National Labor Relations Board (NLRB) often provide persuasive precedent in interpreting state collective bargaining law, public employees have no collective bargaining rights absent specific statutory authority establishing those rights.

1. Provides several statutory frameworks under California law to provide public employees collective bargaining rights, govern public employer-employee relations, and limit labor strife and economic disruption in the public sector through a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment between public employers and recognized public employee organizations or their exclusive representatives. Among these, the Meyers-Milias-Brown Act (MMBA) governs employer-employee relations for local public employers and their employees.^[2]
2. Establishes the PERB, a quasi-judicial administrative agency charged with administering certain statutory frameworks governing employer-employee relations, resolving disputes, and enforcing the statutory duties and rights of public agency employers and employee organizations, but provides the City and County of Los Angeles a local alternative to PERB oversight.^[3]
3. Prohibits the state and specified public employers from deterring or discouraging public employees from becoming or remaining members of a public employee organization,^[4] and requires specified public employer to provide exclusive employee representatives access to new employee orientations, among other provisions.^[5]
4. Expands the jurisdiction of the PERB to include the “Building a Better Early Care and Education System Act of 2019,” also commonly referred to as the Childcare Provider Act (CPA), which provides collective bargaining for family childcare providers who participate in a state-funded early care and education program.^[6]

The statutory purpose of the CPA is to promote quality, access, and stability in the early care and education system by authorizing an appropriate unit of family child care providers to choose a provider organization to act as their unit representative on all matters specified in the CPA, and to promote full communication between family child care providers and the state by permitting a provider organization certified as the representative of such providers to meet and confer with the state regarding matters within the scope of representation and other areas as mutually agreed upon in negotiations.^[7]

FISCAL EFFECT: Unknown. This bill is flagged as fiscal by Legislative Counsel.

COMMENTS: Information provided by the author states that, “[t]he current structure of the IHSS collective bargaining process is not conducive to filling the impending long-term care shortage or establishing a living wage standard for these essential workers. The demand for long-term care is expected to grow drastically over the next decade,” and, “[a]ccording to the Department of Finance, the population of older adults who will need long-term services and supports (LTSS) is expected to grow by more than 40 percent between 2019 and 2030, from 6 million to over 8.6 million. However, the availability of quality home care providers is becoming a dwindling resource due to unlivable wages for the work’s difficult demands.

“Wages and benefits vary between each county, but no county pays providers a living wage. The average living wage in California is $43.44 per hour. In comparison, the average IHSS worker makes only $16.46 per hour. Additionally, access to health benefits also vary. In fact, providers in 20 counties have no access to health or dental benefits through the IHSS program.”

In addition, “[a]ccording to a state audit released in February 2021, in 2019 – before COVID-19 – nearly 32 million hours of IHSS care went unused. And the state not only needs to find people to do this work, these workers need to be retained. According to the Legislative Analyst’s Office, the average annual turnover in IHSS is roughly 33 percent. California needs tens of thousands of caregivers just to meet turnover and current shortage.”

When left up to the counties, history shows a completely disaggregated and inefficient framework for investment in, and implementation of, the program. There are several counties where the only raises the providers have seen in the last decade are due to the state minimum wage increases. In fact, Siskiyou County has never had a settled collective bargaining agreement for its IHSS providers. Up and down the state, these types of disparities keep the collective power of these workers disaggregated and keeps this program from doing what it’s supposed to do, which is to provide the most cost effective quality care in the setting people want.”

Moreover, “[t]he current structure of the IHSS collective bargaining process is not conducive to filling the impending long-term care shortage or establishing a living wage standard for these essential workers. The demand for long-term care is expected to grow drastically over the next decade. According to the Department of Finance, the population of older adults who will need long-term services and supports (LTSS) is expected to grow by more than 40 percent between 2019 and 2030, from 6 million to over 8.6 million. However, the availability of quality home care providers is becoming a dwindling resource due to unlivable wages for the work’s difficult demands.”

For purposes of this bill, the author states that, “[w]ithout secure contracts for workers, the State estimates that we will face an IHSS caregiver shortage due to the rapid growth in California’s senior population and the low wages of IHSS workers. Existing problems in the IHSS collective bargaining process have resulted in workers being denied a fair wage. While the average living wage in California is $43.44 per hour, the average IHSS worker makes only $16.46 per hour. The current structure of the IHSS collective bargaining process is not conducive to establishing a living wage standard for these essential workers, or filling the impending long-term care shortage. To provide for our essential workers and ensure that IHSS recipients receive the care they need, [this bill] would allow IHSS providers and employers to negotiate their contracts and wages at a State level instead of at the county level.”

1. What is the IHSS Program and What Do IHSS Providers Do?

The IHSS program helps to pay for services provided to an individual so that they can safely remain in their own home. To be eligible for IHSS services, a person must be 65 years of age and older, or disabled, among other criteria, and disabled children also are potentially eligible for IHSS services. The IHSS program is considered an alternative to out-of-home care, such as nursing homes or board and care facilities.^[8]

For this program, county social workers currently determine eligibility for IHSS after conducting a standardized in-home assessment, and periodic reassessments, of an individual’s ability to perform specified activities of daily living. Once eligible, recipients are responsible for hiring, firing, directing and supervising their own IHSS provider or providers. The counties or local public authorities must conduct a criminal background check and provide an orientation before a provider can receive payment. Local public authorities are designated as “employers of record” for collective bargaining purposes, while the state administers payroll, workers’ compensation, and benefits.

Generally, the providers of these services are family members of the IHSS program participant; however, this is not exclusive as program participants can also choose a provider from a list of local (i.e., county) providers for care. IHSS providers perform a range of necessary tasks for recipients such as cleaning, bathing, other healthcare, cooking, providing social interaction, assistance with errands, and other numerous common day-to-day living activities or responsibilities.

1. Brief History of the Former IHSSEERA

Historically, IHSS providers and their exclusive representatives negotiate at the local level (i.e., county or local public authority) under the MMBA on matters involving employment relations relating to the IHSS program.

Because of a dissimilar approach or philosophy, and inconsistent outcomes among the various counties in their employer-employee relations regarding this program, including achieving a memorandum of understanding or agreement with represented IHSS providers and their exclusive representatives, exclusive representatives of IHSS providers sought a uniform approach to employer-employee relations and collective bargaining in support of establishing the former IHSSEERA, which was enacted in 2012.

Generally, among other things, the former IHSSEERA established the IHSS Statewide Authority to serve as the employer of record of IHSS providers – for purposes of collective bargaining – in several Coordinated Care Initiative (CCI) demonstration counties,^[9] while the recipient of IHSS services retained rights as an employer (i.e., hire, direct, supervise, and terminate) of the provider prior to, and after, the IHSSEERA transition of collective bargaining from the MMBA to the state for those counties.

The original IHSSEERA initially covered only eight counties: Alameda, Los Angeles, Orange, Riverside, San Bernardino, Santa Clara, San Diego, and San Mateo. On July 1, 2015, the Counties of San Bernardino, Riverside, San Diego, and Los Angeles transitioned to the IHSS Statewide Authority under the IHSSEERA, and it was the first time that Los Angeles was under the PERB’s jurisdiction; whereas, the other three counties were formerly subject to the PERB’s jurisdiction under the MMBA.^[10]

As the employer of record for IHSS providers, the former IHSS Statewide Authority was responsible for employer-employee relations. Thus, the responsibility for collective bargaining was largely removed from those counties. In 2017, the original IHSSEERA was repealed, which returned responsibility for employer-employee relations and collective bargaining to the local level under the MMBA.

1. This Bill: The IHSSEERA, Redux

Although not entirely identical, the provisions of this bill are substantially similar to the former IHSSERA. In practical effect, this bill proposes to similarly reestablish the IHSSEERA for the similar purposes as to its predecessor act.

1. Equity Solutions and Maximizing Benefits for Underserved and Marginalized Communities

Pursuant to House Resolution (HR) 39 (Gipson, 2021), to continue the Assembly’s commitment to investing in equity solutions and maximizing benefits for underserved and marginalized communities, legislative analyses of the Assembly must discuss the equity impact that a bill will, or may, have on such communities, if any.

This bill does not present a particular focus towards addressing equity in relation to maximizing benefits for underserved or marginalized communities as articulated in HR 39. However, under a broader context, the author states that, “IHSS providers and their recipients are a very diverse and marginalized population. The IHSS program is specifically meant to provide care to low-income adults who are aging and individuals living with disabilities to allow them to receive care safely in their homes with comfort and dignity.”

1. Prior or Related Legislation

Chapter 25, Statutes of 2017, Section 4 (Senate Bill 90, Committee on Budget and Fiscal Review), among other things, repealed provisions relating to the IHSS Statewide Authority, the IHSS Fund, and the IHSSEERA.

Chapter 45, Statutes of 2012 (Senate Bill 1036, Committee on Budget and Fiscal Review), established the IHSSEERA.

Chapter 33, Statutes of 2012 (Senate Bill 1008, Committee on Budget and Fiscal Review), among other things, implemented the Duals Demonstration Pilot Projects to achieve savings, and expanded the number of counties in which dual demonstration sites may be established, from four to eight, relating to coordinate care services.

1. Comments by Supporters

Among other things, the American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO states that, “… the IHSS program is designed to provide in-home assistance to low-income adults who are aging and individuals living with disabilities to allow them to receive care safely in their homes with comfort and dignity. This program employs 6000,000 IHSS providers and serves over 690,000 recipients. The fragmented nature of the IHSS program as a county-administered program is not conducive to standardizing an equitable living wages across this industry. [This bill] will help transition collective bargaining from the local level to the statewide level… to streamline the collective bargaining process, professionalize the IHSS workforce by providing livable wages and benefits, ensure more equitable distribution of long-term care funds, and allow the state to meet its long-term care demands.”

Among statements similar to those of the author, the United Domestic Workers (UDW)/AFSCME, AFL-CIO also states in part that, “[c]hange is long overdue within the IHSS program, and it is time for California to uplift and empower those individuals caring for our loved ones and most vulnerable communities.”

Justice in Aging, and the California Labor Federation, AFL-CIO, expresses statements similar to those of AFSCME, AFL-CIO, and UDW/AFSCME, AFL-CIO.

1. Comments by Others

Registering a position of “pending”as to this bill, a coalition letter from the California Association of Public Authorities for IHSS, the California State Association of Counties, and the California Welfare Directors Association states in part that, “[e]xisting law deems a Public Authority (PA) as the employer of record for the purposes of collective bargaining for IHSS providers. This bill establishes the IHSS Employer-Employee Relations Act (Act), which would shift collective bargaining for IHSS providers to the state. If collective bargaining transfers to the state, it should do so in a manner that works effectively for all entities involved. With that in mind, counties and PAs have identified several key areas in this bill that we are engaging with the author and sponsors on in a collaborative manner. These include:

• “Providing clarity that the state would be responsible for the full nonfederal share of cost for any negotiated wage and benefit increases agreed to in state bargaining and the full cost of any negotiated new mandates on counties and public authorities. Under state bargaining, the state would be solely responsible for agreeing to wage and benefit increases and counties would have no ability to manage the associated costs within Realignment funding and county budgets;
• “Preserving and strengthening PA functions and the funding for those PA services that are performed outside of collective bargaining. There are numerous provisions of [this bill] that directly or indirectly impact the work and functions of PAs. Additionally, not all PAs are equally funded based on caseload, creating existing equity issues that may become exacerbated under this bill; and,
• “Examining the items included within the scope of bargaining and potential County and PA representation in the statewide entity responsible for bargaining. There are currently several items within the scope of bargaining that are functions performed by PAs, yet counties and PAs would have no ability to provide input on the impacts of any potential changes to those functions.”

REGISTERED SUPPORT / OPPOSITION:

Support

Service Employees International Union, California (Sponsor)

United Domestic Workers/American Federation of State, County and Municipal Employees,

Local 3930 (Co-sponsor)

Alzheimer’s Association

American Federation of State, County and Municipal Employees, AFL-CIO

California Alliance for Retired Americans

California Labor Federation, AFL-CIO

Justice in Aging

Opposition

None on file.

Other

California Association of Public Authorities for IHSS (Position Pending)

California State Association of Counties (Position Pending)

County Welfare Directors Association of California (Position Pending)

Analysis Prepared by: Michael Bolden / P. E. & R. / (916) 319-3957

1. Sections 151 et seq., Title 29, United States Code. ↑

2. Sections 3500 et seq. of the Government (Gov.) Code. ↑

3. Sections 3541 et seq. of the Gov. Code. ↑

4. Sections 3550 through 3553, inclusive, of the Gov. Code. ↑

5. Section 3555 through 3559 of the Gov. Code. ↑

6. Sections 10420 et seq. of the Welfare and Institutions Code. ↑

7. Section 10420.5. ibid. ↑

8. California Department of Social Services – IHSS Program. Visit: www.cdss.ca.gov/in-home-supportive-services. ↑

9. The purpose of the CCI was aimed at coordinating for individuals who were receiving Medicare and Medi-Cal program benefits, and to achieve cost savings. ↑

10. “2021-22 Annual Report.” PERB, October 15, 2022. ↑