Capping a tumultuous session, the 88th Minnesota legislature, on the final day of the 2013 session, passed a bill, S.F. 778, which had long been sought by labor unions. The bill gives unions the right to organize private family child care providers and home health care providers who work independently in their own businesses.
The Family Child Care Providers Representation Act, which was approved by the legislature on May 20, 2013, became effective when it was signed by Governor Mark Dayton on May 24, 2013. The law is aimed specifically at independent businesspersons who provide child care services, often in their own homes and who receive state funds to subsidize such services. Similarly, the law extends the right to organize and be represented by an exclusive bargaining agent to “individual providers” of “direct support services,” which are defined as “nonprofessional long-term services to the elderly or persons with a disability.” These individuals are sometimes referred to as “personal care attendants” or “PCAs.”
Procedurally, in order to effectuate the rights of these care providers to organize, the state Bureau of Mediation Services (BMS) is directed to compile by July 1, 2013, and update on a monthly basis thereafter, a list of all the names and addresses of family child care providers. Beginning on July 1, 2013, if an “employee organization” (i.e., union) shows to the commissioner of the BMS that at least 500 family child care providers support representation, then within seven days the BMS will provide to such organization the most recent list of actively registered family child care providers and a subsequent monthly list upon request for an additional three months. The list will also be made publicly available at that time.
Then, the BMS is authorized to conduct a secret ballot election only by mail ballot if the employee organization seeking to represent them has established that at least 30 percent of the appropriate unit wishes to be represented by the petitioner. If a majority of ballots cast in the election are in favor of representation by the employee organization, the BMS is authorized to certify the employee organization as the majority exclusive representative.
If an exclusive representative is certified by the BMS, collective bargaining with the state of Minnesota follows. The new law provides for “interest arbitration” in the event that the parties cannot agree on the terms of an agreement. Also, the family child care providers and independent providers of direct support services are prohibited from engaging in a strike.
In 2012, Democratic-Farmer-Labor Governor Dayton made a similar effort when he issued an executive order requiring that any independent child care or home health care provider who received state funds be included in a potential statewide bargaining unit and be afforded the opportunity to vote to be represented by an exclusive bargaining agent. In a June 2012 order, a RamseyCounty district judge permanently enjoined this executive order and ruled that the governor had exceeded his authority under the Minnesota Constitution. The court found that the executive order crossed the line of the separation of powers doctrine and suggested that only the legislature was empowered to take this action. In its very next session, the legislature took that action.
For a detailed discussion of this new law, see “Minnesota Legislature Grants Independent Child Care and Home Care Health Workers the Right to Unionize as ‘State Employees’.”
