Welfare, Child Care, and the People Who Care: Union Representation of Family Child Care Providers

Abstract

The Article examines the legal struggle to organize and represent family child care providers who provide publicly-subsidized child care. In 2005, the Service Employees International Union (SEIU) achieved the largest child-care union victory in United States history when it won the right to represent more than 49,000 child care workers in Illinois. The victory, remarkable in its own right, was all the more stunning as the workers were family child care providers, who provide child care for compensation from within their private homes and who are generally regarded as independent contractors who lack collective bargaining rights. SEIU's success was made possible by the increasingly public character of family child care. In the aftermath of welfare reform, local and state governments are compensating family child care providers to care for the children of welfare-to-work recipients. Yet while family child care has become critical to low-income families, rarely do providers receive adequate compensation from the government. Providers claim that they are de facto state employees - paid by the state and regulated by the state - and as such are entitled to negotiate with the state regarding the terms of their labor arrangements. In the course of exploring this claim, the Article considers the independent contractor/employee distinction as applied to family child care providers and examines how unions can use the state action doctrine under antitrust law to grant collective bargaining rights to providers.