[Editor’s Note: Since there are legal issues surrounding the current environment and layoff procedures, we sought the assistance of attorneys Gabriella Flowers, Michelle Cannon, and Darren Kameya from the firm of Lozano Smith, who provided answers to the questions posed in this article.]
Given the circumstances in which we find ourselves operating under the COVID-19 pandemic, questions have arisen regarding how this may affect local educational agencies (LEAs) that, before the pandemic, had to prepare plans to reduce staff positions through layoffs.
The statutory layoff timelines can be found in our previous article “Layoffs Loom Large for LEAs”, in the February 2020 issue of the Fiscal Report. Current questions about the process are mainly about how the statutory requirements and timelines will apply, such as whether any requested layoff hearings will be held for certificated staff in light of Governor Gavin Newsom’s Executive Order to stay at home.
Certificated Staff
For certificated staff, preliminary layoff notices were required to be issued by March 15. Staff members who receive a preliminary layoff notice are entitled to an administrative hearing, if requested. What follows are two questions and answers related to certificated staff layoffs.
Q1. Will the Office of Administrative Hearings (OAH) schedule hearings, and if so, how will the hearings comply with social distancing?
A1. At this time, the OAH states that layoff hearings will be scheduled. Certificated employees who receive preliminary layoff notices have a right to due process. For those who timely request a layoff hearing, it is unlikely the requirement would be suspended. There is nothing in the Education Code or Administrative Procedure Act that contemplates suspension of these due process rights due to an emergency situation such as the COVID-19 pandemic.
The OAH has issued an order addressing its general jurisdiction calendar, under which certificated layoff hearings fall. The order provides that, from March 20 until April 16, 2020, “all hearing rooms at OAH locations are closed for business, and no hearings at off-site locations will take place,” except for “essential matters”, which are to be heard through teleconference or video conference. However, essential matters do not include layoff hearings.
If the OAH reopens for all regular matters on April 16, 2020, and the COVID-19 pandemic persists, those hearings will likely take place via teleconference or video conference, as is being done for essential matters. LEAs—particularly small and rural LEAs—will need to ensure that they have the ability to accommodate this type of hearing.
Q2. Will LEAs be able to issue final notices if, for some reason, a hearing isn’t held in the time frame required?
A2. Final layoff notices must be sent to affected employees before May 15. For those employees who timely requested a layoff hearing, the hearing must conclude prior to the governing board’s review and action on the proposed layoff decision. Therefore, it is possible that the May 15 deadline may be continued, although it is unclear whether the OAH even has jurisdiction to continue the final layoff notice deadline under the Education Code. It is possible that the parties would need to mutually agree to a continuance, which the administrative law judge would need to approve, without determining the enforceability of such continuance.
Classified Staff
While there is no hearing requirement when an LEA issues layoff notices to classified staff, notices must be served 60 days prior to the effective date of the layoff, or by April 29 for specially funded programs. The following question has been asked:
Q3. The layoff notices must be personally served. Is it possible for this requirement to be waived so that the notices can be delivered through certified mail or some other safe manner due to the COVID-19 pandemic?
A3. The requirement of personal service is recommended because the classified layoff statutes do not articulate a required service method. Given the health risks associated with personal service at this time, it would be appropriate to send such notices in a manner that is likely to reach the employee but without the increased health risks associated with personal service. Service via email and tracked U.S. mail would be appropriate alternatives. Certified mail—to the extent it requires signature upon delivery or personal collection at the post office—may not be the best idea due to COVID-19 health concerns.