Governor Newsom Signs AB 438 Providing Classified Employees with Layoff Notice and Hearing Rights

On October 8, 2021, Governor Newsom signed Assembly Bill 438, which will require school districts and community college districts to provide classified employees with the same layoff notice and hearing rights as certificated and academic employees have. It also provides that any layoff notice or hearing rights granted to certificated and academic employees in the future would automatically extend to classified employees.

The bill defines “permanent classified employees” as an employee who was permanent at the time the notice or right to a hearing was required and an employee who became permanent after the date of the required notice. This bill does not change a district’s right to release probationary employees.

Districts will now be required to issue permanent classified employees with notice of a layoff no later than March 15. Except when the district eliminated the classified positions because of the expiration of a specially funded or grant, program, it must give the layoff notice at least 60 days prior to the effective date of the layoff. This notice shall notify employees of their layoff date, displacement rights if any, and reemployment rights.

As a result of the passage of AB 438, districts will be required to:

• Before March 15th, the CEO must recommend the governing board issue layoff notices to classified employees;
• Provide layoff notices to classified employees no later than March 15;
• Identify the reasons for the layoff to both the governing board and to the classified employees;
• Keep the layoff notice and the reason for the layoff confidential until the classified employee has requested a hearing or has waived their right to a hearing, except as necessary in the performance of duties; and
• Provide affected employees a layoff notice setting out the employee’s right to request a hearing in writing; the allotted time to submit the hearing request; and waiver of hearing rights if the employee fails to request a hearing or to timely request a hearing.

Districts cannot lay off classified employees if there are short-term employees retained to render a service that the classified employee is qualified to render.

Additionally, AB 438 provides specific requirements for the hearing.  The ALJ will conduct the hearing and issue a decision made in accordance with the Administrative Procedures Act.  An administrative law judge (ALJ) and comply with the following:

• The ALJ shall prepare a proposed decision, containing findings of fact and a determination as to whether the charges sustained by the evidence and relate to the welfare of the district and its students. This decision is not binding on the governing board.
• The ALJ’s proposed decision shall contain a determination as to the sufficiency of the cause and a recommendation as to disposition.
• The district’s governing board will make the final determination as to the sufficiency of the cause and disposition.
• None of the ALJ’s findings, recommendations, or determinations contained is binding on the district’s governing board.
• The Office of Administrative Hearings will send copies of the proposed decision to the district’s governing board and to the classified employee on or before May 7.
• The district pays all expenses of the hearing, including the cost of the ALJ.
• Any notice or request must be delivered personally or by registered mail to the employee’s last known address.
• The district’s governing board must accept, reject, or modify the proposed decision at a meeting before May 15.
• The district must give notice of termination to the employee before May 15.
• If a continuance was granted during the hearing process, the deadlines shall be extended for the number of days of that continuance.

Districts will need to ensure they carefully plan and track deadlines.  If a district does not give notice by the deadlines, the employee will automatically be reemployed for the ensuing year.

For K through 12 districts, if local control funding formula apportionment per unit of average daily attendance for the fiscal year of that Budget Act does not increase by at least 2 percent, the governing board may determine to decrease the number of classified employees of the school district due to lack of work or lack of funds.  In that instance, the district governing board may issue a layoff notice, and adopt a schedule of notice and hearing for that layoff.

To assist school districts and community college districts, LCW will be preparing template layoff notices and related documents. The templates will be added to the Liebert Library and available for access to premium members. Liebert Cassidy Whitmore attorneys are experienced in assisting school and community college districts in navigating the issues surrounding layoffs.  We are able assist and ensure compliance with these changes to the law.

This Special Bulletin is published for the benefit of the clients of Liebert Cassidy Whitmore. The information in this Special Bulletin should not be acted upon without professional advice.