Legal Update Memo No. 31-2020 – Summer Layoffs of Certificated and Administrative Employees (K-12)

Download pdf: 31-2020 – Summer Layoffs of Certificated and Administrative Employees (CDC-LWS-DLM)

The budget outlook for next year is not good.  According to a letter issued by the Department of Finance on May 7, 2020, state revenue losses are projected at $9.7 billion in the current 2019-2020 school year with an additional $32.2 billion in the next 2020-2021 school year.[1]  Those of us who have been working within California’s public schools for over a decade may recall a need during the Great Recession to implement summer layoffs of certificated employees as authorized by Education Code § 44955.5.  With predictions of an 18.3 billion dollar drop in Proposition 98 funding for this year and next year, and with this years’ May Revision to the budget scheduled to be submitted by May 14, 2020, it may be time to consider whether your local educational agency (“LEA”)[2] needs to – and is authorized to – make such cuts.

Summer layoffs of permanent and probationary certificated staff and the release of administrative staff are permitted:

  • “if the governing board of a school district determines that its total revenue limit per unit of average daily attendance for the fiscal year of that Budget Act has not increased by at least 2 percent;” and
  • “if in the opinion of the governing board it is therefore necessary to decrease the number of permanent employees in the district.”[3]

Please note that while Education Code § 44955.5 references “revenue limit,” Education Code § 42238.06(a) was added in 2013 to state that any reference to “revenue limit” should instead refer to the “local control funding formula.”

So, if the final Cost-of-Living Adjustment (“COLA”) for 2020-2021 turns out to be less than 2.00% and LEAs are funded at less than a 2.00% increase of a per Average Daily Attendance (“ADA”) in the final Budget Act, then summer layoffs will be permitted.

If the conditions for a summer layoff are met, then LEAs are authorized to implement summer layoffs effective for the 2020-2021 school year, during the time period between five days after the enactment of the final Budget Act (due by June 15, 2020) and August 15, 2020.

The summer layoff process is virtually identical to regular year certificated layoffs, with one significant exception:  the LEA governing board must adopt a “schedule of notice and hearing” through a resolution. The resolution must identify the LEA’s timelines for the summer layoff resolution, notices, hearing requests, and final action.  Once the resolution is adopted it must be transmitted to the Office of Administrative Hearings (“OAH”) before the LEA can proceed with any layoff hearing.  In addition, the entire process (notice, hearing, hearing decision issued, final LEA Board action to implement layoffs, and issuance of final layoff notices) must all be completed by August 15, 2020.

In the past, OAH limited its summer layoff hearing dates to June and July only.  Therefore, an LEA considering summer layoffs should take action to adopt the schedule of notice and hearing resolution as soon as possible after the final Budget Act is adopted.  LEAs should also consider adopting appropriate skipping and tie-breaking criteria, if your LEA intends to apply these to its summer layoffs.

OAH’s website provides some general information concerning layoff procedures and process:

Please be aware that the Legislature retains the authority to suspend Education Code § 44955.5, which would prevent LEAs from implementing summer layoffs and historically the Legislature has on three occasions taken action to suspend Education Code § 44955.5. However, unless and until this occurs, LEAs may proceed with the summer layoff procedures as outlined above.

Please contact our offices for assistance with drafting the required Schedule of Notice and Hearing, skipping or tie-breaking criteria, and for our template layoff forms.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation. 

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[2] Please note that since Education Code § 1294 applying to County Offices of Education (“COEs”) does not incorporate Education Code § 44955.5, it does not appear that COEs may exercise a summer layoff of certificated staff.  In the same manner, Education Code § 1294 does not incorporate Education Code § 44951 (which requires notice by March 15 in order to release an administrator at the end of the school year) so COEs should be able to release an administrator from their administrative assignment after March 15.

[3] Id.