Bipartisan momentum is building in support of “fair chance licensing” reforms that lift restrictions on granting licensure to people with records, according to a November 2018 report from the National Employment Law Project (NELP), a research organization that advocates broadly for wage, unemployment, and regulatory policies that benefit workers.
About one in four jobs in the U.S now require a license and, commonly, a background check, to practice, NELP notes. This is at a time when mass incarceration has been at its peak and there are now 70 million people in the U.S. who have an arrest or conviction record.
But the report, Fair Chance Licensing Reform: Opening Pathways for People with Records to Join Licensed Professions, points to a recent trend: a surge in new laws that restrict licensing agencies to only consider convictions that are “substantially related” to the occupation and occurred within seven years of the application trend started with Illinois and Georgia in 2016. It expanded to Arizona, Kentucky, and Louisiana in 2017, and to seven other states in 2018: California, Delaware, Indiana, Kansas, Maryland, Massachusetts, and Tennessee.
More jobs in the economy require a license or “permission to work,” as both NELP and the Heritage Foundation term it, than ever before—an estimated 25% of workers, steeply higher than about 5% in the 1950s. About two thirds of the growth is from significant expansion of licensing into new sectors, the report notes.
About 27,000 state occupational licensing restrictions are on the books for people with records, according to the American Bar Association. “Of those, 6,000 can be based on misdemeanors, 19,000 are permanent disqual-ifications, and 11,000 are mandatory disqualifications.”
The stigma of a prison record falls harder on Hispanic women and blacks, who are much less likely than whites with prison records to be interviewed for or offered a job.
Even misdemeanor convictions can scotch a licensure application. The NELP report relates the story of a child care provider who lost her day-care-owner certification and license to work in caregiving facilities. The offense: a 30-year-old overpayment of public assistance imposed for mistakenly failing to report gifts from a boyfriend. That led to a misdemeanor conviction and, three decades later, permanent revocation of her licenses.
Fair chance licensing would help workers, employers, and the economy, NELP argues. The report quotes Pennsylvania Governor Tom Wolf ‘s call, in June 2018, for repeal of the automatic 10-year ban on licensing for those convicted of a drug felony: “Pennsylvania must be a place where people can put their skills, experience, and education to work. Requiring a government license to work in certain jobs helps to make all of us safe, but those requirements should be fair.”
NELP’s report includes a table listing, for each state and the District of Columbia, estimated numbers of people with arrest or conviction records, percent of adult population with arrest or conviction records, number of people with felony convictions, number of people with prison records, percent of the workforce licensed by the state, percent of occupations with lower incomes requiring a license, and the number of disqualifications for a record in state occupational licensing laws.
State policy reforms to reduce disqualifications for people with records
Ten state policy reforms would promote greater transparency and accountability and help achieve fairer, more consistently applied licensing laws, the NELP report concludes.
- Eliminate blanket bans that automatically disqualify workers with certain records through “mandatory” or “permanent” licensing disqualifications.
- Limit the types of record information requested in a background check. Including less relevant information such as offenses that are old, minor, or unrelated to the occupation can cloud opinions of licensing boards even when they intend to consider only recent, occupation-related offenses.
- Require licensing boards to assess candidates case by case, examining both whether a conviction is occupation-related and how much time has passed since the offense.
- Mandate consideration of applicants’ rehabilitation and any mitigating circumstances, which may provide context that reveals the insignificance of a serious-sounding record.
- Provide applicants with notice of potential disqualification and an opportunity to respond before the application is rejected, since background reports may be inaccurate and the applicant should be allowed to point out errors.
- “Ban the box” by removing questions about conviction records from the application, and stop asking applicants to self-report their records at any time during the application process.
- Remove “good moral character” requirements, restrictions against “moral turpitude” offenses, and other vague legal standards. “When the law lacks clear limits on licensing board discretion, opaque statutory language affords cover to automatically reject applicants with virtually any record,” NELP points out.
- Evaluate state occupational licensing restrictions and mandate ongoing data collection by licensing boards so that lawmakers can better understand current barriers and ensure that any attempted reforms make headway toward addressing them.
- Promote transparency by providing clear guidance to applicants regarding potential disqualifications for the occupation.
- Create more uniform standards by incorporating these recommendations into a broadly applicable state licensing law that expressly supersedes any conviction record restrictions contained in other laws governing specific professions.