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Progressive and conservative policy leaders agree on one occupational licensing reform

Policy development groups on both the left and the right have stepped up pressure on state legislators this year to restrict many licensing boards from using past criminal convictions to deny applicants a license.

On the right, the lobbying group ALEC (American Legislative Exchange Council), which has developed hundreds of pro-free-market model bills that state legislatures frequently adapt and enact, supports tighter restrictions on boards’ ability to screen out applicants with criminal records.

ALEC added a “Collateral Consequences Reduction Act Model Legislation” to its war chest of proposed bills in 2017. Under the model bill, boards may only disqualify individuals from obtaining state recognition to practice a certain field if the criminal record includes a conviction for a felony or violent misdemeanor, the type of crime is expressly codified in the statute as a disqualifying offense, and “the board concludes the state has an important interest in protecting public safety that is superior to the individual’s right.”

In addition, if a potential candidate petitions the board for entry to the occupation, the ALEC model bill would require the board to supply clear and convincing evidence that, based on the person’s record, the person is “more likely to re-offend by virtue of having the license than if the individual did not have the license,” and a re-offense would cause greater harm than barring  the person from licensure.

The National Employment Law Project (NELP), a New York-based policy analysis organization, is also calling for called for easing of state licensing entry standards that prevent people with criminal records from qualifying for entry to various occupations—but for different reasons than ALEC’s.

NELP is concerned that U.S. criminal justice policy has resulted in nearly one in three U.S. adults having a record—creating a major barrier to their participation in the labor market and lifelong consequences that are devastating to many. In the belief that lifting state occupational licensing barriers can help remedy this problem, NELP supports fairer and more consistently applied licensing laws.

NELP’s 2016 report Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People With Records outlines the landscape of barriers created by blanket bans, overly broad criminal record inquiries, a lack of transparency and predictability in the licensure decision-making process, and confusion caused by a “labyrinth of different restrictions.”

In evaluating 40 states’ licensing laws, NELP considered four criteria: whether the law prohibits blanket rejection of applicants with conviction histories; whether the law incorporates “EEOC factors”—which include considering whether a conviction is occupation-related and how much time has passed since the conviction—whether the law limits the scope of record inquiry or the consideration of certain types of record information, and whether the law requires consideration of rehabilitation.

The National Employment Law Project recommends ten policy changes to reform criminal-record inquiries: 1. Remove automatic blanket bans from state laws. 2. Limit scope of criminal record inquiry for state license applicants. 3. Require examining whether a conviction is occupation-related and how long ago it occurred. 4. Require consideration of applicants’ rehabilitation and mitigating circumstances. 5. Provide notice and a fair hearing to applicants who are disqualified. 6. Eliminate self-reporting in the application process and “ban the box” from the applications. 7. Remove vague “good moral character” or “moral turpitude standards. 8. Evaluate states’ occupational licensing restrictions and reform to admit qualified applicants with records. 9. Provide clear guidance to license applications about potential disqualification. 10. Adopt overarching state laws on criminal records that supersede individual licensing laws.

How frequent are blanket bans that automatically disqualify people with certain records from licensure? The American Bar Association, along with the U.S. Department of Justice, maintains an inventory of licensing law provisions against people with a record that documents 27,254 state occupational licensing restrictions in 2015.  (See https://lawlibrary.blogs.pace.edu/2015/03/10/ searchable-inventory-for-collateral-consequences-of-convictions/.)

These restrictions included 12,000 for individuals with any type of felony, 6,000 based on misdemeanors, more than 19,000 permanent disqualifications, and more than 11,000 mandatory disqualifications.