White House criticizes occupational licensing restrictions

Occupational licensing requirements pose more of a barrier to employment than ever before, and perhaps no group of the population has been more affected by these barriers than people with criminal histories.  About 25% of the country’s workforce is now employed in a field that requires a state occupational license, and many of these licenses take criminal history into account for eligibility or retention purposes.  As a result, a record number of people with criminal records — many of whom have devoted their lives to a particular occupation or profession — are finding it difficult or impossible to earn a living in their chosen field.

Now the White House is weighing in on the issue, saying that “Policymakers should refrain from categorically excluding individuals with criminal records, and instead should only exclude those individuals whose convictions are recent and relevant, and pose a legitimate threat to public safety.” The White House’s urging appears in a new report aimed at curtailing the “inconsistent, inefficient, and arbitrary” burdens that current occupational licensing systems can place on workers, employers, and consumers.”

As it stands, there are thousands of state laws that may bar those with criminal histories from obtaining licensure.  In many instances, these laws authorize or require licensing bodies to reject applicants regardless of whether an individual’s criminal record is relevant to the licensed occupation.  As a result, licenses are denied to many individuals with criminal histories even though, as the report concludes, “many of these individuals have criminal histories which should not automatically disqualify them from work in a licensed profession.”

While it is understandable that some kinds of criminal convictions should disqualify applicants for certain kinds of jobs, in many cases, a criminal conviction of any kind may be a bar to licensure. Twenty-five States and the District of Columbia have no standards in place governing the relevance of conviction records of applicantsfor occupational licenses. In these States, a licensing board may deny a license to an applicant who has a criminal conviction, regardless of whether the conviction is relevant to the license sought, how recent it was, or whether there were any extenuating circumstances. In many States, employers and occupational licensing boards are also permitted to ask about and consider arrests that never led to a conviction in making their employment decision.

Even when consideration of criminal history is not specifically required or authorized by law, a record may still lead to denial of a license. The report points out that, “Licensing regulations often refer broadly to ‘good moral character’ as a requirement for holding a license, and in practice this has in many cases been interpreted to ban individuals with any criminal record.”

Given the sizable portion of the population with a criminal record, the cumulative impact of these restrictions is substantial:

Blanket exclusions for the formerly incarcerated or those with criminal records … renders a great number of individuals –as many as one in three Americans has some form of criminal record (either for arrest or conviction) – ineligible for a large share of jobs, in turn perpetuating unstable economic situations for these individuals.

And it appears that the number of people subject to such restrictions has been growing, in part because states have required licensure of more and more occupations in recent years.  According to the report, the number of state-licensed workers is currently five times what it was in the 1950s. Two-thirds of that growth is attributable to an increase in the number of occupations that require licensure.

The prevalence of interstate licensing compacts that standardize eligibility criteria may also be exacerbating the problem.  The report warns that these compacts may encourage overly exclusive screening since it is easier for states to find consensus at the “lowest common denominator,” than to agree to more specific criteria that represent a more tailored approach. The Nurse Licensure Compact (NLC) illustrates this point:

A key difficulty in forming the NLC was the variation across States in whether and how workers with criminal histories were licensed. While individual States are free to set their licensing requirements as they see fit (for instance, by allowing nurses with criminal records to apply), the multi-State license is currently only available to nurses who satisfy a more restrictive standard (nurses with felony convictions may not apply).

Even though compacts like the NLC may not directly affect a person’s ability to obtain a license in their home state, they greatly diminish the interstate mobility of those with criminal records.

To address these issues, the White House report calls upon policymakers to “endeavor to strike a more appropriate balance between protecting the public and ensuring that licensing laws do not prevent qualified individuals from securing employment opportunities.”  In addition to pushing for narrow tailoring of criminal history criteria, the report specifically urges policymakers to give licensees and applicants “a timely right to appeal and seek waivers from background check exclusions,” and to “provide transparent and clear explanations of their background check requirements.”

Though the report encourages the federal government and Congress to take a role in funding and promoting such reforms, it  places most of the responsibility on the states:

Ultimately, however, most of the power is in the hands of the States. State legislators and policymakers should adopt institutional reforms that promote a more careful and individualized approach to occupational regulation that takes into account its costs and benefits, and harmonizes requirements across States.

However, this belies the substantial role that the federal government plays in influencing state licensing policies. While the report concedes that some licenses are issued or required by the federal government (4% of the workforce holds a federally issued license), it fails to acknowledge that federal laws and policies dictate state licensing requirements in fields like finance and commercial transport so that federal licensing mandates tend not to be distinguished from the state licensing requirements that implement them. A huge number of individuals are affected by these federal licensing mandates: Consider, for example, that many state commercial driver’s license requirements are dictated by federal law, and that truck drivers make up the largest portion of the workforce in 28 states.  In transport and other fields where the federal government exercises control, states will be unable to change their policies until the federal government implements reforms of its own.

Still, it is encouraging to see the White House take a reform-minded stance on the issue of licensing.  Reversing a trend that has been decades in the making is no easy task, but it is one that is essential if we are to restore the economic security and mobility of the millions of Americans with a criminal record.

The report, Occupational Licensing: A Framework for Policymakers, is available here.

 

Our own research shows that 30 states have standards in place that generally govern the relevance of convictions in occupational licensing determinations.

 

 

Joshua Gaines

Josh is a North Carolina-based attorney and the CCRC's Deputy Director. After graduating from American University in 2012, he worked on the National Inventory of the Collateral Consequences of Conviction (NICCC), and various other projects dealing with collateral consequences, rights restoration, and reentry.

View All Posts