States are falling short when it comes to making occupational licensing opportunities available to people with criminal records. This is according to a report released this week by the National Employment Law Project (NELP).  Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Criminal Records examines the licensing laws of 40 states, and grades each state based on a number of criteria designed to assess how effective the law is at creating licensing opportunities for people with criminal records.  The report is a powerful advocacy piece demonstrating the need for nation-wide reform of licensing laws, though it bears noting that its limited scope may distort the bigger picture in some states.

Recent studies and policy discussions focusing on the difficulty people with criminal records have finding employment tend to ignore the fact that nearly 30% of American jobs require state licensure or certification — which is frequently denied based on a conviction.  The National Inventory of Collateral Consequences (NICCC) shows that there are over 25,000 formal occupational and business licensing restrictions imposed nationwide at the state or federal level.  Many of these restrictions apply regardless of a crime’s relationship to a particular license or the time since conviction.  Across the nation, over 10,000 of these restrictions are mandatory and apply automatically, forcing licensing bodies to reject applicants with certain records regardless of their qualifications or evidence of their rehabilitation.

Municipal and county ordinances also regulate employment and business opportunities, including such important entry-level employment as taxi driver and street vendor, though ordinances are not catalogued in the NICCC and so were not included in the NELP report.

According to the report, forty states have enacted generally applicable laws that limit the extent to which licenses may be denied based on criminal record. In some cases, as in Arizona, the law only applies to people who have had the effect of their conviction mitigated by other means, such as expungement or civil rights restoration.  In others, as in Colorado and Indiana, the laws are riddled with inconsistencies and exceptions for certain fields and certain convictions, and may not apply at all where disqualification is specifically imposed by statute.  Many states, like Delaware and Michigan, give licensing boards broad discretion to decide, with little or no guidance, whether a particular conviction is related to the license at issue or indicative of a “lack of good moral character.”

The report awarded only one state, Minnesota, its highest “most effective” rating. Twenty-eight states received a “minimal” or “unsatisfactory” rating, and that number does not include the eleven states that have no overarching law governing consideration of conviction in licensing.  States were evaluated based on the following criteria:

• Does the law prohibit the blanket rejection of applicants with conviction histories?
• Does the law incorporate “EEOC factors,” which include consideration of whether a conviction is occupation-related and how much time has passed since the conviction?
• Does the law limit the scope of record inquiry or the consideration of certain types of record information?
• Does the law require consideration of rehabilitation?

The criteria are derived from a NELP-developed model state law on licensing and criminal records.

The report provides an eye-opening overview of the pervasive problem of licensing discrimination based on criminal record even where a general law purports to limit it.  One fruitful area for further examination would be to consider the important role that individualized relief mechanisms, like pardon and expungement, may play in overcoming restrictions in licensing and certification schemes.  In many states, consideration of expunged or pardoned convictions is limited not by the terms of licensing statutes, but by the terms of the expungement and pardon authorities themselves.  Broadly applicable expungement laws (like those in Utah, Kansas, and Kentucky), and robust pardon practices (like those in Delaware, Pennsylvania and Georgia) offer significant opportunities for people with convictions to avoid licensing restrictions altogether, making generally applicable discrimination laws somewhat less critical.

Failing to account for such individualized relief may lead to some misleading conclusions.  For example, the report notes that the Ohio, Oklahoma, and Rhode Island licensing statutes limit consideration or disclosure of expunged or pardoned records, but it fails to note that in Nevada, Tennessee, and Vermont (all states that got low marks in the report) expungement and pardon authorities limit consideration or disclosure of convictions by their own terms.  A report on such a complex issue can only account for so much, of course — something that co-author and NELP Senior Staff Attorney Michelle Rodriguez acknowledges.  Still, a brief discussion of the availability of individualized relief authorities might offer a more complete view of the landscape.  Charts reviewing the availability of pardon and expungement in all 50 states are available on this site, along with a 50-state chart on laws limiting consideration of conviction in licensing and employment.

Overall, the report succeeds in demonstrating the significant barriers that confusing, inconsistent, and unnecessarily restrictive licensing laws pose to the successful rehabilitation and reintegration of people with criminal records. To address this issue, the report proposes that states adopt a number of policy reforms, including assessing applicants on a case-by-case basis, removing vague and overbroad standards, giving applicants notice of denial and an opportunity to respond, and eliminating self-reporting of records by applicants.

The full NELP report is available here.

The CCRC hosts a 50-State Comparison of the Consideration of Criminal Records in Licensing and Employment which is available here.  To find out whether pardon or expungement may eliminate licensing barriers in your state, see our State-Specific Guides to Restoration of Rights, Pardon, Sealing & Expungement here.