New occupational licensing laws in 2021
In the first five months of 2021, seven states and the District of Columbia enacted nine separate laws improving opportunities for people with a criminal record to obtain occupational licenses. This continues a four-year trend begun in 2017 that has seen 33 states and the District of Columbia enact 54 separate laws regulating consideration of criminal record in the licensing process.
Our report on new legislation in 2020 noted that “[o]f all the criminal record reforms enacted during this modern reintegration reform era, no other approaches the regulation of occupational licensing agencies in terms of breadth, consistency, and likely efficacy.” Laws enacted during this four-year period have “transformed the licensing policy landscape across the Nation and opened opportunities in regulated professions for many thousands of people.” The only period of law reform that rivals the present one came during the early 1970s, when many of the laws now being revised and extended were first enacted. The effectiveness of advocacy efforts by the Institute for Justice and National Employment Law Project in influencing this trend cannot be overstated.
So far during 2021, the U.S. jurisdiction to have enacted the most ambitious and comprehensive licensing scheme is the District of Columbia, and its new law (described in detail below) is one of the most progressive in the nation. New Jersey, New Mexico and Washington had not previously legislated in this area for many years, and all three extended and improved laws first enacted in the 1970s. Arizona, Georgia, Ohio, and Tennessee extended recently enacted laws, with Arizona legislating for the fourth time in this area in as many years!
Comprehensive licensing scheme enacted by the District of Columbia
Act A23-0561, signed by Mayor Muriel Bowser on January 15, 2021, imposed a detailed regulatory scheme on many occupational licenses issued by the District of Columbia, including health-related professions. The new law is one of the broadest and most comprehensive in the country in the judgment of both CCRC and the Institute for Justice.
The 2021 law provides that no one may be denied a license based on conviction of a crime unless it is “directly related” to the occupation for which the license is sought. (Under prior law a license could be denied if a conviction “bears directly upon the fitness” of the person to be licensed.) References to “good moral character” in prior law were struck. The new law also prohibits a board from inquiring into or considering an applicant’s criminal conviction until after the applicant is found to be otherwise qualified. After such inquiry, it may not consider a conviction that has been sealed, expunged, vacated, or pardoned, a juvenile adjudication, or non-conviction information, or one that whose elements are not found by “clear and convincing evidence” to be “directly related” to the occupation. In making this determination, a board must consider specific factors relating to the circumstances of the offense, the individual’s other record, evidence of rehabilitation, and “the District’s interest in promoting employment opportunities for individuals with criminal records.”
Before denying a license based on a conviction a board must notify the applicant about the reasons for denial and offer a hearing, describe the information that may be provided to demonstrate rehabilitation and fitness, give the applicant an opportunity to respond, and issue a final decision within 45 business days after it receives a response. The board must also provide information on legal resources along with a hearing notice. The 2021 law also establishes a pre-application petition process for individuals to determine their eligibility based on a criminal conviction, which must be completed within 90 days. (The law does not state whether an affirmative conclusion at this preliminary stage is binding on the board.)
This law applies to licenses issued by D.C.’s Department of Consumer and Regulatory Affairs and Department Health, but not occupations regulated outside of these agencies, including attorneys, teachers, notaries, taxi drivers, funeral directors, boxers, commercial drivers, and insurance agents.
The Mayor must submit a report to the Council by January 1, 2022, identifying the statutory and regulatory collateral consequences of criminal records and recommendations for their mitigation or elimination. And, by January 1 of each year, the Mayor must submit to the Council a report with data relating to each board regulating health-related and non-health-related occupations.
Significant revisions of existing general licensing laws
As modified in 2021 by HB 2787 (the fourth licensing law in three years), standards for disqualification now provide that an agency may refuse licensure to a person based on their criminal record only if a conviction “specifically and directly relates to the duties and responsibilities of the occupation” (except for offenses involving moral turpitude defined to include serious and violent offenses) and “the person, based on the nature of the specific offense that the person was convicted of and the person’s current circumstances, including the passage of time since commission of the crime, “is more likely to reoffend by virtue of having” the license than not. The 2021 amendments also require that certain records may not be considered: non-conviction records, including record of participation in a diversion program; a conviction that was sealed, expunged or pardoned; a juvenile adjudication; and a non-violent misdemeanor.
Existing law allowed licensing boards to deny licensure where a person was on community supervision, without requiring the person’s crime to be “directly related” to the occupation for which licensure was sought. SB-114 added supervision status to list of dispositions for which direct relationship is required. The new law does not apply to those on supervision for a felony crime against a person, including battery or assault, or for a crime requiring sex offense registration.
3. New Jersey
Until 2021, New Jersey’s 1970’s-era law governing licensure by dozens of state licensing boards (most health-related licenses, accountants, architects, engineers, cosmetology, and many others) provided that boards could deny or suspend licensure upon conviction “of a crime of involving moral turpitude or relating adversely” to the regulated occupation. P.L.2021, c.81 (S942), modified the standard for denial or suspension of licensure by these state licensing agencies to “a direct or substantial relationship to the activity regulated by the board or is of a nature such that certification, registration or licensure of the person would be inconsistent with the public’s health, safety, or welfare . . . .”
4. New Mexico
The 1974 Criminal Record Employment Act in force prior to the 2021 amendments prohibited licensing boards from considering non-conviction records. As amended in 2021 by SB2, NM’s licensing agencies are precluded from considering convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.” In addition, while “misdemeanors not involving moral turpitude” were omitted from the list of crimes that may never be considered, misdemeanors were also omitted from the provision allowing convictions to be considered if “directly related” to the license in question. The revisions leave open the possibility that a misdemeanor could be grounds for denying licensure as a teacher or child care provider only if they involved drug trafficking or child abuse. The 2021 amendments also omitted an alternative basis for disqualification based on insufficient rehabilitation.
Ohio’s existing law required licensing agencies to list crimes that mandate disqualification. As further amended in 2021 by HB 263, boards must list convictions that “may” be disqualifying, and other convictions and non-conviction records may not be grounds for denying a license. Vague terms like “moral character” and “moral turpitude” may not be used. If a conviction is on the list of those “directly related,” the board must still consider certain standards linked to an applicant’s overall record that are linked to public safety and may not deny after a period of either five or 10 years depending on the offense. In the event of denial, a board must provide procedural protections including written reasons and a hearing. These new features supplement the provision for a binding preliminary determination enacted by Ohio in 2019.
The 2018 Fresh Start Act was amended in 2021 by SB768 to provide specific criteria governing a licensing board in determining the fitness of a person for licensure based on their criminal record, including the relationship of the crime to the ability performs the duties of the occupation, and evidence of the person’s rehabilitation. (The FSA already included a “direct relationship” standard.) The 2021 Act also deleted “a rebuttable presumption that the prior conviction relates to the fitness of the applicant or licensee” if the conviction was for a Class A, Class B, or certain Class C felonies, or if the felony conviction required registration as a sex offender or animal abuser.
A 2021 law provides that each licensing agency shall allow potential applicants for a license to receive a “preliminary determination” as to whether their criminal record will be disqualifying. See 2021, ch. 194 (HB1399). No fee may be charged. This determination must be made within two months, and if it is negative must be accompanied by a statement of reasons. Another provision of HB1399 states that a licensing agency “may disqualify an individual from obtaining a professional license, government certification, or state recognition if it determines the individual’s conviction is related to the occupation or profession unless the individual has requested and received a [Certificate of Restoration of Opportunity (CROP)].” See Section 3 of 2021, ch. 194 (HB 1399). It is not clear whether this law was intended to lower the “direct relationship” standard in § 9.96A.020(2).
Another 2021 law gave new protections to employees of long-term care facilities, setting forth time limits beyond which certain theft and assault convictions will not be disqualifying. See 2021 Ch. 219 (HB1411). The CROP law was also amended to give protection to these employees.
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