Yesterday we announced the forthcoming publication of a national report surveying various legal mechanisms for restoring rights and opportunities following arrest or conviction, a revision and updating of our 2020 report “The Many Roads to Reintegration.” The first post in the series (“Expungement, Sealing & Set-Aside of Convictions“) gives some additional background about the report. This second post in this “preview” series deals with how the law regulates consideration of criminal history in employment and occupational licensing. We expect to publish the whole report, plus our Reintegration Report Card for 2022, early next week.

Fair Chance Employment & Occupational Licensing

Introduction

There is perhaps no more critical aspect of a reintegration agenda than removing the many unjustified and unjustifiable barriers faced by people with a criminal record in the workplace.^[1] In an era of near-universal background checking and search engines, the “Mark of Cain” these individuals bear will sooner or later be known to potential employers and licensing boards even if criminal record information is not requested on an initial application.

Some barriers take the form of laws formally disqualifying people with certain types of convictions from certain types of jobs or licenses. More frequently, barriers result from informal discrimination grounded in an aversion to risk and, too frequently, racial stereotypes. Whether it is securing an entry level job, moving up to management responsibilities, or being certified in a skilled occupation, people with a criminal record are at a competitive disadvantage, if they are even allowed to compete. As between two individuals with hypothetically equal qualifications, it is easy for a risk-averse prospective employer or licensing agency to justify breaking the tie in favor of the person who has never been arrested.

Individualized record relief mechanisms like expungement or pardon are intended to improve employment opportunities, and they can be helpful on a case-by-case basis to those who are eligible and able to access them.^[2] But equally important are fair employment and licensing laws that impose general standards limiting consideration of criminal record and provide for their enforcement, offering class-wide relief to all similarly situated individuals. States have enacted an impressive number of this sort of systemic “clean slate” law^[3] just since 2015, some building on laws enacted in an earlier period of reform half a century ago in the 1960s and 1970s,^[4] and others breaking new ground in regulating how employers and licensing agencies consider an applicant’s criminal record.

In employment, one of the most striking legislative trends in the past decade is the embrace of limits on inquiry into criminal history in the early stages of the hiring process, particularly for public employment. The so-called “ban-the-box” campaign that began modestly more than 20 years ago in Hawaii and took off nationwide after it was adopted in California, has now produced new laws or executive orders in more than two-thirds of the states and in over one hundred cities and counties. More efficient and broadly effective than after-the-fact lawsuits, ban-the-box laws now represent the primary tool for eliminating unwarranted record-based employment discrimination on a system-wide basis. They are premised on an expectation that getting to know applicants before learning about adverse information in their background is likely to lead to a fairer and more defensible hiring decision. This should be particularly true when a records check is permitted only after a conditional offer of employment has been made, so there is little doubt about the reason in the event of a later withdrawal.^[5] A few states (though still too few) have coupled ban-the-box strategies with standards for considering a person’s record after inquiry is permitted.

Occupational licensing has also seen an acceleration of legislative efforts to limit the arbitrary rejection of qualified workers. Significant procedural and substantive reforms have been enacted in more than two thirds of the states in the last five years, in some cases building on reforms originally adopted in the 1970s, and in others following models recently proposed by policy advocacy organizations from across the political spectrum whose model laws aim to make licensing authorities newly accountable for their actions and individuals newly able to obtain and practice a skill with enhanced career prospects. Following these models, states have

• substituted objective standards related to the specific occupation for vague “good moral character” criteria;
• afforded individuals a preliminary decision about whether their record will be disqualifying before they invest in education or training;
• prohibited consideration of certain records considered unrelated to job performance, including based on their minor or dated nature;
• required licensing agencies to justify negative decisions, frequently in terms of public safety, and to afford disappointed applicants an opportunity to appeal;
• imposed legislative oversight requirements to hold licensing agencies accountable for their performance.

As shown in the following discussion and in the “Report Card” maps that follow the section, almost every state now has at least some law aimed at limiting record-based discrimination in employment or licensure, and most have both. Enforcement of these new laws may in many cases depend on education and persuasion rather than on lawsuits and executive orders, but this may make systemic change come sooner and have a more lasting effect. The very exercise of repeatedly having to decide the relevance of an individual’s past conduct through a transparent and accountable process is likely to result in more reliable decision-making, and a better understanding of those relatively few instances when denial of opportunity is justifiable. We discuss the state of the law in greater detail in the following sections.

Note: Color-coded maps and a side-by-side Report Card for both employment and occupational licensing are at the end of the section.

1. Employment

Only a handful of states have adopted general rules prohibiting employment discrimination based on criminal record, and the only relevant federal law depends upon being able to establish disparate impact based on race or some other  classification protected under the civil rights laws.^[6] In fact, until this century, only three states had incorporated provisions relating to a record of arrest or conviction into their general FEP law: New York (1976), Wisconsin (1981), and Hawaii (1998).^[7] Article 23-A of New York’s Corrections Law prohibits “unfair discrimination” against a convicted person by public and private employers and licensing entities. The law imposes a “direct relationship” standard defined by a multifactor test limited only by public safety considerations, which may be enforced through the courts or through the State Human Rights Law. Certificates issued by a court or parole board may lift mandatory employment or licensing bars and are evidence of rehabilitation in discretionary decisions. Rejected applicants must be given reasons in writing.^[8] Wisconsin’s fair employment law also covers arrest or conviction record and has been broadly interpreted by the administrative agency responsible for its enforcement and the courts to require a conclusion that “a specific job provides an unacceptably high risk of recidivism for a particular employee.”^[9]

Many other states adopted laws in the last years of the 20^th century providing that a conviction could not be the “sole” reason for refusing to employ someone in a government position and directing public employers and licensing agencies to consider whether a criminal record was related in some fashion to the job. Some even set out detailed criteria for determining when a “direct relationship” (or, variously, “substantial” or “reasonable” relationship) exists between a person’s criminal record and the position. These standards were sometimes sufficiently precise as to encourage rejected applicants to go to court, but the employer usually won.^[10] Individuals rejected for employment because of a criminal record had somewhat better luck under federal civil rights law if they could establish a correlation between criminal record and another independently prohibited basis for adverse treatment such as race.^[11] But for all intents and purposes until 1998 Wisconsin and New York were the only states that provided administrative remedies for criminal record-based employment discrimination without also requiring a nexus with race or some other characteristic protected under the civil rights laws.

When Hawaii extended its Fair Employment Practices law to criminal records in 1998, it was the first state to identify and address a concern about threshold disqualification based on criminal background checks. Its prohibition on inquiries into an applicant’s criminal record until after a conditional offer of employment has been made served as an inspiration for the “ban-the-box” campaign that began several years later in California. In Hawaii, a conditional offer may be withdrawn only if a felony conviction within the most recent 7 years or a misdemeanor within 5 bears a “rational relationship to the duties and responsibilities of the position.”^[12] Its four-part enforcement mechanism is still a model for other states:

• To prohibit application-stage inquiries about criminal history
• After inquiry is made, to prohibit consideration of non-convictions and certain other records that are categorically deemed “unrelated” to qualifications
• To apply detailed standards to consideration of potentially relevant records, and
• To enforce these standards and procedures through the general fair employment law.

While the ban-the-box approach pioneered by Hawaii has taken hold across the country, only three additional jurisdictions have built a comprehensive approach to “fair chance employment” around the same four-part mechanism, and of these three only two have applied it to private as well as public employment. The District of Columbia was the first in this century to enact what has come to be called a “fair chance” approach to hiring people with a criminal record, regulating public employment in 2010 and a few years later extending similar rules to private organizations employing more than 10 people.^[13] D.C. employs essentially the same four-part approach as Hawaii, including enforcement through its general fair employment law. It prohibits inquiry until after a conditional offer has been made, which may be withdrawn only for a “legitimate business reason” that is “reasonable” under a multi-factor test and accompanied by written reasons.

More recently California and Illinois have joined the small group of states that make discrimination based on criminal record a civil rights violation. California’s 2017 extension of its Fair Employment and Housing Act (FEHA) to both public and private employers is the more extensive, combining ban-the-box with later prohibitions on consideration of non-conviction records, as well as convictions that have been dismissed or set aside, pardoned, or been the subject of a judicial Certificate of Rehabilitation. In all cases, employers must conduct individualized assessments to determine whether a conviction has a “direct and adverse relationship with the specific duties of the job,” notify an applicant in the event of denial and of the record relied upon (though no further reasons need be given) and allow the applicant to respond. Violations constitute an “unlawful employment practice” that may lead to administrative enforcement by the Department of Fair Employment and Housing and ultimately to court.^[14]

In 2021, Illinois expanded its Human Rights Act to add a new section prohibiting discrimination in employment based on “conviction record,” making it a civil rights violation for any employer, employment agency or labor organization to use a prior conviction record as a basis to refuse to hire or to take any other adverse action unless: 1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held, or 2) the granting or continuation of the employment would involve a public safety risk. The employer must consider various factors, including the time since conviction and evidence of rehabilitation, and afford due process rights in connection with an adverse action.^[15]

It does not take much to complete the meagre catalogue of state laws limiting discrimination based on criminal record in private employment, Massachusetts makes it an unlawful employment practice to take adverse action based on non-convictions and some misdemeanors after five years,^[16] and Louisiana enacted a law in 2021 that has broad substantive standards but few procedural protections and no enforcement mechanism.[17]

Nevada’s 2017 law also deserves mention although it applies only to public employers, because it categorically prohibits consideration not only of non-conviction and sealed records, but also of misdemeanors that did not carry a prison sentence.[18] A public employer must consider a variety of factors before denying employment on the basis of criminal record and must give a written explanation of the reasons for rejection. Failure to comply with applicable procedures is an unlawful employment practice and complaints may be filed with the Nevada Equal Rights Commission.

A large number of states have now adopted the first step of Hawaii’s comprehensive approach to hiring by enacting “ban-the-box” laws, relying primarily on limiting the amount of information employers have about an applicant’s criminal record until the later stages of the hiring process. These laws are premised on a hopeful expectation that if applicants are given a chance to demonstrate their job-related qualifications before their past record is revealed, employers will be willing to take a more considered look at them. By the beginning of 2022, laws or ordinances prohibiting application-stage inquiries applied to public employment in 37 states, the District of Columbia, and over 150 cities and counties, and in many cases limited record checks until after a conditional offer of employment.^[19] In 15 states and D.C., and 22 cities and counties, private sector employment is also affected.^[20]

procedural protections for applicants or mechanism for enforcement .^[24] The limited information available to date on the practical effect of ban-the-box schemes suggests that they do improve job opportunities for people with a criminal record.^[25] However, their effectiveness depends to some extent upon a willingness on the part of decision-makers to forego, at least temporarily, information about a candidate for employment that might be highly relevant to a hiring decision. In this regard, some research has indicated that limiting inquiry into criminal history may lead to employer reliance on racial or other stereotypes about who may have a criminal record.^[26]

Some state laws protect employers from negligent hiring liability, the primary reason cited by employers for not hiring someone with a criminal record.^[27] Frequently such protections are triggered when an employee or applicant for employment receives some form of individualized restoration of rights, such as a pardon or judicial sealing. But some states, like Colorado, Minnesota, and New York, absolutely prohibit the use of conviction evidence in a negligent hiring civil suit. Texas prohibits negligent hiring suits except when the employer knew or should have known that an employee committed certain high-risk offenses.^[28] Massachusetts protects employers so long as they relied on information from the state’s Criminal Offender Record Information System (CORI) and reached a decision within 90 days of receiving that information.

While ban-the-box laws generally exclude specific types of employment, including employment where a background check is required by law, and are essentially toothless without standards and an enforcement mechanism, collectively they represent the single most significant advance for people with a record in the workplace in thirty years. In requiring potential employers to evaluate each applicant’s circumstances as opposed to reflexively rejecting anyone who reports a record, and in some cases potentially making it expensive to withdraw an offer conditionally extended, these laws are to a considerable extent self-enforcing. In this sense, they depend for their effectiveness not so much on the threat of lawsuits to compel compliance as on marketplace efficiency.

As we will see in the following discussion, comprehensive occupational licensing reforms enacted by more than a dozen states since 2018, and partial reforms enacted by another dozen, are an equally encouraging development.

1. Occupational Licensing

Recent studies have shown that close to 25% of all jobs in the United States are available only to people who have been approved to compete for them by a government licensing agency.^[29] It is therefore of obvious importance to the reintegration agenda to remove record-based barriers that unfairly and inefficiently restrict access to the licenses and certificates that people need to work in regulated occupations and professions.

In addition to the burdens imposed in time and money by engaging in the licensing process, applicants face regulatory agencies that may be inhospitable to people with a criminal record even if they are fully qualified by skill and training. Sometimes this is because the law mandates a heightened standard for those who have been convicted of a crime (if they are not excluded entirely). More frequently it is because of vague “good moral character” standards arbitrarily enforced by those with a guild mentality or moral sensibilities untethered to established occupational standards or actual public safety risk.^[30]

In an earlier era of reform in the 1960s and 1970s, many states enacted laws intended to soften the rough edge of what had been complete exclusion of people with a criminal record from trades and professions^[31] Several states regulated public employers and licensing agencies together, requiring them to consider whether a conviction was “directly related” to a job or license, and whether the person was “rehabilitated.”^[32] Some states that enacted detailed regulation of public employment and licensing prior to the 1980s have not made major changes to their licensing rules since that time.^[33]

Beginning in 2013, a new era of occupational licensing reform took shape, transforming the policy landscape.^[34] By mid-2020, more than 30 states had enacted legislation to make it easier for qualified individuals with a criminal record to obtain occupational and professional licensure and the foothold in the middle class that this promises.^[35] The modern reforms were heavily influenced by model occupational licensing laws proposed by two national organizations with differing regulatory philosophies: The Institute for Justice (IJ), a libertarian public interest law firm,^[36] and the National Employment Law Project (NELP), a workers’ rights research and advocacy group.^[37] Both of these model law proposals address the following five key issues:

1. What records should be considered? Both proposals limit the kinds of records that may be considered, recommending that only recent serious convictions should be the basis of denial or other adverse action, and that non-convictions and sealed or pardoned convictions should not be considered at all.
2. What are proper criteria for denial of licensure based on conviction? Both of these proposals require a “direct relationship” between a conviction and the occupation. IJ’s proposal also permits denial based on public safety risk, and the NELP proposal permits denial based on lack of rehabilitation. Both proposals would eliminate mandatory bars to licensure and vague standards like “good moral character.”
3. At what point in the process should criminal record be considered? The timing for considering whether a criminal record should be disqualifying differs significantly in the two proposals. Under IJ’s proposal, a person may at any time petition for a “preliminary determination” whether a criminal record will be disqualifying, before investing in any training or special education, the agency must promptly respond and charge a minimal fee, and its determination is binding upon later application. Under NELP’s proposal the order of decision is reversed: consideration of the record should occur only after determining the person is otherwise qualified, a variation on its “ban-the-box” approach.
4. What procedural protections should apply in licensing decisions? Under both proposals, procedures for decision-making are well-defined, and both require agencies to bear the burden of showing unfitness, to issue written decisions defending denials, and to allow for appeals.
5. How should licensing agencies be held accountable? Both proposals require agencies to make periodic reports that will allow monitoring of compliance by the legislature or responsible executive agency.

The most ambitious and extensive licensing schemes enacted during the current reform period address each of these questions, while other states have been more selective in deciding which approaches to adopt. Between 2016 and 2021, 39 states and the District of Columbia enacted a total of 66 laws imposing new generally applicable obligations and limitations on licensing agencies, several states enacting multiple laws in successive years.^[38] Some of these states regulated licensing decisions state-wide for the first time,^[39] while others expanded on recent enactments, and a few states updated and improved licensing regulations enacted during the earlier reform era in the 1960s and 70s.^[40] Many required agencies to publish lists of disqualifying convictions and limit disqualification to convictions “directly related” to the occupation, abolished vague “moral character” criteria and emphasized public safety instead, barred consideration of non-convictions, sealed or expunged records and certain other records, and required agencies to justify denials in writing and defend them on appeal. Many states also required agencies to report periodically to the legislature.^[41] The Institute for Justice keeps a running tab of the reforms broken down by feature.^[42]

The most ambitious of the new laws were the comprehensive schemes enacted by Indiana in 2018, Iowa in 2020, and the District of Columbia in 2021. All three are strong both substantively and procedurally, incorporating many features of the Institute for Justice’s model law. Indiana’s requirements apply not only to state agencies but also to county and municipal governments that issue occupational and professional licenses and permits.^[43] The broad laws adopted in recent years by New Hampshire, Ohio, and Rhode Island are also commendable.^[44] The most surprising new laws were the extensive schemes put in place in two Southern states, North Carolina and Mississippi, the first an expansion of a scheme from an earlier reform era, and the second a brand new effort by a state that previously had no law at all.^[45]

Several states, including New Jersey. New Mexico, and Washington have recently undertaken to modernize licensing schemes originally enacted in the 1960s and 1970s and virtually unchanged since that time,[46] but Minnesota has evidently seen no need to modify a progressive scheme first enacted in 1974 that still gets high marks.^[47] Pennsylvania completely reworked the substantive standards intended to guide 29 licensing agencies controlling 255 licenses,^[48] and along with Maryland and Nebraska also imposed new reporting requirements on licensing boards, perhaps a prelude to more extensive procedural regulation. Alabama and Washington authorized their courts to grant exemptions from many mandatory barriers to licensure.^[49] Arizona enacted no fewer than six separate laws over a four-year period, each building upon the last to expand licensing opportunities.

The extraordinary number and variety of laws in this category adopted between 2018 and 2021 can be surveyed in the annual reports of new legislation published by CCRC and posted on the CCRC website. There are now only three states (Alaska, Massachusetts, and South Dakota) that have no general law or regulations setting limits on how licensing boards may consider an applicant’s criminal record.

In addition to these general reforms, states also enacted laws regulating specific occupations or addressing narrower aspects of licensure. Five states (Connecticut, Delaware, Florida, Idaho, and Iowa) loosened restrictions on barbers and cosmetologists, and Florida and Iowa facilitated licensing in construction trades taught in their prisons. Wisconsin added discrimination by occupational licensing boards to its venerable fair employment law, and Alabama passed a law allowing individuals to petition a court to remove mandatory bars to specific occupational licenses so that applicants may be considered on the merits. Texas and Washington opened health care occupations to people who may have been barred from them earlier in life.^[50]

In summary, given the number of work opportunities they control, licensing agencies play a key part in any reintegration strategy aimed at giving people with a criminal record a fresh start. While the philosophies behind the bipartisan advocacy for licensing reform may vary, the practical value of this advocacy to the many individuals who stand to benefit cannot be overestimated. If a “clean slate” means “an absence of existing restraints,”^[51] lifting legal and societal barriers to licensure seems an essential part of a clean slate agenda.

Report Card: Employment & Occupational Licensing

Employment:  The map above assigns each state to one of five color-coded categories reflecting the textual strength of the law regulating how criminal record is taken account of in the employment application process. (We cannot comment on how these laws operate or how they are enforced.) Grades below are based on these categories. The five categories are: 1) Orange: robust regulation of both public and private employment with provision for enforcement; 2) Green: robust regulation of public employment only; 3) Light orange: some regulation of both public and private employment, no systematic enforcement; 4) Light green: some regulation of public employment only; and 5) White: no meaningful regulation of either public or private employment. In determining which laws were robust and which were minimal, consideration was given to whether a state’s fair employment law extends to discrimination based on criminal record; whether a “ban-the-box” law prohibits inquiry until after a conditional offer has been made or allows it earlier in the process; whether the law provides clear standards for how employers should consider a criminal record in the employment application process; and, whether the law provides for administrative enforcement.

Occupational licensing: A similar color-coded map describes the strength of each state’s regulation of how criminal record is considered in the occupational licensing context, with grades assigned correspondingly. The five categories are 1) Orange: Strong substantive and procedural protections; 2) Green: Moderate protections in both categories with room for improvement; 3) Light orange: Modest protections needing improvement; 4) Light green: Minimal substantive standards leaving room for disqualification based on vague standards and few procedural protections; and 5) Few or no protections for those with criminal records in the licensing process.  Categories assigned considering the following criteria:

• whether clear and specific standards apply to test the relevance of an applicant’s criminal record to the occupation, by reference to public safety rather than character;
• whether certain categories of records (notably non-conviction records, sealed records, and misdemeanors) are deemed irrelevant to licensure and therefore may not be considered;
• whether the law provides an opportunity for aspiring applicants to get an early read on their likelihood of success, and whether that early read is binding on the agency at a later point;
• whether procedural protections are available through written reasons for denial and opportunities to appeal, including provision for external review of an adverse decision;
• whether there is an external accountability mechanism to monitor agency performance, such as periodic legislative reporting requirements.

 

 Comparison of State Grades Between Employment and Licensing

Looking at how states performed on the two report cards, we found it interesting that there is not a particularly strong correlation between their rankings for employment and for occupational licensing. That is, a state that has a robust system for regulating consideration of criminal record in employment may not and frequently does not have a similarly strong system for regulating occupational licensing agencies. In fact, only two jurisdictions (Minnesota and the District of Columbia) scored at the top of both categories. Four other states that scored well on employment also scored well on occupational licensing (California, Illinois, New York, and Wisconsin), but the last jurisdiction in the top employment category (Hawaii) scored poorly on occupational licensing. Four of the six states that have robust regulation of public employment scored in the middle tier of occupational licensing (Delaware, Kentucky, Missouri, and Tennessee), but the other two with good scores on public employment scored poorly on occupational licensing (Louisiana and Nevada).

Conversely, three states that ranked in the top tier for occupational licensing had no law at all regulating employment (Iowa, Mississippi, and New Hampshire) and five that scored well on licensing fared poorly in regulating public employment and had no law at all governing private employment (Arizona, Indiana, North Carolina, Ohio, and Utah). Three states had no regulation at all governing either employment or occupational licensing (Alaska, South Carolina, and South Dakota).

The Restoration of Rights Project contains 50-state comparison charts of each of the relief mechanisms analyzed in this report: consideration of criminal records in employment & licensing; loss and restoration of civil & firearms rights; pardon policy & practice; and expungement, sealing, & other record relief. Each of these summaries has links to state profiles that may be consulted for additional detail.

 

State grades

	Employm’t	Licensing
AL	F	F
AK	F	F
AZ	D	A
AR	F	B
CA	A	B
CO	C	C
CT	B	C
DE	C	C
DC	A	A
FL	D	D
GA	D	C
HI	A	C
ID	F	C
IL	A	B
IN	D	A
IA	F	A
KS	D	D
KY	B	B
LA	B	D
ME	C	C
MD	C	C
MA	B	F
MI	D	B
MN	A	A
MS	F	A
MO	C	B

 

MT	F	D
NE	D	C
NV	B	D
NH	F	A
NJ	C	C
NM	C	C
NY	A	B
NC	D	A
ND	D	B
OH	D	A
OK	D	B
OR	C	D
PA	C	C
RI	C	A
SC	F	D
SD	F	F
TN	C	B
TX	D	C
UT	D	B
VT	C	D
VA	D	C
WA	C	A
WV	F	B
WI	A	B
WY	F	C
Fed	B	F

 

End Notes 

*****

[1] Studies have shown that having a well-paying job has a demonstrable impact on recidivism rates for those released from prison. See, e.g., Crystal Yang, Local labor markets and criminal recidivism, 147 J. Pub. Economics 16 (2017). Recent years have produced an extraordinary literature on the public policy importance of removing barriers to employment and licensure for those with criminal records, as a matter of economic efficiency, public safety, and fairness. See, e.g., J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions, supra note 91. The chapter on “Consequences for Employment and Earnings” from the report of the National Research Council of the National Academy of Sciences, The Growth of Incarceration in the United States: Exploring Causes and Consequences 211-259 (Jeremy Travis and Bruce Western, eds.), remains the most thorough treatment of the impact of incarceration in the social science literature on the life prospects of those who experience it.

[2] Recent reforms in a few states call for automatic sealing of records on a categorical basis, legislative relief that is described in Part II of this report on Record Relief.

[3] The term “clean slate” is frequently used to describe the desired effect of record-sealing laws, but its definition as “an absence of existing restraints or commitments” makes it equally apt in connection with regulation imposition of unwarranted record-related restrictions in employment and occupational licensing. See Oxford Dictionary of Idioms 65 (John Ayto, ed., 2020), https://www.lexico.com/definition/clean_slate.

[4] See Love, Clean Slate, supra note 60 at 1707-1717.

[5] One caveat that has been raised by researchers about ban-the-box strategies is that barring early inquiry into criminal record may lead employers to rely on stereotypes about which applicants are likely to have one. See infra note 225.

[6] The only national standards for employment of people with a criminal record, the 2012 EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 tests the validity of employment policies affecting people with a criminal record in terms of their adverse effect on groups that are otherwise protected from discrimination. The EEOC has taken the position that employers may not reject applicants based on an arrest record alone and may not impose an across-the-board exclusion of people with a conviction record. The Guidance requires individualized consideration using a multifaceted screening test that considers the nature of the person’s offense, the time elapsed since it occurred, and the nature of the position. See Love, et al., Collateral Consequences of Criminal Conviction, supra note 6 at § 6:5. In 2019 the Fifth Circuit invalidated the Guidance, so its legal status is no longer clear. See Texas v. Equal Employment Opportunity Commission, 933 F.3d 433, 451 (5th Cir. 2019) (finding that the EEOC overstepped its statutory authority in promulgating guidance on employers’ use of criminal records in hiring).

[7] A fourth state, Connecticut, included as early as 1980 provisions addressing discrimination based on criminal record in public employment in its human rights code. See Conn. Gen. Stat. § 46a-80 (citing the former Sec. 4-61o which was transferred to Sec. 46a-80 in 1981). However, the state Commission on Human Rights and Opportunities evidently never regarded enforcement of these provisions as within its mandate. See 1994 memorandum from the Office of Legislative Research on Employment Discrimination Based on Prior Conviction of a Crime to the Connecticut General Assembly (Jan. 19, 1999), https://www.cga.ct.gov/PS94/rpt/olr/htm/94-R-0201.htm.

[8] Compare Boone v. New York City Department of Education, 38 N.Y.S.3d 711, 721 (N.Y. Sup. Ct. 2016) (holding that denial of security clearance for a position as a School Bus Attendant to petitioner convicted of shoplifting from her employer, without due regard to the factors set forth in Article 23-A, or petitioner’s CRD, was arbitrary and capricious) with Arrocha v. Bd. of Educ. Of City of N.Y., 93 N.Y.2d 361, 366 (1999) (holding that the Board of Education’s determination that teaching license applicant’s prior conviction for sale of cocaine came within statutory “unreasonable risk” exception to general rule that prior conviction should not place person under disability, was neither arbitrary nor capricious, where Board properly considered all statutory factors and determined that those weighing against granting license outweighed those in favor; age of conviction, applicant’s positive references and educational achievements, and presumption of rehabilitation were outweighed by teacher’s responsibility as role model and nature and seriousness of applicant’s offense.).

[9] See e.g. Palmer v. Cree, Inc., ERD Case No. CR201502651 (LIRC, Dec. 3, 2018) (finding that lighting products company could not show that a job applicant’s convictions—for felony strangulation and suffocation, and misdemeanor battery, fourth degree sexual assault, and damage to property—were substantially related to employment as a lighting applications specialist who would have contact with the public; “Whether the crime is an upsetting one may have nothing to do with whether it is substantially related to a particular job.”); Staten v. Holton Manor, supra, ERD Case No. CR201303113 (LIRC, Jan. 30, 2018) (holding that skilled nursing facility could not refuse to hire based on misdemeanor theft conviction that had been expunged; permitting the employer to do so would conflict with the purpose of the statute permitting expungement, which is to permit certain persons to “wipe the slate clean of their offenses and to present themselves to the world—including future employers—unmarked by past wrongdoing.”).

[10] For example, Minnesota’s Criminal Rehabilitation Act of 1974 prohibits discrimination in public employment and licensing and sets out a detailed set of standards for determining whether a criminal record is “directly related” to a specific job so that it justifies adverse employment action. See Minn. Stat. § 364.03, subd. 2. Even where a crime is found to be directly related, a person may not be disqualified if the person can show “competent evidence of sufficient rehabilitation and present fitness to perform the duties of the public employment sought or the occupation for which the license is sought.” § 364.03, subd. 3. Rehabilitation may be established by a record of law-abiding conduct for one year after release from confinement, and compliance with all terms of probation or parole. The problem is that, unlike the laws enacted in Wisconsin and New York, the Minnesota law contains no enforcement mechanism, leaving aggrieved individuals to seek relief in the courts, which have tended to interpret the standard in favor of the employer. See, e.g., Peterson v. Minneapolis City Council, 274 N.W.2d 918 (Minn. 1979) (finding that conviction for attempted theft by trick directly related to the operation of a massage parlor); In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987) (holding that embezzlement directly related to fitness to teach; teacher with 20 years of service terminated in spite of efforts to make restitution); In re Shelton, 408 N.W.2d 594 (Minn. Ct. App. 1987).

[11] See, e.g., Green v. Missouri Pacific Railroad Co., 523 Fed. 2d 1158 (8th Cir. 1975), and discussion of early EEOC practice and policies in Love et al., Collateral Consequences of Criminal Conviction, supra note 6 at § 6:4 (“Title VII – Applied to criminal records – Judicial interpretations”).

[12] See Haw. Rev. Stat. §§ 378-2.5(b), (c) (an employer may withdraw a conditional offer of employment only if a felony conviction within the most recent 7 years or a misdemeanor within 5 years “bears a rational relationship to the duties and responsibilities of the position.”).  The look-back periods for both felonies and misdemeanors were reduced from 10 years in 2021 by SB2193.  See also Sheri-Ann S.L. Lau, Recent Development: Employment Discrimination Because of One’s Arrest and Court Record in Hawaii, 22 U. Haw. L. Rev. 709, 714-15 (2000).

[13] See D.C. Code §§ 1-620.42, 1-620.43. Public employers and private employers with 10 or more employees may not inquire into an applicant’s criminal record until after the employer has extended a conditional offer of employment, may not consider arrests or charges that are not pending and that did not result in a conviction, and may withdraw a conditional offer of employment based on an applicant’s conviction history only for a “legitimate business reason” that is “reasonable” in light of a multi-factor test. The applicant may also file a complaint with the D.C. Office of Human Rights, which can bring administrative proceedings against an employer that it believes has violated the law and levy fines.

[14] See Cal. Gov’t Code § 12952. It is unclear what effect the enactment of § 12952 will have on DFEH regulations, also promulgated in 2017, providing that consideration of criminal history may violate FEHA if it has “an adverse impact on individuals on a basis protected by the Act, including, but not limited to, gender, race, and national origin.” Cal. Code Regs. tit. 2 § 11017.1(d)–(g). Because the regulations are not coextensive with § 12952 and because they are rooted in a theory of liability not based directly on criminal history discrimination, it is possible that they may provide an alternate path to relief for some applicants disqualified due to criminal history.

[15] 775 Ill. Comp. Stat. Ann. 5/1-103, 5/2-103.1. By virtue of amendments made the year before, the Act already prohibited inquiries about or consideration of non-conviction records, juvenile records, or expunged or sealed records. Id. at 5/3-103. A claim of racial discrimination has also been sustained under this law where a criminal conviction was the articulated basis for a refusal to hire. See Bd. of Trs. v. Knight, 516 N.E.2d 991, 996-97 (Ill. App. Ct. 1987) (stating that no business necessity justified denial of employment as university police position to person convicted of single misdemeanor weapons charge; mitigating circumstances existed including time passed since conviction and record of responsible employment).

[16] See Mass. Gen. Laws ch. 151B, § 4(9) (It shall be an unlawful practice for an employer “to request any information . . . regarding: (i) an arrest, detention, or disposition regarding any violation of law in which no conviction resulted, or (ii) a first conviction for any of the following misdemeanors: drunkenness, simple assault, speeding, minor traffic violations, affray, or disturbance of the peace, or (iii) any conviction of a misdemeanor where the date of such conviction or the completion of any period of incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date of such application for employment or such request for information, unless such person has been convicted of any offense within five years immediately preceding the date of such application for employment or such request for information”). The law is enforced by the Massachusetts Commission against Discrimination, and procedures are set forth in Mass. Gen. Laws ch. 151B, § 5.

[17] La. Rev. Stat. Ann. § 23:291.2 prohibits discrimination in hiring by public and private employers based on criminal history records and provides criteria for considering criminal records. Specifically, unless otherwise provided by law, an employer may not request or consider an arrest record or charge that did not result in a conviction if such information is received in the course of a background check. The statute further provides that when considering other types of criminal history records, an employer can make an individual assessment of whether an applicant’s criminal history record has a “direct and adverse relationship” with the specific duties of the job that may justify denying the applicant the position. To make that assessment, the employer must consider various factors. The statute requires the employer to make available to the applicant any background check information used during the hiring process, but there are no other procedural protections written into the bill, and no provisions for enforcement.

[18] See Nev. Rev. Stat. §§ 245.046, 268.402.

[19] Beth Avery & Han Lu, Ban-the-Box, U.S. Cities, Counties, and States Adopt Fair Hiring Policies, National Employment Law Project (October, 2021), https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/.

[20] Id. According to this report, the states that have mandated the removal of conviction history questions from job applications for private employers are California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

[21] On December 17, 2019, The National Employment Law Project published a summary of the law’s provisions and a set of FAQs. https://www.nelp.org/publication/faq-fair-chance-to-compete-for-jobs-act-of-2019/. See also CCRC Staff, Fair Chance Act advances in Congress, (Dec. 16, 2019), https://ccresourcecenter.org/2019/12/16/fair-chance-act-advances-in-congress/. As of the date of this report’s publication, the Office of Personnel Management had not issued the required regulations implementing the law’s provisions.

[22] Id. As of February 2022, the Office of Personnel Management had not issued regulations implementing this statute on the schedule required.

[23] See Restoration of Rights Project, 50-State Comparison: Criminal Record in Employment & Licensing, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncomparison-of-criminal-records-in-licensing-and-employment/.

[24] See Colo. Rev. Stat. § 24-5-101(3)(c), retaining exclusions for non-conviction records, and convictions that have been sealed, expunged or pardoned, and including for the first time convictions where “a court has issued an order of collateral relief specific to the employment sought by the applicant.” If none of the exclusions in (3)(c) apply, the agency “shall consider” the following factors in deciding whether to disqualify an applicant based on criminal record: (1) the nature of the conviction; (2) whether the conviction is “directly related” to the job; (3) the applicant’s rehabilitation and good conduct; and (4) time elapsed since conviction. Id. § 24-5-101(4).

[25] See Anastasia Christman & Michelle Rodriguez, Research Supports Fair-Chance Laws, National Employment Law Project (Aug. 2016), https://www.nelp.org/publication/research-supports-fair-chance-policies/; Washington Lawyers Committee for Civil Rights and Urban Affairs, The Collateral Consequences of Arrests and Convictions under D.C., Maryland, and Virginia Law (2014), http://www.washlaw.org/pdf/wlc_collateral_consequences_report.pdf; D.C. Council Comm. on the Judiciary and Public Safety, Report on Bill 20-642, the ‘Fair Criminal Records Screening Amendment Act of 2014’ at 3 (May 28, 2014); Council for Court Excellence, Unlocking Employment Opportunities for Previously Incarcerated Persons in the District of Columbia (2011), http://www.courtexcellence.org/uploads/publications/CCE_Reentry.pdf.

[26] Researchers have determined that ban-the-box policies may increase racial discrimination due to employers’ exaggerated impressions of racial differences in conviction outcomes, thereby artificially decreasing the number of qualified minority applicants who are given a second look. See, e.g., Amanda Agan & Sonja Starr, Ban the Box, Criminal Records, and Racial Discrimination: A Field Experiment, 133 Quart. J. Econ. 1, 195-235 (2018); Jennifer Doleac & Benjamin Hansen, The Unintended Consequences of “Ban the Box”: Statistical Discrimination and Employment Outcomes When Criminal Histories Are Hidden, 38 J. Lab. Econ. 2, 321-74 (2020), https://www.journals.uchicago.edu/doi/abs/10.1086/705880?af=R&mobileUi=0&; see also Alana Semuels, When Banning One Kind of Discrimination Results in Another, The Atlantic (Aug. 4, 2016), https://www.theatlantic.com/business/archive/2016/08/consequences-of-ban-the-box/494435/.

[27] See Love et al., Collateral Consequences of Criminal Conviction, supra note 6 at §§ 6:18 through 6:29.

[28] See Texas profile Part IV, Restoration of Rights Project. Texas also relies on strict regulation of background screeners. Screeners are required to obtain records only from a criminal justice agency and must give individuals the right to challenge their accuracy. Screeners may not publish records whose disclosure is prohibited under another state law (e.g., records that have been expunged, or which are subject to an “order of nondisclosure”), and there is a civil remedy for violations.

[29] See Morris M. Kleiner & Evgeny F. Vorotnikov, At What Cost, State and National Estimates of the Economic Costs of Occupational Licensing, Institute for Justice (Nov. 2018), https://ij.org/wp-content/uploads/2018/11/Licensure_Report_WEB.pdf; Stephen Slivinski, Center for the Study of Economic Liberty at Arizona State University, Turning Shackles into Bootstraps: Why Occupational Licensing Reform Is the Missing Piece of Criminal Justice Reform (Nov. 7, 2016), https://research.wpcarey.asu.edu/economic-liberty/wp-content/uploads/2016/11/CSEL-Policy-Report-2016-01-Turning-Shackles-into-Bootstraps.pdf.

[30] The White House issued a report in July 2015 on occupational licensing, which noted that 25 states have standards requiring some kind of relationship between a license and an applicant’s criminal history, 25 states and the District of Columbia “have no standards in place.” See White House, Occupational Licensing: A Framework for Policymakers, 35–36 (July 2015), https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf. In April 2016, President Obama directed federal departments and agencies to ensure that federally-issued occupational licenses are not presumptively denied on the basis of a criminal record, and the Department of Justice announced support for technical assistance to states pursuing similar initiatives, as part of $5 million grant solicitation focused on reentry. See White House Press Secretary, Fact Sheet: New Steps to Reduce Unnecessary Occupation Licenses that are Limiting Worker Mobility and Reducing Wages (June 17, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/06/17/fact-sheet-new-steps-reduce-unnecessary-occupation-licenses-are-limiting. The extent to which reforms have been successful in the intervening five years is reflected by the fact that by the end of 2021 only five states had no general standards in place: Alaska, Alabama, Massachusetts, South Carolina, and South Dakota.  In 2020 and 2021, Vermont enacted two measures regulating occupational licenses in dozens of professions for the first time, providing general standards for consideration of criminal records, and providing for a preliminary decision on whether a record would be disqualifying. See Vt. Stat. Ann. § 129a (10), as amended by H289 (2021); see also Vermont profile, Restoration of Rights Project.

[31] Notable enactments included those in New Jersey (1968), Colorado (1973), Washington (1973), Hawaii (1974), New Mexico (1974), Minnesota (1974), New York (1976), North Dakota (1977), Pennsylvania (1979), and Wisconsin (1981). See Love et al., Collateral Consequences of Criminal Conviction, supra note 6 at § 6:16. Many of these laws did little more than prohibit outright exclusion. Colorado’s law, for example, provides that a conviction for a felony or moral turpitude offense does not “in and of itself” prevent public employment or licensure (stating that with exceptions for certain sensitive positions), but may be considered in determining a person’s “good moral character.” Colo. Rev. Stat. § 24-5-101(2). Others are stronger. For example, North Dakota’s provisions prohibit denial of licensure unless there is a determination, considering a number of factors that a person is not sufficiently rehabilitated (with presumption of rehabilitation five years after completion of sentence) or the offense has a “direct bearing” on ability to serve. N.D. Cent. Code § 12.1-33-02.1. Minnesota has not substantially amended its law since it was enacted in 1974, and it was among the five top scorers in the ratings published in 2020 by the Institute for Justice. See infra note 234.

[32] See, e.g., New Jersey’s Rehabilitated Convicted Offenders Act of 1968 (as amended in 2021), N.J. Stat. Ann. § 2A:168A-1; Minnesota’s Criminal Rehabilitation Act (1974), Minn. Stat § 364.01 et seq.; New Mexico’s Criminal Offender Employment Act of 1974 (as amended in 2021), N.M. Stat. Ann. §§ 28-2-1 et seq.

[33] Connecticut, Kentucky, Minnesota, New Hampshire, New Jersey, New Mexico, New York, and Washington still retain the structure of regulating public employment and licensing together that prevailed during the 1960s and 1970s. While most of these states have since amended their laws, the licensing law adopted almost half a century ago in Minnesota has changed little since 1974, and it still gets high marks in the Institute for Justice’s 2020 report. See infra note 234. North Dakota and Virginia also still operate under detailed licensing regulations dating from the 1980s or earlier. Pennsylvania recently abandoned that structure in enacting a new chapter 31 of Title 68 to impose detailed substantive standards on its licensing agencies, though its new law still offers little by way of procedural protection for applicants with a record. See CCRC Staff, Pennsylvania expands access to 255 licensed occupations for people with a record, (July 14, 2020), https://ccresourcecenter.org/2020/07/14/pennsylvania-expands-access-to-255-licensed-occupations-for-people-with-a-record/.

[34] While occupational licensing was not the most well-publicized type of reform during the period of 2013-2016, reforms during these years set the stage for the burst of legislative activity around licensing that began in 2018. New laws during this period addressed licensing in four different ways: (1) seven states excluded certain records from consideration in licensing; (2) four states expanded the benefits of certificates of relief in licensing; (3) five states imposed new standards for license denials based on criminal record; and (4) one state provided greater oversight of licensing boards. See Collateral Consequences Resource Center, Four Years of Second Chance Reforms, 2013-2016 (2017), https://ccresourcecenter.org/2017/02/08/round-up-of-recent-second-chance-legislation-2013-2016/.

[35] See Nick Sibilla, Barred from Working: A Nationwide Study of Occupational Licensing Barriers for Ex-Offenders,” Institute for Justice (May 2020), https://ij.org/report/barred-from-working/.  This report has been updated as new laws are enacted.

[36] The Institute for Justice initially released its model law as part of its Occupational Licensing Review Act (OLRA). See Institute for Justice, Model Occupational Licensing Review Law: Reforming Occupational Licensing Boards following NC Dental Board v. FTC, (2018), https://ij.org/activism/legislation/model-legislation/model-economic-liberty-law-1/. Later, the provisions of OLRA relating to criminal records were revised and extended as its Collateral Consequences in Occupational Licensing Act (CCOLA) (2019), https://ij.org/wp-content/uploads/2019/11/10-31-2019-Model-Collateral-Consequences-in-Occupational-Licensing-Act-2.pdf.

[37] NELP released its Model State Law as part of a report on barriers to licensing for people with a record. See Michelle Rodriguez and Beth Avery, Unlicensed and Untapped: Removing Barriers to State Occupational Licenses for People with Criminal Records, National Employment Law Project (2016), http://www.nelp.org/publication/unlicensed-untapped-removing-barriers-state-occupational-licenses. NELP issued a report on its progress in 2018: Maurice Emsellem, Beth Avery, & Phil Hernandez, Fair Chance Licensing Reform Takes Hold in the States, National Employment Law Project (May 15, 2018), https://www.nelp.org/publication/fair-chance-licensing-reform-takes-hold-states/.

[38] Arizona (2017, 2018, 2019, 2021), Arkansas (2019, 2021), California (2018), Colorado (2018), Connecticut (2017), Delaware (2018), District of Columbia (2021), Florida (2019), Georgia (2016, 2021), Idaho (2020), Illinois (2016, 2017, 2021), Indiana (2018, 2019), Iowa (2019, 2020), Kansas (2018), Kentucky (2017), Louisiana (2017), Maryland (2018, 2019), Massachusetts (2018), Michigan (2021), Mississippi (2019), Missouri (2020, 2021), Nebraska (2018), Nevada (2019), New Hampshire (2018), New Jersey (2021), New Mexico (2019, 2021), New York (2019), North Carolina (2019), Ohio (2019, 2021), Oklahoma (2019), Pennsylvania (2020), Rhode Island (2020, 2021) Tennessee (2016, 2018, 2021), Texas (2019), Utah (2019, 2020), Vermont (2020, 2021), Washington (2021), West Virginia (2019, 2020), Wisconsin (2018), and Wyoming (2018). Citations and descriptions of these laws can be found in the relevant state profiles from the Restoration of Rights Project. They are summarized in the RRP’s 50-state comparison chart on employment of licensing, https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncomparison-of-criminal-records-in-licensing-and-employment/, which links to a longer description of each state’s law.

[39] The regulatory schemes enacted by Kansas and Nebraska in 2018, Mississippi, Nevada, and West Virginia in 2019, Iowa and Idaho in 2020, and Vermont in 2021, fall into this first-time category. Alabama’s 2019 law, modeled on the Uniform Collateral Consequences of Conviction Act, was also that state’s first regulation of licensing decisions.

[40] For example, the laws enacted by New Jersey, New Mexico, and Washington in 2021, and by Missouri and Pennsylvania in 2020, represented those states’ first significant regulation of occupational licensing in more than 40 years.  In 2019, Arkansas, Kentucky, Maryland, North Carolina, Oklahoma, and Texas did the same.

[41] The provisions of each state’s law are in the Restoration of Rights Project. https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncomparison-of-criminal-records-in-licensing-and-employment/.

[42] As of December 2021, 19 states allowed individuals to petition a licensing board at any time to determine if their criminal record would be disqualifying; 22 states had done away with vague criteria like “good moral character” for some or all licenses; 19 states had prohibited consideration of non-conviction records and 18 states prohibited consideration of sealed or expunged convictions; 18 states had blocked licensing boards from denying people a license unless their record is “directly related” to the license; and 10 states instituted new reporting requirements. See Institute for Justice, State Occupational Licensing Reforms for Workers with Criminal Records (last visited Dec. 27, 2021), https://ij.org/activism/legislation/state-occupational-licensing-reforms-for-people-with-criminal-records/ (also collecting information on which states prohibit consideration of certain convictions after a stated period of time).  The District of Columbia falls into all of these categories.

[43] The District of Columbia’s comprehensive 2021 law is described in the D.C. profile from the Restoration of Rights Project, and in a summary of new 2021 occupational licensing laws published on the CCRC website on June 10, 2021, https://ccresourcecenter.org/2021/06/10/new-occupational-licensing-laws-in-2021/#more-38007.  Iowa enacted a general licensing law for the first time in 2020, with a direct relationship standard, a broad definition of rehabilitation (presumed after 5 years for most crimes), a preliminary determination, and strong due process protections. See the new Chapter 272C of the Iowa Code, added by HF2627. The law applies to all licenses save for a few in health care. Previously, the only licenses that were related were in trades taught in the state’s prisons (e.g., electrician, plumber, mechanical, contractor, and barbering licenses). Indiana’s licensing law is described at CCRC Staff, Indiana enacts progressive new licensing law, (April 3, 2018), https://ccresourcecenter.org/2018/04/03/indiana-enacts-progressive-new-licensing-law/. Indiana was the only state to achieve an “A” rating in the Institute for Justice’s May 2020 “Barred from Working” grading of state laws (though it has since been downgraded slightly to an A-, joining Iowa, D.C., New Hampshire, and Ohio). See supra note 234. The significance of extending regulation to licenses and permits issued by counties and municipalities is underscored in Amy P. Meek, Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level, 75 Ohio St. L.J. 1 (2014).

[44] N.H. Rev. Stat. Ann. § 332-G; Ohio Rev. Code Ann. § 9.78(C); R.I. Gen. Laws § 28-5.1-14.  The first two states apply a “direct relationship” standard to licensing boards, while Rhode Island’s standard is “substantial relationship,” and all three define it in detail. New Hampshire and Ohio provide for a preliminary determination for an aspiring applicant, while Rhode Island excludes certain records from consideration (including non-convictions, misdemeanors, and felonies that are not “substantially related”). All three states allow applicants to establish rehabilitation by detailed standards; provide detailed procedures in the event of denial, suspension, or revocation; and include accountability standards.

[45] CCRC Staff, Two southern states enact impressive licensing reforms, (Sept. 18, 2019), https://ccresourcecenter.org/2019/09/18/two-southern-states-enact-impressive-occupational-licensing-reforms/. The laws enacted by these two states were rated among the five strongest by the Institute for Justice in its May 2020 Barred from Working study. See supra note 234.

[46] See note 230, supra.

[47] The Minnesota Criminal Rehabilitation Act (1974), Minn. Stat § 364.01 et seq., prohibits discrimination in public employment and licensing. It has only been amended once since its enactment, in 2013 to add text recognizing the special circumstances of veterans. The virtues of this half-century-old law were affirmed when Minnesota was judged among the top five states in the Institute for Justice’s May 2020 “Barred from Working” grading of state laws. See supra note 234.

[48] See CCRC Staff, Pennsylvania expands access to 255 licensed occupations for people with a criminal record July 14, 2020), https://ccresourcecenter.org/2020/07/14/pennsylvania-expands-access-to-255-licensed-occupations-for-people-with-a-record/. Pennsylvania’s licensing law, like its employment law, has strong substantive standards but almost no procedures to ensure these standards are complied with, remitting disappointed applicants to the courts. The law does require agencies to report their progress to the legislature in two years, so perhaps this will encourage compliance.

[49] See Ala. Code § 12-26-5 (Occupational Licensing Order of Limited Relief); Wash. Rev. Code § 9.97.010 (Certificates of Restoration of Opportunity). Both these judicial certificates may result in removing a mandatory bar to licensure, but without a standard to guide discretionary decision-making thereafter, Alabama’s certificate appears toothless. Washington’s law otherwise imposes a “direct relationship” standard and allows only convictions within 10 years to be considered.

[50] See Collateral Consequences Resource Center, Pathways to Reintegration: Criminal Record Reforms in 2019, at 24, 60-61 (2020), https://ccresourcecenter.org/wp-content/uploads/2020/02/Pathways-to-Reintegration_Criminal-Record-Reforms-in-2019.pdf.

[51] See supra note 202 for a discussion of the term “clean slate.”