Expanding employment opportunities in licensed occupations has been a priority for criminal record reformers in the past half dozen years. Happily, fair chance licensing reforms also appear less politically controversial than some others, with Midwestern states like Iowa and Indiana among the most progressive in the Nation in their treatment of justice-impacted license applicants in the licensing process.

In the first half of 2024, two more Midwestern states (South Dakota and Nebraska) enacted comprehensive changes to their licensing laws, Colorado produced a major reform in its licensing scheme, and Pennsylvania closed a gaping loophole in its licensing rules. These major reforms continue a nationwide trend that since 2017 has seen 44 states and the District of Columbia enact 86 separate laws* to limit state power to deny workplace opportunities to qualified individuals based on their criminal history.

The new 2024 laws are described briefly below, and additional details can be found in the relevant state profile from the Restoration of Rights Project. A few less comprehensive licensing reforms are also mentioned, as are bills not yet enacted that are being given serious consideration in half a dozen other states.

South Dakota

In February, South Dakota became the most recent state to enact a uniform approach to licensing justice-impacted individuals. SB 57. As we noted in 2022 in The Many Roads from Reentry to Reintegration report, South Dakota was one of only 3 states that had “no general law or regulations setting limits on how licensing boards may consider an applicant’s criminal record.”  But now, under SB 57, licensing boards may only disqualify applicants with a criminal history if they have been convicted of a crime that “directly relates” to the license at hand, in which case the agency must consider whether “the applicant or licensee has been rehabilitated to the extent that the person no longer poses the kind of risk to the profession or occupation associated with that type of conviction.”

Boards are further prohibited from considering non-conviction records, or convictions that have been pardoned, sealed, or expunged. The new law also requires boards to provide applicants with an opportunity for a hearing before denial, and a right to appeal the board’s decision. Critically, SB 57 also establishes a preliminary determination process that allows potential applicants to petition a board to see if their record would be disqualifying before they invest in any costly training or coursework.

Nebraska

A few weeks after South Dakota adopted its first-time reforms, Nebraska produced an expansive overhaul of its licensing restrictions that resulted in some of the nation’s strongest protections for justice-impacted people seeking licensure. Nebraska’s LB 16 strengthens the protections offered by the new South Dakota law by authorizing denial only if a conviction “directly and specifically” relates to the occupation; if obtaining a license “would pose a direct and substantial risk to public safety because the individual has not been rehabilitated;” and, starting next year, only if a license applicant or licensee has been convicted of an offense on a list of 27 serious violent or fraud offenses. The new Nebraska law forbids consideration of non-conviction records or records that have been expunged, set aside, sealed, or pardoned.  If more were required, the new law prohibits consideration of convictions older than 3 years if no prison sentence was imposed, and three years after release from prison if it was — unless the conviction is one of the 27 potentially disqualifying convictions defined in the statute.

Nebraska’s scheme builds on its 2018 Occupational Board Reform Act, which established the policy of the state to protect the “fundamental right of an individual with a criminal history to obtain an occupational license, government certification, or state recognition of the individual’s personal qualifications.” That law included a  process for a preliminary determination to ascertain future eligibility  The 2024 law excludes a number of licensing agencies from the reach of Nebraska’s licensing reforms, including those previously enacted in 2018, an unfortunate limitation in an otherwise impressive reform. The 2018 law and its current extension are described in detail in the Nebraska profile from the Restoration of Rights Project.

Colorado

In June, Governor Polis signed into law a major reform of Colorado’s occupational licensing laws, building like Nebraska on earlier reforms from 2018. The “Ex-Offenders Practice in Regulated Occupations” Act (HB24-1004) allows a licensing agency to consider an applicant’s conviction only for a 3-year period beginning on the date of conviction or the end of incarceration, whichever date is later. (The earlier reforms prohibited consideration of non-conviction records, and convictions that have been sealed or pardoned.) Only if an individual’s conviction is determined to be “directly related” to the profession or occupation may the agency consider the conviction  after the 3-year period has passed, and even then it may only deny or refuse to renew a license if it determines that the applicant has not been rehabilitated and is unable to perform the duties and responsibilities of the profession or occupation without creating “an unreasonable risk to public safety.”  

HB24-1004 also allows an individual to petition a licensing agency to determine whether a criminal conviction will preclude the individual from becoming licensed prior to that individual completing any other requirements for such credentialing, and even while the individual is still incarcerated. It also prohibits licensing boards from using vague terms like “good moral character,” “moral turpitude,” and “character and fitness,” repealing provisions authorizing denials of licensure based on those terms. 

Pennsylvania

A fourth significant licensing reform was put in place in Pennsylvania, where its State Bureau of Professional and Occupational Affairs released regulations to limit the ability of licensing boards to reject qualified applicants based on their criminal history. In 2020, the state required each board to develop a list of crimes considered “directly related”  to the license sought. Conviction of one of these crimes would create a “rebuttable presumption” that licensure of that individual would pose a substantial risk to public safety, without regard to how long ago the conviction occurred.

Perhaps predictably, and without general guidance from the State, individual boards stretched the limits of their authority, proposing long lists of crimes to be directly related to the licenses they issue. The potential damage done to thousands of individuals – particularly those with older criminal records — was described in an extended piece posted last fall by Community Legal Services of Philadelphia.  Responding to the concerns exoressed by advocates, the State Bureau eliminated hundreds of these proposed offenses on grounds that they bore only an attenuated relationship to the particular license. More significantly, convictions more than 5 years old are no longer to be considered “directly related.”

“These regulations will allow people who do not present risk to move on to better jobs and provide better lives for their families. They will also help businesses fill job openings with fully qualified workers,” said Sharon Dietrich, Litigation Director for Community Legal Services, which spearheaded the coalition that backed the new regulations. “We thank the Shapiro Administration and the boards and occupations for issuing these win-win regulations.”

Final approval of these regulations by the Pennsylvania Independent Regulatory Review Commission is expected at its public meeting on April 18. For further details, see our post from July 2020 as well as the Pennsylvania profile in the RRP.

Other reforms and previews

Several other states have added features toi their occupational licensing laws this year.  Arizona enacted two laws (SB 1367 and HB 2308) that reduced the “lookback” time for disqualification from seven years to three, and modified the standard for disqualification.  This makes the eighth and ninth law ernacted by Arizona since 2019 to strengthen occupational licensing protections. Tennessee eliminated vague language referring to “good moral character” and “character and fitness” (approving a bill that was considerably watered down from its original terms by the time of passage), Oregon created a fairly modest preliminary determination procedure, and Florida‘s governor distinguished himself by vetoing an even more modest amendment of the state’s barber and cometology licensing statute.

There are several significant pending bills. Massachusetts has taken significant steps toward enactment of a comprehensive licensing reform law, New York is considering a progressive expansion of its venerable “direct relationship” standard, amd Georgia is close to enacting a law that would impose general limits on consideration of criminal records in the licensing process. Maryland and Kentucky are looking closely at bills authorizing a preliminary consideration process.

We hope our readers will alert us to other potential licensing reforms that may be enacted later this year or next.