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 and licensees.

In the first three months of 2024, two more Midwestern states (South Dakota and Nebraska) enacted comprehensive changes to their licensing laws, while a third state (Pennsylvania) was poised to close a major loophole in its licensing scheme. These reforms continue a nationwide trend that since 2017 has seen 43 states and the District of Columbia enact 79 separate laws* to limit state power to deny opportunity to qualified individuals based on their criminal history. Significant legislation is under serious consideration in half a dozen additional states, so we expect this year to produce another bumper crop of fair chance licensing laws.

The new laws are described briefly below, and additional details can be found in the relevant state profile from the Restoration of Rights Project.

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.

Pennsylvania

A third 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.

Previews:

There are additional important fair licensing reforms being seriously considered in several states, including Alabama, Colorado, Georgia, Kentucky, Massachusetts, and New York.  We hope our readers will alert us to others.

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*Our count is based on the listing in footnote 237 of The Many Roads from Reentry to Reintegration, supplemented by our annual reports on new laws enacted since that report was published in March 2022.