Tag: Tennessee

Collateral Consequences in Occupational Licensing Act

We’ve noted in recent posts the numerous states that, just in the past three or four months, have enacted broad occupational licensing reforms affecting people with a criminal record.  Many of these new laws have been influenced by a model developed by the Institute for Justice (IJ), a libertarian public interest law firm that has been litigating and lobbying to reduce barriers to work for more than two decades.  In turn, states like Indiana, Kansas, Tennessee and Wisconsin have built upon IJ’s model to enact even more progressive schemes intended to ensure that people with the requisite professional qualifications will not be unfairly excluded based on a record of arrest or conviction. Now IJ has incorporated many of these progressive refinements into its original model licensing law, the Occupational Licensing Review Act (OLRA), and broken out the provisions relating to criminal records into a free-standing model act specifically directed at managing collateral consequences in the occupational licensing context, the new Collateral Consequences in Occupational Licensing Act (CCOLA). The CCOLA has the same key features as the original OLRA: It provides individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; It allows the individual to seek this determination at any time, including before investing in the required training necessary to otherwise qualify for the license, requires a written decision within 90 days, and limits what the agency may charge for this determination to $100; It limits the types of records that an agency may consider in a licensing decision to convictions of serious or violent crimes; It shifts the burden of proof to the agency to establish that a petitioner’s conviction is substantially related to the state’s interest in protecting public safety; It requires agencies to provide written reasons justifying denial of a license based on conviction in terms of public safety; and It requires each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action. In addition to these features, IJ has recently further clarified the types of criminal conduct that may be considered in licensing decisions, and specifically prohibited the use of vague criteria like “good moral character” as a basis for exclusion.   As revised, IJ’s model laws  now provide that licensing agencies may not consider non-conviction records, juvenile adjudications, non-violent misdemeanors, and most felonies and violent misdemeanors that occurred more than three years prior to seeking licensure.  See CCOLA, 100.02, Subd. 7.  Agencies may consider violent felonies and sexual offenses at any time, although even these records must still be tested against the “public safety” standard: The board may deny the petition only if it establishes by clear and convincing evidence that: 1. The individual was convicted of a felony or violent misdemeanor, not excluded by subdivision 7, which is directly, substantially and adversely related to the state’s interest in protecting public safety; and 2. The granting of state recognition will put the individual in a position where the individual is more likely than not to reoffend and cause harm. See CCOLA, 100.02, Subd 10(c). IJ’s website points out that “[m]ore than 25 percent of workers need a government-issued license to work,” so lowering barriers to licensure for people with a criminal record has important implications for efficiency and public safety.  In introducing its stand-alone CCOLA model, IJ’s website states the following: An honest living is one of the best ways to prevent those with a criminal record from re-offending. But many occupational licensing laws block or burden ex-offenders from entering regulated fields.  Numerous licensing laws have morality clauses that (1) bar automatically and permanently ex-offenders from working without any individualized review or (2) require the ex-offender to prove a negative—that the ex-offender’s past crimes will not cause him to harm customers in the future. Such provisions ironically may decrease public safety.  States with prohibitions and high burdens on entry have higher criminal recidivism. Conversely, states that have no such bars and low burdens have seen declines in recidivism, according to Professor Stephen Slivinski’s landmark study Turning Shackles into Bootstraps. IJ’s website surveys some of the key provisions of many of the recently enacted state licensing reforms.  It also very happily links to the relevant 50-state chart from the Restoration of Rights Project, which we very much appreciate! With an enrolled bill sitting on its governor’s desk for action, New Hampshire is poised to become the 10th state to enact comprehensive licensing reform in 2018.  In addition to Indiana, Kansas, Tennessee and Wisconsin, Arizona, Maryland, Massachusetts, Nebraska, and Wyoming have all just this year enacted new laws incorporating many of the features of IJ’s model law.  Illinois anticipated these states by six months when it significantly amended its licensing scheme to reflect IJ’s approach in August 2017. We were pleased to be able to work with Lee McGrath of IJ’s office in Minneapolis in developing many of the amended features of the CCOLA, which have also been folded into IJ’s broader model occupational licensing act.  We look forward to continuing to work with Lee and his colleagues in months to come.   Read more

More states enact major “second chance” reforms

In recent weeks, three more states — Colorado, Louisiana and Vermont — have enacted laws intended to make it easier for people with a criminal record to find and keep employment, or otherwise to regain rights and status. We are just now noting Wyoming’s enactment in March 2018 of general standards for professional and occupational licensure, which impose new restrictions on how criminal record may be taken into account by licensing agencies, and its amendment of more than a dozen specific licensing laws. In the first five months of 2018 alone, a total of 21 states have enacted legislation to improve opportunities for people with a criminal record, with more similar laws evidently on the way.  States have enacted several different types of “second chance” laws this year, from expansion of voting rights to expansion of judicial authority to relieve collateral consequences at sentencing. On May 25, Vermont Governor Phil Scott signed into law an expansion of the state’s expungement authority for both adult and juvenile offenders, reducing waiting periods and other eligibility criteria for qualifying felony and misdemeanor convictions.  The new law also authorizes courts to expunge non-conviction records 12 months after the conclusion of the case, without need for a petition from the defendant, and without regard to the nature of the offense.  This is the third time in recent years that Vermont has extended eligibility for expungement. On May 29, Colorado Governor Hickenlooper signed a bill extending the state’s existing authority for sentencing courts to waive application of collateral consequences affecting employment, licensing, and other opportunities and benefits, to make this relief available in all cases regardless of sentence.  Previously this waiver authority was available only in cases involving a community-based penalty.  Courts are authorized to take action as early as sentencing and throughout the period an individual is under sentence.  In this respect, the law resembles the authority proposed by the American Law Institute in the collateral consequences provisions of its new Mode Penal Code: Sentencing.  The Colorado law is described in detail in the Colorado profile from the Restoration of Rights Project. At the end of May, Louisiana Governor John Bel Edwards approved several “second chance” bills:  One new law extends voting rights to anyone under sentence for a felony who has not been actually incarcerated in the past five years; two additional laws make minor adjustments to the state expungement law, to exempt deferred adjudication cases from the 15-year eligibility waiting period for a second expungement, and to add to the requirements for filing an expungement motion.  Another new law requires the governor to conduct regular periodic reviews of the standards applied by occupational licensing agencies.  As finally enacted, this last-mentioned law substantially watered down provisions in earlier versions of the legislation that would have limited agency consideration of criminal records in licensing actions. Earlier this spring, Wyoming enacted a new provision of its general state licensing code establishing a “direct relationship” standard for consideration of conviction by all licensing agencies not otherwise subject to a specific contrary statutory standard. See Wyo. Stat. § 33-1-304.  See Enrolled Act 63 (March 2018), available at http://www.wyoleg.gov/2018/Enroll/SF0042.pdf.  This provision prohibits consideration of prior convictions that are more than 20 years old, except where the person is still under sentence or the sentence was completed fewer than 10 years ago, and unless the elements of the offense are “directly related to the specific duties and responsibilities of that profession or occupation.”  Among the new law’s policies is that agencies should ensure that applicants have an adequate opportunity to appeal a denial. Wyoming also amended more than a dozen specific professional and occupational licensing statutes to rescind vague qualifications like “good moral character,” and to substitute functional criteria specifically tying the nature of a particular crime to the licensed activity pursuant to a direct relationship standard.  Licensing schemes affected include those regulating teachers, guides and outfitters, engineers, veterinarians, and nursing home administrators.  Licensing standards for chiropractors, nurses, optometrists, dental hygienists, social workers, and marriage and family counselors and substance abuse counselors were also amended.  Securities dealers and investment advisers, insurance agents, and athlete agents are covered by the reforms. Legislatures in several other states have passed bills that are currently awaiting approval of the governor, including Illinois, New Hampshire, and Tennessee.  The only “second chance” legislation we know of that was disapproved by the governor is the South Carolina legislature’s unsuccessful attempt to authorize expungement of drug convictions. We expect again to provide a summary of all new laws enacted in 2018 toward the end of the year, and we will also be keeping the state profiles and other resources in the Restoration of Rights Project up to date in real time.       Read more

New expungement legislation: Maryland and Oklahoma

The trend toward expanding expungement and sealing laws is continuing.  In the last week of April, the governors of Maryland and Oklahoma signed bills enlarging eligibility criteria and reducing waiting periods, joining Florida and Utah with new record-sealing enactments in 2018.  The provisions of these two newest laws are described below.  Similar legislation is well along in Illinois, Pennsylvania, Tennessee and Vermont.  Vermont S 173, enrolled and awaiting the governor’s signature, is of particular interest since it makes expungement automatic in some categories without the requirement of a petition or filing fee (“unless either party objects in the interest of justice”).   We are tracking these pending bills and will add them to the Restoration of Rights Project if and when they are enacted. Oklahoma:  On April 26, 2018, Oklahoma Governor Mary Fallon signed into law SB 650, making felony offenders eligible for expungement (sealing) for the first time without requiring that they first be pardoned.  Effective November 1, 2018, a person may apply to the court for expungement of a single nonviolent felony conviction 5 years after completion of sentence, if the person has not been convicted of any other felony or separate misdemeanor in the past seven (7) years,  and if no felony or misdemeanor charges are pending. Okla. Stat. Ann. § 18(A)(12) (as amended by SB 650 (2018)).  The 2018 law reduces the waiting period from 10 years to five; deletes a requirement that the person have no prior felonies, or any separate misdemeanor in the past 15 years; and omits a requirement that the person first be pardoned. Okla. Stat. Ann. § 18(A)(12), as amended.  Oklahoma’s additional provisions for expungement of misdemeanor convictions, non-conviction records, and pardoned felonies are explained in the Oklahoma profile from the Restoration of Rights Project. Maryland:  On April 24, Governor Larry Hogan signed SB 101, adding felony offenses involving theft, drug trafficking and burglary to the list of more than 100 misdemeanors first made eligible for expungement in 2016.  The waiting period for felonies is 15 years after completion of sentence, while most misdemeanants must wait 10 years. (Misdemeanors involving “domestically related crimes” and second degree assault are subject to a 15-year waiting period.)  In addition, SB 101 eliminated the three-year waiting period previously applicable to expungement of non-conviction records, except for “probation before judgment” cases.  The new provisions are explained in greater detail in the Maryland profile from the Restoration of Rights Project.  Also in April 2018, the Maryland legislature acted favorably on a bill to require state licensing agencies to report by October 1, 2018 on the number of licenses granted or denied based on conviction in the past five years.  The fact that HB 1597 has been awaiting Governor Hogan’s action for more than a month does not bode well for its prospects.  States that have enacted new general occupational licensing requirements this year include Indiana, Tennessee, Arizona, Wisconsin, Massachusetts and Nebraska, with an enrolled bill awaiting action in Kansas.  These new laws are the subject of several recent posts (see, e.g., here and here) and are written up in detail in the relevant state profiles from the RRP. Read more

Wisconsin joins crowd of states regulating occupational licensure

On April 16, Wisconsin Governor Scott Walker signed into law Act 278, making his state the sixth in the past two months to establish new rules on consideration of criminal record in the context of occupational and professional licensure.  Effective August 1, 2018, licensing boards in Wisconsin will be prohibited in most cases from denying or revoking a license based on arrests or pending charges, and required to justify in writing any adverse action based on conviction.  Boards will also be required to give applicants a preliminary determination as to whether a particular conviction will be disqualifying. Indiana, Arizona, Massachusetts, Nebraska and Tennessee have all recently enacted laws regulating how licensing boards treat arrests and convictions, in some cases with strikingly similar features, as described in recent posts here and here.  The conviction-related provisions of the model occupational licensing law proposed by the Institute for Justice are reflected in almost all of these new laws, though many of them go even farther to discourage unwarranted discrimination affecting as much as 25% of the U.S. workforce.      Act 278 puts new teeth into the provisions of Wisconsin’s Fair Employment Act that relate to occupational and professional licensing through a new subsection titled “Discrimination in Licensing.”  See Wisc. Stat. § 111.335 (4).  A licensing agency will be required, before denying or terminating a license based on a prior conviction, to state its reasons in writing, including “a statement of how the circumstances of the offense relate to the particular licensed activity.”  An agency must also provide individuals with an opportunity to show evidence of rehabilitation and fitness to engage in the licensed activity.  Moreover, “[i]f the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity . . . . the licensing agency may not refuse to license the individual or bar or terminate the individual from licensing based on that conviction.”  In addition to any evidence of rehabilitation adduced by the applicant, agencies are directed to take into account the nature and seriousness of the offense, any “mitigating circumstances or social conditions surrounding the commission of the offense,” the age of the individual at the time the offense was committed and the time elapsed since, and letters of reference by persons who have been in contact with the individual since. Negligent hiring protections are included for any firm that hired a licensee approved pursuant to an agency determination of rehabilitation.  See Wis. Stat. § 452.139. Act 278 tightens provisions of current law that permit denial of licensure based on a pending criminal charge, or based on a juvenile adjudication, if the offense conduct is “substantially related” to the licensed activity, by adding a proviso that the substantial relationship standard will be met in this context only if the charge or adjudication involved a “crime against life and bodily security” or a crime “against children.” Like most of the other recently enacted occupational licensing laws, Act 278 requires agencies to make it possible for individuals to obtain a preliminary determination as to whether they would be disqualified from obtaining a license due to a prior conviction, a determination that is binding on the agency in connection with a formal application. A fee may be charged to cover the cost of processing. This provision comes straight from the model occupational licensing law proposed by the Institute for Justice, discussed in our post of April 18. Finally, each licensing agency must also publish on its Internet site a document indicating the offenses or kinds of offenses that may result in denial or termination of a license. The provisions of Wisconsin’s Fair Employment Act are further elaborated in the Wisconsin profile from the Restoration of Rights Project.   Read more

Two more states regulate consideration of conviction in occupational licensing

Tennessee and Nebraska are the two most recent states to enact laws regulating how a criminal record will be considered in occupational licensing.  Nebraska’s Occupational Board Reform Act (LB 299) was approved by Governor Pete Ricketts on Appril 23, and Tennessee’s Fresh Start Act (SB 2465) was signed into law by Governor Bill Haslam on the same day. The Nebraska law (which does not take effect until July 2019) is a general deregulation of licensing that includes a provision whereby individuals with a criminal record may obtain a preliminary determination of their eligibility from the relevant licensing board, even before they have obtained the necessary training and qualification.  The board must issue a written determination within 90 days giving its “findings of fact and conclusions of law,” and the fee for this determination may not exceed $100.  The individual may include with the preliminary application “additional information about the individual’s current circumstances, including the time since the offense, completion of the criminal sentence, other evidence of rehabilitation, testimonials, employment history, and employment aspirations.”  The board’s decision may be appealed under the state’s administrative procedure act. Tennessee’s new law (which is effective July 1, 2018) provides for a preliminary determination of eligibility by a licensing board and written reasons for denial. However, unlike the Nebraska law, it also contains a more detailed set of standards and procedures that apply to a board’s consideration whether a conviction is “directly related” to the license, and it also contains a presumption in favor of issuing a license (with certain exceptions). Among other things, the licensing authority “must demonstrate by a preponderance of the evidence that [the applicant’s conviction] is related to the applicable occupation, profession, business, or trade.” Additional bills laws regulating consideration of conviction in licensing are well along in the legislative process in Kansas and Louisiana, and an enrolled bill is awaiting the governor’s signature in Maryland. We have revised the Tennessee and Nebraska profiles and 50-state charts from the Restoration of Rights Project to reflect the new licensing laws.   Read more