Category: New legislation

Kansas most recent state to revise occupational licensing law

On May 10, Governor Brownback of Kansas signed into law the most recent entrant in the occupational licensing reform sweepstakes, making his state the seventh in the past six weeks to enact substantial progressive legislation.  The new law borrows a number of features from the Institute of Justice’s model occupational licensing law, including prohibiting consideration of non-conviction records, and convictions not “directly related to protecting the general welfare,” and affording aspiring applicants an opportunity for a  preliminary assessment of their eligibility and an “informal, written advisory opinion.”  It adds a feature from the recently enacted Indiana licensing law that bars consideration of most convictions after five years.  The new law also addresses health care licensure and employment.  Here’s a description of the new law that we just posted in the Restoration of Rights Project. Occupational and professional licensing Kan. Stat. Ann. § 74-120, originally enacted in 1972, provides as follows: Notwithstanding any other provision of law, any person, board, commission or similar body who determines the qualifications of individuals for licensure, certification or registration may consider any felony conviction of the applicant, but such a conviction shall not operate as a bar to licensure, certification or registration. In May 2018 this general licensing statute was amended to add several additional provisions. See HB 2386, available here: http://www.kslegislature.org/li/b2017_18/measures/documents/hb2386_enrolled.pdf. The 2018 amendments require licensing boards to “list the specific civil and criminal records that could disqualify an applicant from receiving a license, certification or registration.” Kan. Stat. Ann. § 74-120(b)(1). Importantly, boards “may only list any disqualifying criminal records or civil court records that are directly related to protecting the general welfare and the duties and responsibilities for such entities.”  Moreover, ”in no case shall non-specific terms, such as moral turpitude or good character, or any arrests that do not result in a conviction be used to disqualify an individual’s application for licensure, certification, or registration.” Id. Licensing boards are prohibited from considering an otherwise disqualifying criminal record or civil court record if five years have passed since the individual satisfied the sentence imposed and the individual has had no other convictions during that time. Kan. Stat. Ann. § 74-120(b)(2). However, boards may consider felony convictions, Class A misdemeanor convictions, and any conviction for which licensure could conflict with federal law, regardless of the time passed since the conviction. Id. The amendments also provide individuals the opportunity to petition a licensing board at any time for a preliminary “informal, written advisory opinion concerning whether the individual’s civil or criminal records will disqualify the individual from obtaining such license, certification or registration.” Kan. Stat. Ann. § 74-120(b)(3). The board must respond to the petition within 120 days of receipt, and may not charge more than $50 for the response; however, the advisory opinion is not binding. Id. There are 13 enumerated exceptions that cast a broad carve-out from the 2018 amendments, including: law enforcement and highway patrol officers, accountants, behavioral scientists, doctors and pharmacists, emergency medical personnel and nurses, realtors, the office of the attorney general, municipalities, and “any profession that has an educational requirement for licensure that requires a degree beyond a bachelor’s degree.” Kan. Stat. Ann. § 74-120(c). Health care licensure and employment In 2018, the legislature amended several laws relating to licensure, employment and background checks of employees of adult care homes, home health agencies, and other centers, hospitals, and facilities offering behavioral and disability services. See HB 2386, available here: http://www.kslegislature.org/li/b2017_18/measures/hb2386/; see also Kan. Stat. Ann. §§ 39-970, 39-2009, 65-5117.  In general, people with certain specified convictions may not be employed by the entities in question for a period of five years after completion of sentence, although this period of disqualification may be waived by the secretary for aging or disability services.     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

More states facilitating licensing for people with a criminal record

Last week we posted a description of a detailed new Indiana law regulating consideration of conviction in occupational and professional licensure throughout the state.  It now appears that this may represent a trend, as eight additional states have either recently enacted or are poised to enact similarly progressive occupational licensing schemes.  New general laws regulating licensure are in place in Arizona, Illinois, and Massachusetts.  Similar bills have been enrolled and are on the governor’s desk for signature in Kansas, Maryland, Nebraska, and Tennessee.  Arizona’s new 2018 licensing law follows on another law passed in that state in 2017 that authorized provisional licenses for individuals with a criminal record.  Massachusett’s new licensing law is part of a more general criminal justice reform bill.   Delaware and Connecticut have also recently loosened restrictions on licensing for cosmetology and related professions. The licensing reforms in these states – and in several other states where licensing bills are less far along toward enactment — seem to have been influenced by a model law proposed by the Institute for Justice, a libertarian public interest law firm.  Key features of the Model Occupational Licensing Review Act as they affect individuals with criminal records are 1) to provide individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; 2) to require licensing agencies to disqualify only if an applicant has been convicted of a felony or violent misdemeanor, and if the agency determines that “the state has an important interest in protecting public safety that is superior to the individual’s right to pursue a lawful occupation”; and 3) to require 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.  Disqualification is justified under this model law only if the conviction is “substantially related to the state’s interest in protecting public safety,” and the individual will be “more likely to reoffend by having the license than by not having the license.” The federal government is also encouraging licensing reform: the U.S. Department of Labor is supporting a three-year project to assist states improve their general policies and practices related to occupational licensing, including those that affect persons with a criminal record. The project brings together 11 states to participate in the Occupational Licensing Learning Consortium. The 11 states are Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin. We are monitoring this legislative trend and will revise the state profiles and other materials in the Restoration of Rights Project as new laws are enacted.   Read more