Category: New legislation

Indiana enacts progressive new licensing law

The race is on in 2018 to see which State can enact the most progressive new laws on restoration of rights.  As in the past, Indiana is at the forefront of reform.  On March 21, Governor Eric Holcomb signed into law HB 1245, which appears to be the most progressive and comprehensive scheme for regulation of occupational and professional licensure in the country.  It applies not only to state licensing agencies, but also to units of county and municipal government that issue licenses, and requires that state agencies work with them to eliminate redundant and overlapping rules.  Agencies must report to the legislature respecting their implementation of the new law by November 1, 2018. Effective July 1, 2018, Indiana State licensing boards and commissions are required to “explicitly list” all disqualifying convictions in their licensing requirements, each one of which must “specifically and directly” relate to the duties and responsibilities of the occupation or profession.  See Ind. Code § 25-1-1.1-6(d), (e).  Licensing authorities may not “use nonspecific terms, such as moral turpitude or good character, as a licensing or certification requirement” and may not “consider an arrest that does not result in a conviction.” § 25-1-1.1-6(d).  If an applicant has a disqualifying criminal history, the board, commission, or committee shall consider the following in determining whether to deny a license to the applicant, based on a “clear and convincing showing”: (1) The nature and seriousness of the crime for which the individual was convicted. (2) The passage of time since the commission of the crime. (3) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation. (4) Evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a direct relation to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation.§ 25-1-1.1-6(f). § 25-1-1.1-6(f). The disqualification period for convictions listed by the agency as disqualifying is limited to five years, as long as the applicant has kept a clean record during the disqualification period and the conviction was not a violent crime or criminal sexual act. § 25-1-1.1-6(g).  Note, however, that crimes involving sexual conduct and violence are not exempted from the new law entirely, only from the disqualification period’s 5-year limitation. It is not entirely clear how drug convictions, which are made absolutely disqualifying by older provisions of the law, should be treated under the new law.  However, a reasonable harmonization of the two laws would apply to drug crimes the same criteria for deciding to disqualify in (f) and the 5-year period of disqualification in (g). Under the new authority, persons with a felony or misdemeanor conviction may seek an advisory opinion from the licensing agency as to whether their convictions would be disqualifying.  The agency may charge a fee for this review that does not exceed $25.  § 25-1-1.1-6(h), (j). If a person is denied a license in whole or in part based on their conviction, the agency must make “written findings” for each of the mitigating factors set forth in § 25-1-1.1-6(f), “by clear and convincing evidence sufficient for review by a court.”  § 25-1-1.1-6(i).  Further, “[i]n an administrative hearing or civil action reviewing the denial of a license, a board, commission, or committee has the burden of proof on the question of whether the individual’s criminal history directly relates to the occupation for which the license is sought.”  Id.  Local government licensing:  Essentially identical requirements are extended to professional and occupational licensing by units of county and municipal governments.  Ind. Code § 36-1-26.  Each state licensing agency is required to consult with the small business ombudsman, the office of management and budget, and representatives of units of local government that issue licenses to develop and submit to the legislature by November 1, 2018, a report concerning “proposed policies and parameters” for the licensing of occupations and professions by local units in order to reduce or eliminate redundant licensing by the state and multiple local units.  Ind. Code § 25-1-16-16. Other Indiana restoration authorities: A recent post on Indiana’s comprehensive expungement law is worth a look, to get a fuller picture of how that state is dealing with the problem of criminal records:  Expungement in Indiana – A radical experiment and how it is working so far (December 17, 2017).   Copyright © 2018 State Net   Read more

First crop of restoration laws enacted in 2018

In 2017, state legislatures produced a bumper crop of laws restoring rights and opportunities, with 24 separate states enacting new legal mechanisms to facilitate reentry and reintegration.  Based on pending bills and laws already enacted this year, 2018 promises to be similarly productive.  In March, the governors of Florida, Utah and Washington all signed into law new measures expanding their existing restoration schemes.  Washington enacted a ban-the-box law applicable to both public and private employment, and both Florida and Utah expanded their laws authorizing expungement of non-conviction records.  These new authorities are described in the post that follows, and can be seen in the context of related laws in the state profiles in the Restoration of Rights Project. While none of these first enactments of 2018 is particularly remarkable standing alone, they deserve mention as harbingers of things to come.  More than thirty additional states have restoration bills pending, and half a dozen of these are well along in the enactment process.  We will be tracking restoration bills through the year, and will report periodically in this space – particularly when a significant new law is enacted.  We also hope to produce in 2018 another annual report on Second Chance Laws enacted during the year, as resources permit. Washington – Ban-the-box applicable to public and private employment In March 13, 2018, Governor Inslee signed into law HR 1298, prohibiting public and private employers from inquiring about criminal record until after a determination that the person is otherwise qualified for the position.  The new section of Title 49 (Labor Code) will not apply to employers required or permitted by law to conduct background checks, including financial institutions, to employers of vulnerable populations, or to non-employee volunteers. The new ban-the-box provision supplements existing provisions of Washington law that permit employers and licensing agencies to consider a conviction record only if within the last 10 years and then only the crime “directly relates” to the employment or license sought.  In addition, court-issued Certificates of Restoration of Opportunity (CROP) prohibit employers and licensing agencies from disqualifying individuals based on criminal conviction, and protect against negligent hiring liability. Washington’s laws regulating consideration of conviction in employment and licensing are set forth in the profile from the Restoration of Rights Project. Florida – Acquittals now eligible for immediate expungement  HB 1065, signed into law 3/27/18, expands eligibility for immediate court-ordered “expunction” (destruction) to cases where a person has been acquitted by a judge, or has had a verdict of not guilty rendered by a judge or jury, by-passing the requirement under existing law that such a record must first be sealed for 10 years.  Under existing law, immediate expunction is available only if all charges are dismissed before trial.   Other existing eligibility requirements remain in place:  only those who have had no prior convictions or expungements are eligible, and those charged with violent or sex offenses are ineligible. These changes are effective October 1, 2018. Florida’s scheme for sealing and expungement is set forth in the RRP profile. Utah – Expansion of authority to expunge non-conviction records.  Under Utah law in effect prior to March 19, 2018, a person was able to apply for expungement of arrest or other non-conviction records only if no charges were filed or charges were dismissed with prejudice.   SB 62 as enacted now authorizes courts to expunge records where the entire case is dismissed without prejudice or without condition as long as (1) the prosecutor consents in writing to the issuance of a certificate of eligibility OR (2) at least 180 days have passed since the date of dismissal.   Under the new authority, a court is required to issue an order of expungement if the court finds by clear and convincing evidence that the prosecutor provided written consent and has not filed and does not intend to refile related charges.  A person seeking expungement may reapply for a certificate of eligibility if the court denies the original petition based on the prosecutor’s intent to refile charges and charges are not refiled within 180 days of the date the court denies the original petition.  Requires the prosecutor opposing expungement of a case dismissed without prejudice or without condition to have a good faith basis for the intention to refile the case.  Clarifies that the Department of Public Safety is prohibited from counting pending or previous infractions, traffic offenses, or minor regulatory offenses when determining whether to grant a certificate of eligibility for expungement; that only fines and interest ordered by the court related to the conviction for which expungement is sought must be paid in full before expungement may be ordered; and, that fines or fees arising from pending or previous infractions, traffic offenses, or minor regulatory offenses are not counted when determining expungement eligibility. Utah’s scheme for sealing and expungement is set forth in the RRP profile.   Read more

California enacts sweeping fair employment law

On October 14, California Governor Jerry Brown signed into law AB 1008, the California Fair Chance Act, a bill we covered upon its passage in the legislature last month.  The Act extends a new “ban-the-box” requirement to private as well as public employers, and makes failure to comply an “unlawful employment practice” subject to enforcement under the state’s Fair Employment and Housing Act (FEHA).  The new law also broadens FEHA enforcement to cover an employer’s consideration of certain criminal records in the hiring process.  When the new law takes effect on January 1, 2018, California will become only the fourth state in the Nation to provide the full protections of its fair employment law to individuals with a criminal record. (New York, Wisconsin and Hawaii are the others.) The Fair Chance Act broadens existing California law in a number of important ways. 1.  Presently, covered public employers must delay a criminal background check until they have determines an applicant “meets the minimum employment qualifications for the position.”  The new law moves the bar to the point a conditional offer of employment has been made, and extends it to private employers as well. 2.  Existing California law already prohibits consideration of non-conviction records in connection with applications for employment, including records of convictions that have been dismissed or set-aside.  Under the new law, this prohibition will become administratively enforceable under FEHA.  Background screening companies will be prohibited from reporting the same information insofar as they are acting as agents for a covered employer “while conducting a conviction history background check in connection with any application for employment.” 3.  As to conviction records, the new law provides that an employer may reject an applicant based in whole or in part on conviction information only after making “an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.“  In making that individualized assessment, an employer must consider: (i) the nature and gravity of the offense or conduct; (ii) the time that has passed since the offense or conduct and completion of the sentence; and (iii) the nature of the job held or sought. 4.  Employers that make a preliminary decision to reject an applicant based on a conviction record must provide the applicant written notification of the decision, identify the disqualifying conviction, and include a copy of any criminal history report used by the employer.  Other procedural protections apply thereafter. A detailed analysis of the Fair Chance Act, and its interaction with other state laws relating to consideration of conviction records, is available in the California profile in the Restoration of Rights Project. The law’s enactment was made possible with strong support from the advocacy community, including the National Employment Law Project, the Time for Change Foundation, and Legal Services for Prisoners with Children.  Those groups released a joint press release yesterday highlighting the significance of its ban-the-box provisions. Read more

California poised for major change in fair employment law

The California legislature has approved, and sent to the governor’s desk for signature, a bill that would dramatically expand protections for people with a criminal record under the state’s Fair Employment and Housing Act (FEHA).  Currently FEHA bars only discrimination that has a racially disparate effect.  If signed by the governor as expected, the new law will independently prohibit discrimination based on criminal record by most public and private employers, subject to FEHA’s administrative enforcement scheme. California will become only the fourth state in the country to extend the full protections of its fair employment law to individuals with a criminal record.  (The others are New York, Wisconsin, and Hawaii).  AB 1008 provides that non-conviction records may not be considered at all in any employment decision by a covered employer (one with more than five employees), and makes violation of this an unfair employment practice under FEHA.  Non-conviction records include records of convictions that have been dismissed pursuant to California’s set-aside law, and convictions that have been sealed or expunged. The bill would extend California’s existing ban-the-box law by making it an unfair emplyment practice to inquire into an applicant’s conviction record before the employer has made a conditional offer of employment.  (Existing law prohibits such inquiry only until an applicant is determined to be qualified.) The bill would require an employer who intends to deny employment solely or in part because of the applicant’s conviction history, to make an individualized assessment of whether this has “a direct and adverse relationship with the specific duties of the job.”  In making that individualized assessment, the employer must take into account (i) The nature and gravity of the offense or conduct; (ii) The time that has passed since the offense or conduct and completion of the sentence; and (iii)The nature of the job held or sought. The bill would also require an employer who makes a preliminary decision to deny employment, based on that individualized assessment, to provide the applicant written notification of the decision, and provide a variety of procedural protections thereafter. The bill also appears to restrict what information background screening companies may report insofar as they are acting as agents for a covered employer, prohibiting distribution or dissemination of nonconviction information “while conducting a conviction history background check in connection with any application for employment.”  (Like similar prohibitions on background screeners under Indiana’s expungement scheme, any new restrictions that go beyond the provisions of FCRA, as these do, may raise questions of federal preemption.) The bill exempts any position where an employer is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. We will be reporting further on this very important legislation in the days ahead. Read more

Nevada’s good sealing law gets better

In just over a month, an amendment to Nevada’s adult conviction sealing law will take effect, drastically reducing the waiting periods for all conviction types, and reducing procedural burdens on applicants.  Nevada’s law is already one of the broadest in the country, permitting sealing of all adult conviction records except for those related to particularly serious offenses (including sex offenses and DUI homicides), and treating sealed convictions as if they never occurred for most purposes.  When the new changes go into effect, Nevadans will not only be able to obtain relief much earlier, they will also enjoy a new presumption in favor of sealing if they meet all the statutory eligibility requirements. In the same legislative session, Nevada also enacted a broad law governing nondiscrimination in public employment that includes both standards for decision and an enforcement mechanism. That law, which will take effect early next year, is described in greater detail in the Nevada profile from the Restoration of Rights Project. The waiting period reductions are as follows: Category A felonies, crimes of violence & burglary: From 15 years to 10 years Category B felonies: From 15 years to 5 years Category C & D felonies: From 12 years to 5 years Category E felonies: From 7 years to 2 years Gross misdemeanors: From 5 years to 2 years All other misdemeanors (with some exceptions): From 2 years to 1 year The amendment also alleviates some of the procedural hurdles in the current law. Applicants will no longer need to attach to a petition copies of the records maintained by all criminal justice agencies,and they will also be able to seek sealing of records from multiple courts via a single district court petition.  To further streamline the sealing process, courts will be able to order sealing without a hearing if the prosecuting attorney agrees. The law will still exclude from eligibility petitioners who have been convicted again during the waiting period (minor traffic offenses excluded) or who have pending charges.  And it still provides no guidance about how the court should exercise its discretion in determining the merits of a petition, although the new presumption in favor of sealing should make sealing mandatory as a practical matter in most cases. In the same legislative session, in June 2017, Nevada passed an expansive law limiting the extent to which public employers may consider a criminal conviction in employment decisions.  The law prohibits inquiry into criminal record until an applicant has been deemed otherwise qualified, and then sets forth specific standards for decision. The new law makes failure to comply with established the procedures an unlawful employment practice and authorizes complaints to be filed with the Nevada Equal Rights Commission. Nevada thus becomes only the fifth state to put enforcement teeth into a law addressed specifically to discrimination based on criminal record. More on relief in Nevada is available in the Restoration of Rights Project state profile. Read more