Category: New legislation

Automated sealing nears enactment in Pennsylvania

[NOTE:  On June 30, HR 1419 was signed into law as Act 56.  Its provisions have been incorporated into the Pennsylvania profile of the Restoration of Rights Project.]

On Friday June 22, the Pennsylvania legislature took its final step toward passage of the so-called Clean Slate Act of 2018, delivering to Governor Wolf a bill (HR 1419) that he has already indicated he will sign.  When enacted, the Act will be the first state law providing for automated sealing of at least some conviction records, sparing individuals with qualifying records the trouble and expense of filing a formal petition for relief with a court.  Congratulations are due to the Community Legal Services of Philadelphia and the Center for American Progress for their sustained efforts over several years to enact this ground-breaking legislation, which will provide relief for “hundreds of thousands of Pennsylvanians with old and minor criminal convictions or who were arrested but not convicted.”  Their press release, linked here, notes that “[t]he bill enjoyed remarkably broad support, including from legislators and advocacy groups that rarely find common ground.”  

As soon as HR 1419 has been signed into law, we expect to incorporate into the Restoration of Rights Project a full analysis of its relevant provisions, which are fairly complex, and which become effective on different dates.  In the meantime, we note below what appear to be the bill’s most salient features.

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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.

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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.

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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.

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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.   

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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.

 

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.

 

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.

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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.

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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.)

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