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State Occupational Licensing Reforms for Workers with Criminal Records

Today, one out of every five Americans needs a license to work while 1 in 3 American adults has a criminal record. Since 2015, 28 states have reformed their occupational licensing laws to make it easier for ex-offenders to find work in state-licensed fields:

  1. Arizona (enacted reforms in 2018 and 2019)
  2. Arkansas
  3. California (enacted two reforms in 2018)
  4. Connecticut 
  5. Delaware
  6. Florida
  7. Georgia
  8. Illinois (enacted several reforms in 2016 and 2017)
  9. Indiana
  10. Iowa 
  11. Kansas
  12. Kentucky
  13. Louisiana 
  14. Massachusetts
  15. Maryland (enacted reforms in 2018 and 2019)
  16. Mississippi
  17. Nebraska
  18. New Hampshire
  19. New York 
  20. North Carolina
  21. Ohio
  22. Oklahoma (enacted reforms in 2015 and 2019)
  23. Tennessee (enacted reforms in 2016 and 2018)
  24. Texas (enacted several reforms in 2019)
  25. Utah
  26. West Virginia 
  27. Wisconsin
  28. Wyoming

Among those reforms, 16 states allow ex-offenders to petition a licensing board at any time, including before enrolling in any required training, to determine if their record would be disqualifying:

  1. Arizona
  2. Arkansas
  3. Florida
  4. Indiana
  5. Kansas
  6. Kentucky
  7. Mississippi 
  8. Nebraska
  9. New Hampshire
  10. North Carolina
  11. Ohio
  12. Oklahoma
  13. Tennessee
  14. Utah
  15. West Virginia 
  16. Wisconsin

Since 2015, 10 states generally prevent licensing boards from using vague standards like “good moral character” or “moral turpitude” to deny licenses for ex-offenders:

  1. Arkansas
  2. Illinois
  3. Indiana
  4. Kansas
  5. Kentucky
  6. Mississippi 
  7. North Carolina
  8. Oklahoma
  9. West Virginia
  10. Wyoming

Seven states have instituted new reporting requirements:

  1. Arizona
  2. California
  3. Florida
  4. Illinois
  5. Maryland
  6. New Hampshire
  7. North Carolina

Since 2015, 11 states generally bar licensing boards from denying ex-offenders a license to work, unless the board determines that the applicant’s criminal record is directly related to the license sought:

Georgia

“(1)…no professional licensing board shall refuse to grant a license to an applicant therefor or shall revoke the license of a person licensed by that board due solely or in part to a conviction of any felony or due to any arrest, charge, and sentence for the commission of any felony unless such felony directly relates to the occupation for which the license is sought or held.

(2) In determining if a felony directly relates to the occupation for which the license is sought or held, the professional licensing board shall consider:

(A) The nature and seriousness of the felony and the relationship of the felony to the occupation for which the license is sought or held;

(B) The age of the person at the time the felony was committed;

(C) The length of time elapsed since the felony was committed;

(D) All circumstances relative to the felony, including, but not limited to, mitigating circumstances or social conditions surrounding the commission of the felony; and

(E) Evidence of rehabilitation and present fitness to perform the duties of the occupation for which the license is sought or held.”

Illinois

“(a) Except as provided in Section 2105-165 of this Act regarding licensing restrictions based on enumerated offenses for health care workers as defined in the Health Care Worker Self-Referral Act and except as provided in any licensing Act administered by the Department in which convictions of certain enumerated offenses are a bar to licensure, the Department, upon a finding that an applicant for a license, certificate, or registration was previously convicted of a felony or misdemeanor that may be grounds for refusing to issue a license or certificate or granting registration, shall consider any mitigating factors and evidence of rehabilitation contained in the applicant’s record, including any of the following, to determine whether a prior conviction will impair the ability of the applicant to engage in the practice for which a license, certificate, or registration is sought:

(1) the lack of direct relation of the offense for which the applicant was previously convicted to the duties, functions, and responsibilities of the position for which a license is sought;

(2) unless otherwise specified, whether 5 years since a felony conviction or 3 years since release from confinement for the conviction, whichever is later, have passed without a subsequent conviction;

(3) if the applicant was previously licensed or employed in this State or other states or jurisdictions, the lack of prior misconduct arising from or related to the licensed position or position of employment;

(4) the age of the person at the time of the criminal offense;

(4.5) if, due to the applicant’s criminal conviction history, the applicant would be explicitly prohibited by federal rules or regulations from working in the position for which a license is sought;

(5) successful completion of sentence and, for applicants serving a term of parole or probation, a progress report provided by the applicant’s probation or parole officer that documents the applicant’s compliance with conditions of supervision;

(6) evidence of the applicant’s present fitness and professional character;

(7) evidence of rehabilitation or rehabilitative effort during or after incarceration, or during or after a term of supervision, including, but not limited to, a certificate of good conduct under Section 5-5.5-25 of the Unified Code of Corrections or certificate of relief from disabilities under Section 5-5.5-10 of the Unified Code of Corrections; and

(8) any other mitigating factors that contribute to the person’s potential and current ability to perform the job duties.”

Indiana

“(e) A board’s, commission’s, or committee’s use of an individual’s conviction of a crime as a disqualifying criminal conviction is limited to a crime that is specifically and directly related to the duties and responsibilities of the occupation or profession for which the individual is applying for or holds a license or certification.

(f) 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.

(g) If an individual has a disqualifying criminal conviction, the period of disqualification may not exceed five (5) years after the date of the conviction, unless the individual:

(1) was convicted of a crime of violence (as defined by IC 35-50-1-2(a));

(2) was convicted of an offense relating to a criminal sexual act (as defined by IC 35-31.5-2-216); or

(3) is convicted of a second or subsequent crime during the disqualification period.”

Kansas

“Such person, board, commission or similar body 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 and 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.”

[…]

“All persons, boards, commissions or similar licensing bodies shall adopt and publicly maintain all necessary rules and regulations for the implementation of this section…[but] shall not apply to the:

  1. Kansas commission on peace officers’ standards and training;
  2. Kansas highway patrol;
  3. board of accountancy;
  4. behavioral sciences regulatory board;
  5. state board of healing arts;
  6. state board of pharmacy;
  7. emergency medical services board;
  8. board of nursing;
  9. Kansas real estate commission;
  10. office of the attorney general;
  11. department of insurance;
  12. any municipality as defined in K.S.A. 75-6102, and amendments thereto; and
  13. any profession that has an educational requirement for licensure that requires a degree beyond a bachelor’s degree.”

Kentucky

“(1) In determining if a conviction directly relates to the position of public employment sought or the occupation for which the license is sought, the hiring or licensing authority shall consider:

(a) The nature and seriousness of the crime for which the individual was convicted and the passage of time since its commission;

(b) The relationship of the crime to the purposes of regulating the position of public employment sought or the occupation for which the license is sought;

(c) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of employment or occupation.”

Mississippi

“(1) Absent applicable state law, licensing authorities shall not have in any rulemaking for their qualifications for licensure vague or generic terms including, but not limited to, “moral turpitude, “any felony, and “good character. Absent applicable state law, licensing authorities may only consider criminal records that are specific and directly related to the duties and responsibilities for the licensed occupation when evaluating applicants.

(2) The licensing authority shall use the clear and convincing standard of proof in examining the factors to determine whether an applicant with a disqualifying criminal conviction will be denied a license. Absent applicable state law, the licensing authority shall make its determination based on the following
factors:

(a) The nature and seriousness of the crime for which the individual was convicted;
(b) The passage of time since the commission of the crime;
(c) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation; and
(d) Any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against a direct relation.

[…]

“(6) The provisions of this section shall not apply to the admission or reinstatement of any person to The Mississippi Bar as an attorney in good standing authorized to practice law.

North Carolina 

“(b) Unless federal law governing a particular board provides otherwise, a board may deny an applicant on the basis of a conviction of a crime only if the board finds that the applicant’s criminal conviction history is directly related to the duties and responsibilities for the licensed occupation or the conviction is for a crime that is violent or sexual in nature. Notwithstanding any other provision of law, a board
shall not automatically deny licensure on the basis of an applicant’s criminal history, and no board may deny an applicant a license based on a determination that a conviction is for a crime of moral turpitude. The board shall make its determination based on the factors specified in subsection (b1).

(b1) Before a board may deny an applicant a license due to a criminal conviction under subsection (b) of this section, the board must specifically consider all of the following factors:

(1) The level and seriousness of the crime.
(2) The date of the crime.
(3) The age of the person at the time of the crime.
(4) The circumstances surrounding the commission of the crime, if known.
(5) The nexus between the criminal conduct and the prospective duties of the
applicant as a licensee.
(6) The prison, jail, probation, parole, rehabilitation, and employment records of the applicant since the date the crime was committed.
(6a) The completion of, or active participation in, rehabilitative drug or alcohol treatment.”

Oklahoma

“A. 1. ‘Substantially relate’ means the nature of the criminal conduct for which the person was convicted has a direct bearing on the fitness or ability to perform one or more of the duties or responsibilities necessarily related to the occupation; and

2.‘Pose a reasonable threat’ means the nature of the criminal conduct for which the person was convicted involved an act or threat of harm against another and has a bearing on the fitness or ability to serve the public or work with others in the occupation.”

[…]

C.  “Each state entity charged with oversight of an occupational license or certification shall list with specificity any criminal
offense that is a disqualifying offense for such occupation. Any disqualifying offense shall substantially relate to the duties and
responsibilities of the occupation and pose a reasonable threat to public safety as defined in subsection A of this section.”

Tennessee

“Subject to the exemptions in this section and unless prohibited by federal law, a licensing authority shall not deny an application for a license, certificate, or registration, or refuse to renew a license, certificate, or registration, solely or in part due to a prior criminal conviction that does not directly relate to the applicable occupation, profession, business, or trade.”

[…]

“(A) In considering whether to deny an application for a license, certificate, or registration to an applicant, or whether to refuse to renew a license, certificate, or registration, on the basis of a criminal conviction, the licensing authority must consider:

(i) The nature and seriousness of the crime for which the individual was convicted;

(ii) The length of time since the commission of the crime;

(iii) The relationship between the nature of the crime and the purposes of regulating the occupation, profession, business, or trade for which the license, certificate, or registration is sought;

(iv) The relationship between the crime and the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the occupation, profession, business, or trade;

(v) Any evidence of rehabilitation or treatment undertaken by the individual that might mitigate against the relationship of crime to the occupation, profession, business, or trade; and

(vi) Any applicable federal laws regarding an individual’s participation in the occupation, profession, business, or trade.

(B) If an applicant, licensee, certificate holder, or registrant’s prior conviction was for a Class A felony, Class B felony, Class C felony not defined under title 39, chapter 17, part 4, or if the felony conviction is for an offense for which the offender is required to register under the Tennessee Animal Abuser Registration Act, compiled in title 40, chapter 012233 39, part 1; the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, compiled in title 40, chapter 39, part 2; or title 40, chapter 39, part 3, there shall be a rebuttable presumption that the conviction relates to the fitness of the applicant, licensee, certificate holder, or registrant engaged in the applicable occupation, profession, business, or trade.”

West Virginia

“(1) Boards subject to the requirements of this section may not disqualify an applicant from initial licensure to engage in a profession or occupation because of a prior criminal conviction that remains unreversed unless that conviction is for a crime that bears a rational nexus to the profession or occupation requiring licensure. In determining whether a criminal conviction bears a rational nexus to a profession or occupation, the board shall consider at a minimum:

(A) The nature and seriousness of the crime for which the individual was convicted;
(B) The passage of time since the commission of the crime;
(C) The relationship of the crime to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the profession or occupation; and
(D) Any evidence of rehabilitation or treatment undertaken by the individual.”

Wyoming

“(ii) It is public policy to consider whether the elements of an offense are directly related to the specific duties and responsibilities of that profession or occupation;

(iii) It is public policy to consider whether the profession or occupation offers the opportunity for the same or a similar offense to occur;

(iv) It is public policy to consider the relationship of the offense to the purposes of regulating the profession or occupation; and

(v) It is public policy to consider whether there is ample opportunity for a person denied a license due to a prior criminal conviction to appeal the denial.”

[…]

“No board, commission, commissioner or authority authorized to regulate through licensure, certification or registration a profession or occupation under this title, or under W.S. 7‑4‑211, 11‑25‑105, 15‑5‑103, 17‑4‑406, 21‑2‑802,23‑2‑414, 26‑4‑101 or 40‑22‑109, shall consider evidence of any conviction more than twenty (20) years old, or for a lesser period of time if expressly provided by statute, when analyzing a person’s criminal history pursuant to the board’s, commission’s, commissioner’s or authority’s regulatory duties, except when:

(i) The sentence, including all incarceration, parole and probation, for the conviction is incomplete or has been completed within fewer than the last ten (10) years; or

(ii) The conviction is related to the duties and responsibilities of the profession or occupation or as otherwise permitted by licensure, certification or registration statutes.”

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