State Occupational Licensing Reforms for Workers with Criminal Records

Today, one out of every four Americans needs a license to work while 1 in 3 Americans has a criminal record. Since 2015, 17 states have reformed their occupational licensing laws to make it easier for ex-offenders to find work in state-licensed fields:

  1. Arizona
  2. California
  3. Connecticut 
  4. Delaware
  5. Georgia
  6. Illinois (enacted several reforms in 2016 and 2017)
  7. Indiana
  8. Kansas
  9. Kentucky
  10. Massachusetts
  11. Maryland
  12. Nebraska
  13. New Hampshire
  14. Oklahoma
  15. Tennessee
  16. Wisconsin
  17. Wyoming

Among these reforms, seven 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. Indiana
  3. Kansas
  4. Nebraska
  5. New Hampshite
  6. Tennessee
  7. Wisconsin

Four states generally prevent licensing boards from using vague, moral character standards to deny licenses for ex-offenders:

  1. Illinois
  2. Indiana
  3. Kansas
  4. Wyoming

Five states have instituted new reporting requirements:

  1. Arizona
  2. California
  3. Illinois
  4. Maryland
  5. New Hampshire

Since 2015, 10 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:

Arizona

“Notwithstanding any other law or rule, the agency may determine that the person’s criminal record disqualifies the person from obtaining a license, permit, certificate or other state recognition only if both of the following apply:

  1. The person was convicted of any of the following and the conviction has not been set aside or expunged:

(a) a felony offense.

(b) a violent crime as defined in section 13-901.03.

(c) an offense included in title 13, chapter 20, 21 or 23 or section 13-2310 or 13-2311 if the license, permit, certificate or other state recognition is for an occupation in which the applicant would owe a fiduciary duty to a client.

(d) any offense that a law specifically requires the agency to consider when issuing a license, permit, certificate or other state recognition.

  1. The agency concludes that the state has an important interest in protecting public safety that is superior to the person’s right. The agency may make this conclusion only if the agency determines, by clear and convincing evidence at the time of the petition, that both of the following apply:

(a) the specific offense that the person was convicted of is substantially related to the state’s interest.

(b) the person, based on the nature of the specific offense that the person was convicted of and the person’s current circumstances, is more likely to reoffend by virtue of having the license, permit, certificate or other state recognition than if the person did not have the license, permit, certificate or other state recognition.”

California

“The board may deny a license pursuant to this subdivision only if the crime or act is substantially related to the qualifications, functions, or duties of the business or profession for which application is made.”

[…]

“(b) Criteria for determining whether a crime is substantially related to the qualifications, functions, or duties of the business or profession a board regulates shall include all of the following:

(1) The nature and gravity of the offense.

(2) The number of years elapsed since the date of the offense.

(3) The nature and duties of the profession in which the applicant seeks licensure or in which the licensee is licensed.

(c) A board shall not deny a license based in whole or in part on a conviction without considering evidence of rehabilitation submitted by an applicant.”

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.”

New Hampshire

Notwithstanding any other statute or rule, the board or commission may find the individual’s criminal record disqualifies the individual from obtaining state recognition only if:

(a)  The individual’s criminal record includes a conviction for a felony or violent misdemeanor; and

(b)  The board or commission concludes the state has an important interest in protecting public safety that is superior to the individual’s right.  The board or commission may make this conclusion only if it determines, by clear and convincing evidence at the time of the petition, that:

(1)  The specific offense for which the individual was convicted is substantially related to the state’s interest;

(2)  The individual, based on the nature of the specific offense for which the individual was convicted and the individual’s current circumstances in paragraph IV, is more likely to re-offend by virtue of having the license than if the individual did not have the license; and

(3)  A re-offense will cause greater harm than it would if the individual did not have the license.”

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.”

Wisconsin

“(a) It is employment discrimination because of arrest record for a licensing agency to refuse to license any individual under sub. (2) (b) or to suspend an individual from licensing under sub. (2) (b) solely because the individual is subject to a pending criminal charge, unless the circumstances of the charge substantially relate to the circumstances of the particular licensed activity and the charge is for any of the following:

  1. An exempt offense.
  2. A violent crime against a child.

(b) It is employment discrimination because of conviction record for a licensing agency to refuse to license any individual under sub. (3) (a) 1. or to bar or terminate an individual from licensing under sub. (3) (a) 1. because the individual was adjudicated delinquent under ch. 938 for an offense other than an exempt offense.

(c) 1. If a licensing agency refuses to license an individual under sub. (3) (a) 1. or bars or terminates an individual from licensing under sub. (3) (a) 1., the licensing agency shall, subject to subd. 2., do all of the following:

  1. State in writing its reasons for doing so, including a statement of how the circumstances of the offense relate to the particular licensed activity.
  2. Allow the individual to show evidence of rehabilitation and fitness to engage in the licensed activity under par. (d). If the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity under par. (d), 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 the documentary evidence that may be provided under subd. 1. to show sufficient rehabilitation and fitness to perform the licensed activity under par. (c) 1. b., the licensing agency shall consider any of the following evidence presented by the individual:

  1. Evidence of the nature and seriousness of any offense of which he or she was convicted.
  2. Evidence of all circumstances relative to the offense, including mitigating circumstances or social conditions surrounding the commission of the offense.
  3. The age of the individual at the time the offense was committed.
  4. The length of time that has elapsed since the offense was committed.
  5. Letters of reference by persons who have been in contact with the individual since the applicant’s release from any local, state, or federal correctional institution.
  6. All other relevant evidence of rehabilitation and present fitness presented.”

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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