New 2019 laws reduce workplace barriers for people with a criminal record

This is the second in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief.  The first post in this series described new laws restoring the right to vote.  Our full report on 2019 enactments will be published shortly.

Consideration of criminal record in occupational licensing and employment

In 2019, 26 states and the federal government enacted 41 separate laws limiting consideration of criminal record in either employment or occupational licensing, or both.  For the first time, Congress joined the lively national conversation about the need to reduce record-related barriers in the workplace that are inefficient and unfair.

Regulation of licensing accounted for 30 of these new laws, continuing a trend begun in 2017 that has transformed the licensing policy landscape and opened opportunities in regulated professions for many thousands of people.  As explained in our report on 2018 laws, these licensing reforms are particularly important in supporting reintegration, since studies have shown that more than 25% of all jobs in the United States require a government-issued license.

The new wave of licensing reforms resurrects a progressive approach to occupational opportunity that dates from the 1970s, and it has been strongly influenced by model legislation developed by the Institute of Justice (IJ), a libertarian public interest law firm, and the National Employment Law Project (NELP), a workers’ rights research and advocacy group.  Despite their origin in differing regulatory philosophies, the IJ and NELP model laws reflect a similar approach:  they limit the kinds of records that may result in disqualification, rejecting vague “good moral character” and other criteria irrelevant to competence, insisting that individual denials be grounded in evidence of public safety risk established through rigorous due process procedures, and making agency procedures more transparent and accountable.  In the IJ model, applicants can seek binding preliminary determinations of qualification, and agency compliance is monitored by disclosure and reporting requirements.

The new licensing laws borrow features of the comprehensive schemes enacted in 2018 in states like Indiana and New Hampshire, though in 2019 most states took a more cautious approach to reining in licensing agencies.  Some states (like Mississippi and Nevada) enacted generally applicable laws for the first time, while others returned to the task begun in previous legislative sessions.  Arizona, for example, has enacted significant licensing reforms for three years running, while Texas enacted no fewer than five separate licensing measures in 2019 alone—two of them of general application and quite significant, and the other three opening opportunities in health care occupations to people who may have been denied them earlier in life.  Arkansas, North Carolina and Oklahoma significantly expanded existing licensing schemes.

Compared to occupational licensing, 2019 was not a banner year for new fair employment laws.  Still, nine states and the federal government enacted a total of 13 new measures to promote opportunities in the workplace.  Most of the new laws continue the expansion of “ban-the-box” laws in public and private employment, including a significant new law covering employment by federal agencies and contractors.

The only 2019 enactment that directly prohibits consideration of criminal record in employment is Illinois’ extension of its Human Rights Act to bar employers and housing providers from considering arrests not resulting in conviction and juvenile adjudications.  Since 2019 was also a year that saw doubt cast on the legality of the EEOC’s extension of Title VII of the Civil Rights Act of 1964 to cover employment discrimination based on criminal record, more states may step up in coming years.  As of the end of 2019, only four states (California, Hawaii, New York, and Wisconsin) include criminal record discrimination in their general fair employment schemes, and all but California’s law date from the 1970s.  Colorado, Connecticut, and Nevada have, like Illinois, more recently prohibited some employers from considering certain criminal records, but those prohibitions are not integrated into a broader nondiscrimination law.

The new 2019 licensing and employment laws are described in more detail below, and can be viewed as they interact with other relief provisions in the relevant state profiles from the CCRC Restoration of Rights Project.  Our full report on 2019 laws, to be published shortly, will continue our efforts to show overall patterns and emerging trends in an extraordinarily fruitful period of law reform in the United States.

OCCUPATIONAL LICENSING

In the past year, four states that previously had no general law regulating consideration of criminal records in occupational licensing (Alabama, Mississippi, Nevada, and West Virginia) took steps to limit licensing agencies’ ability to reject individuals based on their record.  Seven states (Arizona, Arkansas, Maryland, North Carolina, Ohio, Oklahoma, and Texas) made significant modifications to existing licensing schemes, and three more states (Delaware, Illinois and Indiana), made minor modifications to extensive schemes enacted in the past several years.  New York lifted mandatory disqualifications from several licensed professions, allowing applicants for the first time to be considered under the state’s general non-discrimination law.  Several states took steps to facilitate licensure in barbering and various construction trades.  Florida, for example, enacted a five-year limit on consideration of conviction in licensing those trades, as well as any other trade taught in its prisons.

Many of the new laws contain provisions that were familiar in 2018 reforms:

  • Preliminary determination: Providing for a preliminary determination of qualification, for a small fee with quick turnaround and written reasons;
  • Relevant standards: Deleting vague standards like “good moral character” in favor of standards likely to evidence low risk and rehabilitation;
  • Prohibited considerations: Barring consideration of certain types of records and other types after a specified time;
  • Transparency: Requiring agencies to publish a list of disqualifying convictions and to provide written reasons for rejection in individual cases; and
  • Accountability: Including reporting requirements intended to monitor agency compliance.

Significant new licensing laws:

Alabama, until 2019, had no general law regulating consideration of conviction in occupational licensure.  Effective September 1, 2019, SB163 created a process modeled on the Uniform Collateral Consequences of Conviction Act, whereby a person who would otherwise be disqualified by law from obtaining a particular occupational license may obtain from the circuit court an “Order of Limited Relief” to dispense with that mandatory penalty and allow their consideration by the licensing board on the merits.  People with federal offenses are eligible, as are people with out-of-state convictions who have received a similar certificate in the jurisdiction of conviction.  A person may not be serving a prison sentence with more than six months left to serve, nor can they have pending charges.   There is a filing fee of $100 that may not be waived, and a rather onerous process of document production – but no standards are specified, and the court’s order is appealable.

Arizona made significant modifications to its licensing laws for the third year in a row (HB 2660), further modifying the standards set forth in § 41-1093.04(D) to require an agency to conclude before denying a license both that (1) there is an important state interest in “protecting public safety that is superior to the person’s right” to licensure; and (2) the person was convicted within the past seven years of a felony that has not been set-aside, including any offense the agency is specifically required to consider by law, but excluding certain serious and dangerous crimes.  Arizona’s set-aside law is described here.  Under the 2018 law, agencies are required beginning in 2019 to submit annual reports to the governor and the legislature that contain the following information for the previous year: the number of petitions received from persons with a criminal record for a preliminary determination; the number of petitions granted and denied, and the types of offenses involved in each category.  § 41-1093.04(I).

Arkansas enacted the first revision of the state’s licensing laws in 10 years, prohibiting consideration of most felony convictions after 5 crime-free years, as well as sealed convictions, pardoned convictions, and non-conviction records (SB 451).  The new law amends the Criminal Offender Rehabilitation Act of 2010 by establishing standards for waiving disqualification (though certain serious violent crimes remain grounds for permanent disqualification), and by eliminating “good character” and “moral turpitude” as licensing criteria.  Licensing agencies must “state explicitly in writing the reasons for a decision which prohibits the applicant from practicing the trade, occupation, or profession if the decision is based in whole or in part on conviction of a felony.”  Among the legislature’s findings were that “Arkansas is taking a leading role in the nationwide pursuit of reforms to the system of occupational licensing,” and that the state was one of 11 states “chosen to participate in the Occupational Licensing Policy Learning Consortium, an initiative funded by a grant from the United States Department of Labor and supported in partnership with the National Conference of State Legislatures, the Council of State Governments, and the National Governors Association.”

Florida added a new provision to its general licensing law to prohibit consideration of a conviction more than five years old in licensing of barbers and cosmetologists, plumbers, electricians, mechanical engineers, roofers, a number of other building trades, and “any other profession for which the department issues a license, provided the profession is offered to inmates in any correctional institution or correctional facility as vocational training or through an industry certification program” (H7125).  See § 455.213(3)(a)(2019) (“A conviction, or any other adjudication, for a crime more than 5 years before the date the application is received by the applicable board may not be grounds for denial of a [specified] license.”).  Boards are permitted to consider violent and sexual offenses but only if they “relate to the practice of the profession.”  Persons are permitted to apply for a license prior to their release from confinement or supervision.  Starting on October 1, 2019, and updated quarterly thereafter, each relevant licensing board must compile a list indicating each crime used as a basis for a license denial.  For each crime listed, the board must identify the crime reported and for each license application the date of conviction or sentencing date, whichever is later; and the date adjudication was entered.

Maryland prohibited occupational licensing boards from denying an application based solely on a non-violent conviction if 7 years or more has passed since completion of sentence without other charges, even if the agency determines that the conviction is directly related to the occupation and even if “issuance of the license or certificate would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public,” unless the person is required to register as a sex offender (HB22).  Md. Crim. Proc. Code §1-209(f)(1) and (2).   Drug convictions are specifically subject to a similar statutory policy and standards, although there is no exception for crimes involving violence.  See Md. State Gov’t Code § 10-1405(b).  In 2018, licensing agencies were required to report each year to the governor and the general assembly on applications for licenses that would be eligible for relief under § 1-209, including the number granted and the number denied.

Mississippi, until 2019, had no general law regulating consideration of conviction in connection with occupational licensing.  Under the Fresh Start Act of 2019,  effective July 1, 2019, no one may be disqualified from engaging in any licensed occupation “solely or in part because of a prior conviction of a crime, unless the crime for which an applicant was convicted directly relates to the duties and responsibilities for the licensed occupation” (SB2781) (not yet codified).  Only law licensure is excepted.  Under Section 4, licensing authorities shall not include in their rulemaking “vague or generic terms including, but not limited to, ‘moral turpitude,’ ‘any felony,’ and ‘good character.’”  In determining whether a conviction is “directly related,” the licensing authority shall make its determination by a clear and convincing standard of proof based on such factors as the seriousness of the crime, the passage of time, and evidence of rehabilitation.

The law provides for a preliminary determination of whether the individual’s criminal record will disqualify them from obtaining a license, for which no more than $25 may be charged.  If a license is denied in whole or in part because of conviction, the licensing authority shall notify the individual in writing of the reasons and their right to a hearing.  If an applicant’s criminal history does not require a denial of a license under applicable state law, “any written determination by the licensing authority that an applicant’s criminal conviction is directly related to the duties and responsibilities for the licensed occupation must be documented in written findings for each of the [applicable factors] “by clear and convincing evidence sufficient for a reviewing court.”  In any administrative hearing or civil litigation, “the licensing authority shall carry the burden of proof on the question of whether the applicant’s criminal conviction directly relates to the occupation for which the license is sought.”

Nevada, until 2019, had no generally applicable law regulating consideration of conviction in occupational licensure.  New sections of Chapter 622 of the Nevada Revised Statutes will require licensing agencies to develop and implement a process by which a person with a criminal history may petition for a preliminary determination whether that history will disqualify them from obtaining a license from the regulatory body (HB 319). The agency must respond within 90 days, and may not charge more than $50.   If the agency proposes disqualification, it “may” advise the person what can be done to qualify.  The agency also “may” post on its website a list of crimes that would result in a disqualification determination.  HB 319 also amended Nev. Rev. Stat. § 622.001 to require each licensing agency to submit quarterly reports to the legislature the number of petitions received from people with a criminal record, the number of determinations of disqualification, and the reasons for each.  Under a new section of Chapter 232B, the “Sunset Subcommittee” of the Legislative Commission is charged with reviewing the reports of each agency “to determine whether the restrictions on the criminal history of an applicant for an occupational or professional license are appropriate.”  Similar requirements are specifically imposed on various certifying entities of state government and the courts through additions to various chapters of the Nevada statutes, for certifications as varied as court interpreter, firefighter, boiler inspector, driller, milk tester, and medical marijuana provider.

North Carolina’s general licensing non-discrimination law, enacted in 2013, prohibited occupational licensing boards from automatically disqualifying an individual based on a criminal record unless the board is otherwise authorized by law to do so.  This law was substantially amended in 2019 to enhance both substantive and procedural protections for people with a record, and to extend its provisions to “state agency licensing boards” as well as “occupational licensing boards” (HB770).  HB770 amends N.C. Gen. Stat. § 93B-8.1 to impose a “direct relationship standard” for all licenses; to require a board to consider certain factors that before were discretionary, giving effect for the first time to a drug treatment program and Certificate of Relief (see above); and to exempt only licenses governed by federal law.  § 93B-8.1(b)-(b3).  It provides for robust procedural protections for applicants, including written reasons in the event of a denial and an appeal procedure.  § 93B-1(b4)-(b5).  It also specifies that individuals may at any time apply for a “predetermination” as to whether their record is “likely” to be disqualifying, a determination that is “binding” on the board in the event of a subsequent application.  § 93B-8.1(b6) though (b7).   Finally, it amends § 93B-2(a) to require each board to report annually to the legislature and to the State Attorney General on how many applications it has received from people with a record, and how many were granted and denied.

Ohio‘s legislature, on December 27, 2018, enrolled SB 225, which became law 10 days later without action by the governor.  Ohio licensing boards have been required since 2009 to promulgate regulations on crimes that would be disqualifying under a general “substantial relationship” standard, and the new law requires these crimes to be listed on the agency’s website.   Ohio Rev. Code Ann. § 9.78(C)(2019).  In addition, anyone with a conviction may request at any time that a licensing authority make a preliminary determination whether their conviction will be disqualifying.  § 9.78(B).  A fee of no more than $25 may be charged.  Within thirty days of receiving a request, the licensing authority must inform the person of its decision.  The decision is not binding if the licensing authority determines that the person’s convictions differ from what was included in the request.  Id.   Finally, SB 225 enacts an elaborate legislative sunset review procedure that will presumably include consideration of how licensing agencies treat individuals with a criminal record under the applicable “least restrictive alternative” standard.

Oklahoma enacted a comprehensive revision of its occupational licensing laws, with certain generally applicable provisions contained in a new Section 4000.1 of Title 59, and conforming provisions added into specific licensing schemes (HB1373).  Section 4000.1(b) provides that a person with a criminal history record may request an initial determination from the licensing agency of whether his or her criminal history record would potentially disqualify him or her from obtaining the desired license, including before obtaining any required education or training for such occupation.  Section 4000.1(C) requires each state entity with oversight authority over a particular licensed occupation or profession must “list with specificity any criminal offense that is a disqualifying offense for such occupation.”  Any disqualifying offense must “substantially relate” to the duties and responsibilities of the occupation and “pose a reasonable threat to public safety.” “Substantially relate” is defined to mean 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.”  “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.”  Each entity must respond within 60 days and may charge no more than $95.  In addition, the specific regulatory schemes of dozens of professions and occupations were amended by HB1373 to strike references to “good moral character” and “moral turpitude,” and to include the two requirements of disqualification (“substantial relationship” and “reasonable threat”) in the conjunctive.

Texas enacted five separate laws affecting the occupational licensing process for people with a criminal record.  The most comprehensive of the new laws deleted a provision in existing law that allowed disqualification based on a conviction unrelated to the occupation within five years of application, and otherwise made major modifications to the standards and procedures for obtaining a license in most occupations (other than the medical field) (, HB 1342).  The law creates a new “restricted license” aimed at facilitating licensure in air-conditioning and electrical work for people returning to the community from prison.  HB1342 also tightens procedures and standards applied by licensing agencies, and requires an agency to explain its reasons for denial in writing.   Certain violent and sexual crimes, and drug felonies are excepted from the requirements of the law.  A second law, prohibits licensing agencies affected by HB 1342 from considering arrests not resulting in conviction or placement on deferred adjudication community supervision (SB 1217).  A third law modifies standards that apply to certain specific licenses, primarily by deleting overbroad categories of disqualification or antiquated references to moral integrity (podiatrist, midwife, electrician, animal breeder, auctioneer) (HB1531).  Two narrower laws loosened restrictions on licenses for health care providers and massage therapists (HB 1865; HB 1899).

Utah authorized preliminary determinations as to whether a criminal record would disqualify individuals from obtaining a license in an occupation or profession regulated by Title 58 of the Utah code (HB 90).  Utah Code Ann. § 58-1-310.  A fee may be charged (although, unlike most similar laws enacted in other states since 2018, no cap is established).  Within 30 days of receipt of a completed application, the Division of Occupational and Professional Licensing must make a written determination, and the decision may include additional steps the individual could take to qualify for a license.  Id.  This new law also amends the definition of “unprofessional conduct” in § 58-1-501(2), based on which a license may be denied or restricted.  Existing law defines “unprofessional conduct” to include, among other things, a plea or conviction for a crime of moral turpitude or a crime that bears a “reasonable relationship” to safe or competent performance of the occupation.  § 58-1-501(2).  The new law replaces “reasonable relationship” with “substantial relationship.”

West Virginia, until 2019, had no general law regulating consideration of conviction in licensure, except a rule that that licensing authorities could not consider expunged convictions. W. Va Code § 5-1-16a(b).  Under a new law, licensing agencies, with a few exceptions (law, medicine, law enforcement, security guards), are subject to an elaborate scheme of regulations for consideration of criminal records (HB118). A new W. Va. Code § 30-1-24 addresses “Use of criminal records as disqualification of authorization to practice,” and provides that boards may not disqualify based on conviction “unless that conviction is for a crime that bears a rational nexus to the occupation requiring licensure.” §30-1-24(a).  In addition, it discourages the use of the term “moral turpitude,” unless the underlying crime satisfies the “rational nexus” standard.  § 30-1-24 (b).  Standards to determine “rational nexus” include seriousness of crime, passage of time and evidence of rehabilitation.  It does not require the board to give reasons for denial, though it does permit a candidate who has been denied, to reapply after 5 years (with violent and sexual crimes subject to a longer period of disqualification).  It also provides for a preliminary determination within 60 days (but no cap on application fee as with other similar laws).   Finally, it reenacts specific licensing schemes that prohibit convictions within the last five years, deleting provisions requiring applicants to have “good moral character.”

Other new licensing laws:

Delaware generally applies a “substantial relationship” standard to occupational licensing ship, and also requires licensing boards to promulgate regulations specifically identifying the crimes that are “substantially related” to the profession or occupation.  In 2019, additional amendments were made to further limit how criminal record may be considered in three licensing schemes:  massage therapy (HB 7), plumbing/HVAC/refrigeration (HB 124) and electricians (SB 43).  These licensing boards may not consider pending charges, or convictions more than 10 years old as “substantially related” if there have been no intervening convictions, excluding sexual offenses.  The bills also reduce the mandated waiting period for consideration of waiver to three years for violent felonies, to two years for other felonies, and they reduce the level of disqualifying parole supervision.

Illinois amended the Department of Professional Regulation Law, to define mitigating factors for the purposes of provisions concerning the licensure, certification, or registration of applicants with criminal convictions, and provide that mitigating factors are not a bar to licensure, but instead provides guidance for the Department when considering licensure, registration, or certification for an applicant with criminal history (HB2670).  See 20 ILCS 2105/2105-131.  The law is an evident effort to regulate the discretion of the DPR, which may have been treating mitigating factors as mandatory and their absence as a basis for denial.  A second law provides that a certificate of good conduct may be granted to relieve an eligible person of any employment, occupational licensing, or housing bar (rather than just an employment bar) (HB3580).  However, a certificate of good conduct does not limit any employer, landlord, judicial proceeding, administrative, licensing, or other body, board, or authority from accessing criminal background information; nor does it hide, alter, or expunge the record.  The existence of a certificate of good conduct does not preclude a landlord or an administrative, licensing, or other body, board, or authority from retaining full discretion to grant or deny the application for housing or licensure.

Indiana made minor changes to the sweeping 2018 overhaul of Indiana’s occupational licensing scheme as it affects individuals with criminal records, including some minor changes for dieticians, dentists, dental hygienists, audiologists, and management appraisal companies (HB1569).

Iowa narrowed barriers to licensing based on conviction for electricians, plumbers, mechanical trades and contractors, and barbers (SF 567).   The new law permits waiver of disqualification based on conviction that is deemed “related to” the occupation.  It limits disqualification to specified sexual and violent offenses, and strikes provisions allowing reprimand, revocation, suspension based on any felony conviction.  For barber licenses, provides that a person who completes a barbering apprenticeship training program while in state custody shall be allowed to take the licensing examination.

Montana passed a joint resolution calling for an interim study of occupational licensing barriers based on criminal conviction (SJ 18).

New Hampshire created two categories of criminal history information to be maintained by the state police records repository, one “confidential” and the other “public” (HB 637).  “Confidential criminal history information” (defined to include non-conviction records and records of convictions that have been annulled) will no longer be included in background checks for employment and licensing purposes.

New York modified a variety of specific licensing schemes that imposed mandatory bars to licensure based on conviction, to make licensing decisions discretionary and specifically subject to the nondiscrimination provisions of Article 23-A (S1505 (2020 Budget), Part II, subpart A).  Among the specific licenses affected are operation of games of chance, banking, education councils, notary public, work activity employer, and driving school.

Oregon loosened standards for employment in care-giving positions, providing that in conducting fitness determinations pursuant to criminal records checks for certain employees in agencies providing direct care to vulnerable populations, state licensing agencies “may not consider” convictions more than 10 years old, non-conviction records (including diversions), marijuana convictions, DUI more than five years old (SB 725).  The new standards do not apply to certain specified serious offenses, or to positions in residential care centers, home health aides, childcare centers or workers, or EMTs.

Vermont authorized a study of licensure to consider unnecessary barriers to licensure (S 162).

EMPLOYMENT

A majority of the fair employment laws enacted in 2019 took the form of limits on inquiry into criminal history at early stages of the employment application process.  The most significant of these laws in terms of scope and likely impact was the extension of so-called “ban-the-box” provisions to federal agency employers and federal contractors as part of the massive year-end Defense Authorization Act of 2020.  When this law takes effect in December 2021 (two years after its enactment), covered employers will be prohibited from inquiring into an applicant’s criminal record until a conditional offer of employment has been made, and the law will also preclude making inquiry of individuals seeking federal contracts. Two states (Maine and North Dakota) for the first time enacted state-wide ban-the-box laws applicable to public employment, while two other states that already covered public employment (Colorado and New Mexico) extended their laws to private employers.  This brings the total of states with any ban-the-box law to 35 plus D.C., and the number of states with ban-the-box laws applicable to private employers to 13.   (The law already covered consideration of sealed or expunged convictions by employers.)

The only law enacted in 2019 that directly prohibits employment discrimination based on criminal record is Illinois’ extension of its Human Rights Act to bar employers and housing providers from considering arrests not resulting in conviction and juvenile adjudications.  In addition, New Hampshire’s law, discussed in the section above on licensing, provides that non-conviction records and records of convictions that have been annulled will no longer be included in background checks for employment and licensing purposes.

Significant new fair employment laws:

Federal employers and contractors were for the first time directly regulated by a fair employment law through the Fair Chance to Compete for Jobs Act of 2019, enacted as part of the National Defense Authorization Act of 2020 (S.1790).  This law, long sought-after by the advocacy community, amends Titles 2, 5 and 28 of the U.S. Code to prohibit employers in all three branches of the federal government, and private-sector federal contractors, from asking about job applicants’ arrest and conviction record until a conditional offer of employment has been extended. The Act’s “ban the box” prohibition on pre-offer inquiries extends to records that have been “sealed or expunged pursuant to law,” and sealed records of juvenile adjudications.  5 U.S.C. §§ 9201(4)(B) and (C), 9206.  Certain types of employment would be excepted, including employment that otherwise requires inquiry into criminal history, and employment in the military, in law enforcement, and in national security.  The Director of OPM is permitted to designate additional exemptions, including positions that involve “interaction with minors, access to sensitive information, or managing financial transactions.”  § 9202(B) and (C).  The law contains provisions for enforcement and sanctions.  In additional to extending ban-the-box requirements to employment on federal contracts, including defense contracts, it would also prohibit agency procurement officials from asking persons seeking federal contracts and grants about their criminal history, until an “apparent award” has been made.  Post-offer, it would appear that non-conviction records could continue to be the subject of inquiry by federal hiring and contracting authorities, as well as any records that have been sealed or expunged – but only if they are otherwise available to criminal justice agencies for background checks.  The Act will become effective two years after enactment, or December 28, 2021.

Colorado extended a ban-the-box requirement to private employers, making Colorado the 13th state to do so (HB 1025).  This law prohibits inquiry into criminal history on an “initial” application form, but a broad exception allows employers to review an applicant’s publicly available criminal history report at any time.  Compare Colorado’s law regulating consideration of criminal records in public employment, which requires that an applicant be a “finalist” or that an applicant receive a “conditional offer of employment” before public employers may perform a background check, § 24-5-101(3)(b).   HB 1025 also lacks language analogous to Colorado’s public employment law that requires employers to exclude non-convictions, arrests, pardons, expunged and sealed records, and orders for collateral relief from consideration when making hiring decisions.  As a result, the law leaves room for private employers to deny employment merely for an arrest or a charge that does not result in a conviction, or for records where a person has obtained judicial or executive relief.  The new law includes enforcement provisions that authorize the Department of Labor and Employment to investigate complaints and impose civil penalties for violations.  The law does not apply to certain positions that federal, state, or local law or regulations forbid employing individuals with a specific criminal history, or where an employer is required by law to conduct a criminal history background check for the position, or if the position is designated to participate in a government program to encourage employment of people with criminal histories.  HB 1025 has an effective date of August 2, 2019, and the law includes a two-year phase-in period for its provisions: (1) beginning on September 1, 2019, the prohibitions on consideration of criminal records will apply to private employers with 11 or more employees; and (2) beginning on September 1, 2021, the provisions will apply to all private employers.

Illinois amended its Human Rights Act to broaden the category of criminal records that may not be used to deny employment, and extended its non-discrimination provisions to “real estate transactions” as well.  As amended, the Act prohibits inquiries into or use of an “arrest record,” defined as “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.”  See SB1780.  Previously the law covered only employment, and only discrimination based on “the fact of an arrest” and expunged or sealed records.    At the same time, this law does not prohibit use of criminal records obtained under federal or state laws requiring a background check, or under authority of the Illinois Criminal Records Act “in evaluating the qualifications and character of a prospective employee.”  

Maine enacted a prohibition on inquiries about an individual’s criminal history on applications for employment for a position in state government, “except when, due to the nature and requirements of the position, a person who has a criminal history may be disqualified from eligibility for the position”  (HP 133).  The provision covers positions in the legislative, executive or judicial branch of State Government or a position with a quasi-independent state entity or public instrumentality of the State, but not “a school administrative unit, municipality, county or other political subdivision of the State.”  Me. Rev. Stat. Ann. tit. 5, §792.

New Mexico added a “ban-the-box” provision applicable to private employment, making New Mexico the 12th state to do so (SB 96).  Under this law, an employer may not make a criminal history inquiry on the application, “but may take into consideration an applicant’s conviction after review of the applicant’s application and upon discussion of employment with the applicant.”  In addition, it expressly permits the employer to notify the public or an applicant that the law or the employer’s policy would disqualify an applicant who has a certain criminal history from employment in specific positions with the employer.  This law is substantially weaker than the provision that applies to public employment, which allows a background check only after an applicant has been selected as a finalist, and prohibits consideration of records of arrest not resulting in conviction, and misdemeanor convictions (unless they involve “moral turpitude”).

North Dakota banned inquiries into or consideration of criminal history by public employers “until the applicant has been selected for an interview by the employer” (HB 1282).  N.D. Cent. Code § 12.1-33 -05.1, et seq. (school districts are excluded).  This does not apply to the department of corrections or to “a public employer that has a statutory duty to conduct a criminal history background check or otherwise take into consideration a potential employee’s criminal history during the hiring process.”

Other new employment laws:

Arkansas relaxed employment requirements for licensed school personnel with a conviction, if the conviction has been sealed, expunged, or pardoned, deleting a requirement that the conviction be more than ten years old (HB 1544).  Ark. Code § 6-17-410(b)(2)(B).

Colorado created a second chance scholarship for youth previously committed to the division of youth services (SB 231).  Colo. Rev. Stat. § 8-2-130.

Illinois authorized “workforce intermediaries” and lawyers providing pro bono services to individuals with disqualifying convictions applying for health care worker positions to initiate background checks and request a waiver (SB 1965).

Louisiana relaxed restrictions on fostering and adoption for people with convictions (HB 112).  La. Rev. Stat. Ann. § 46:51.2(C).

New Hampshire limited inclusion of non-conviction and annulled records in background checks in the employment context.  See entry in licensing section on HB 637, above.

South Carolina enacted a law generally tightening restrictions on employment of registered sex offenders, but also authorizing circuit courts to approve such a person’s employment at any location where a minor is present and the person’s responsibilities or activities would include instruction, supervision, or care of a minor or minors (S 595).  S. C. Code § 63-13-1110.

Texas required the corrections department to provide persons released from prison with documents to help with employment (HB 918).  A second law makes a defendant who is a veteran placed on community supervision for a misdemeanor offense eligible to participate in a veterans reemployment program, and to obtain an order of nondisclosure upon successful completion of the program (HB 714).

More thorough analysis of most of the restoration laws mentioned in this comment is available through our Restoration of Rights Project.

via Collateral Consequences Resource Center https://ift.tt/12x2kEw

February 4, 2020 at 01:31PM