The National Employment Law Project (NELP) released a study in April 2016 that cataloged the thousands of state laws and regulations which restrict or bar people with criminal records from obtaining licenses needed to work in various professions. NELP cited an American Bar Association report that identified “over 12,000 restrictions for individuals with any type of felony and over 6,000 restrictions based on misdemeanors.”
In its study, NELP noted that “because the criminal justice system disproportionately impacts people of color,” such restrictions “perpetuate racial disparities in employment.” In short, after serving their time or completing their terms of community supervision, the estimated one-third of Americans who have some form of criminal record face daunting obstacles due to “extrajudicial penalties” – including licensing limitations.
As “no national data exists as to the number of people denied licenses because of these collateral consequences,” the study compared the impact of those consequences to the barriers a convicted felon faces in getting a “callback” for a job interview. “For example, after submitting a job application, people with [criminal] records are only half as likely to get a callback as those without a record,” the study stated.
In fact, according to NELP, “No research ... supports the persistent misconception that a workplace is less safe if an employee has a past record. Thus, even seemingly rational inquiries frequently operate as overly broad bans against anyone with a record.”
Additionally, the “common use of vague statutory terms, such as a ‘good moral character’ requirement or restriction against offenses of ‘moral turpitude,’ leaves workers without clarity as to whether their past conviction is a disqualification” – which NELP called an “opaque process.”
The study graded the District of Columbia and 39 states that “restrict most licensing boards’ consideration of arrest and conviction records” in some manner. NELP asked four questions to determine whether a restrictive licensing law reaches a basic level of fairness and utility: “(1) Does the law prohibit the blanket rejection of applicants with conviction histories? (2) Does the law incorporate ‘EEOC factors’ which include consideration of whether a conviction is occupation-related and how much time has passed since the conviction? (3) Does the law limit the scope of record inquiry or the consideration of certain types of record information? and (4) Does the law require consideration of rehabilitation?”
Of the fifty states and the District of Columbia, Minnesota was rated “most effective,” and only Connecticut, Hawaii, Maine, New Hampshire and New Jersey were rated “satisfactory” with respect to criminal record-based licensing restrictions. Eleven states did not have overarching statutes related to licensing restrictions.
The NELP study included ten recommendations for “a comprehensive overhaul of licensing laws to incorporate standards that promote greater transparency and accountability – ultimately producing fairer, more consistently applied licensing laws.” For example, the study suggested the creation of “a broadly applicable state licensing law” that incorporates its recommendations and “supersedes individual state licensing laws containing criminal record restrictions.”
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