Fair Chance Licensing Act (NELP)

Policy summary:

Two trends, decades in the making, are colliding: The first trend, stemming from “tough on crime” policies and mass incarceration, is that more Americans have an arrest or conviction record than ever before. The second trend is the dramatic expansion of occupational licensing, which requires people to obtain permission from a government agency—and, commonly, pass a background check—before they can work.

The result? More than 70 million people with a record in the United States either face significant barriers when seeking a license to work, which is now required for one in four jobs, including many good-paying jobs that are in high demand in healthcare and other industries, or—even worse—they are automatically disqualified, sometimes for life.

The Fair Chance Licensing Act, drafted by the National Employment Law Project (NELP), is inserted below. For a NELP toolkit to help advocate for the legislation, CLICK HERE.

Fair Chance Licensing Act

Section 1. Policy

The Legislature finds and declares that reducing barriers to employment for people with arrest and conviction records, and decreasing unemployment in communities with concentrated numbers of people with records, are matters of statewide concern. The Legislature further finds and declares that increasing employment opportunities for people with records will reduce recidivism and improve economic stability in our communities.

Section 2. Availability and use of criminal record information

The information listed in subsections (1)-(6) shall not be used, distributed, or disseminated by the State, its agents, or political subdivisions in connection with an application for a license or Offenses committed outside the State shall be classified as offenses committed within the State based on the maximum penalty that could have been imposed for such act under the laws of such foreign jurisdiction.

  1. Non-conviction information, including information related to a deferred adjudication, participation in a diversion program, an arrest not followed by a valid conviction, or infraction; [or other state-specific non-criminal offense]
  2. Conviction which has been sealed, dismissed, expunged, or pardoned; [or other state-specific record-clearing terminology]
  3. Juvenile adjudication;
  4. Misdemeanor conviction for which no jail sentence can be imposed; [or other state-specific low-level conviction]
  5. Misdemeanor conviction older than three years, excluding any period of incarceration or custody; and
  6. Felony conviction older than five years, excluding any period of incarceration or custody.

Section 3. No disqualification from licensed occupations

a) No person shall be disqualified from pursuing, practicing, or engaging in any occupation for which a license or certification is required, solely or in part because of a prior conviction, unless the conviction is directly related to the occupation for which the license is sought.

b) The applicant who has been convicted of an offense which directly relates to the occupation for which a license is sought shall not be disqualified from the occupation if the applicant can show sufficient mitigation or rehabilitation and present fitness to perform the duties of the occupation for which the license is sought, as determined per Section (6).

Section 4. Consideration of only directly related conviction history

a) Licensing applications shall not include an inquiry about an applicant’s conviction history.

b) A licensing authority shall not inquire into or consider the conviction history of an applicant for licensing until after an applicant is found to be otherwise qualified for the license.

c) After an applicant is found to be otherwise qualified for the license, a licensing authority may inquire into and consider only the directly related conviction history of an applicant as determined pursuant to Section (5).

Section 5. Determination of directly related convictions

a) A licensing authority shall limit inquiries into an applicant’s conviction history to only those convictions determined to be directly related to the occupation for which the license is sought and shall make this enumerated list available to the public and provide a copy to each licensing A licensing authority shall not inquire into or consider any conviction history beyond the scope of directly related convictions.

b) Within six months after this statute takes effect, each licensing authority shall establish a narrowly tailored list of directly related convictions by considering each of the following:

  1. The public policy of this State, as expressed in this act, to encourage the licensure of people with arrest and conviction records;
  2. Whether the elements of the offense are directly related to the specific duties and responsibilities of that occupation;
  3. Whether the occupation offers the opportunity for the same or a similar offense to occur;
  4. The relationship of the offense to the purposes of regulating the occupation for which the license is sought; and
  5. The length of time since the offense occurred.

Section 6. Sufficient mitigation or rehabilitation and fitness for occupation

An applicant with a directly related conviction shall not be disqualified from the occupation for which a license is sought if the applicant can establish sufficient mitigation or rehabilitation and fitness to perform the duties of the occupation by providing either of the following:

a) Evidence showing that at least one year has elapsed since release from any correctional institution without subsequent conviction of a crime; and evidence showing compliance with all terms and conditions of probation or parole; or

b) Any other evidence of mitigation or rehabilitation and present fitness provided, including, but not limited to:

  1. Circumstances relative to the offense, including mitigating circumstances or social conditions surrounding the commission of the offense;
  2. Age of the person at the time the offense was committed;
  3. The length of time since the offense occurred;
  4. Evidence of work history, particularly any training or work experience related to the occupation in question; or
  5. Letters of reference by persons who have been in contact with the applicant since the applicant’s release from any local, state, or federal correctional institution.

Section 7. Notice of potential disqualification and opportunity to appeal

a) If a licensing authority intends to disqualify an applicant from pursuing, practicing, or engaging in any occupation for which a license is required, solely or in part because of the applicant’s directly related conviction, the licensing authority shall notify the applicant in writing of the following, prior to a final decision:

  1. Identify the directly related conviction item(s) that form the basis for the potential disqualification and the rationale for occupation relatedness;
  2. Provide a copy of the conviction history report, if any, on which the licensing authority relies; and
  3. Provide examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide, which are described in Section (6).

b) After receiving the notice of potential disqualification, the applicant shall have 30 (thirty) business days to respond by challenging the accuracy of the conviction history report and/or submitting evidence of mitigation or r The licensing authority shall make the final decision based on an individualized assessment of the information described in Section (6).

c) If a licensing authority disqualifies the applicant from pursuing, practicing, or engaging in any occupation for which a license is required, solely or in part because of the applicant’s directly related conviction, the licensing authority shall notify the applicant in writing of the following:

  1. The final disqualification, including a list of the directly related conviction item(s) that form the basis for the disqualification and the rationale for occupation relatedness;
  2. The appeal process; and
  3. The earliest date the applicant may reapply for the license or certification, which shall be no longer than two years from the date of the initial application.

Section 8. Compliance

a) For a minimum of three years, licensing authorities shall retain application forms and other documents submitted by applicants, notices provided to applicants as required by Section (7), all other communications received from and provided to applicants, and conviction history reports of applicants.

b) Each licensing authority shall retain the number of applications for each license and the number of applications requiring conviction history In addition, each licensing authority shall retain the following information:

  1. The number of applicants with a record who received notice of potential disqualification;
  2. The number of applicants with a record who provided evidence of mitigation or rehabilitation;
  3. The number of applicants with a record who appealed the final disqualification; and
  4. The final disposition and demographic information of the applicants described in subsections (1)-(3).

c) At least annually, each licensing authority shall make available to the public the information collected pursuant to subsection (b), while ensuring confidentiality of the individual applicants.

Sec. 9. Application

The provisions of these sections shall prevail over any other laws and rules, including but not limited to any specific laws and rules, which purport to govern the granting, denial, renewal, suspension, or revocation of a license. In deciding to grant, deny, revoke, suspend, or renew a license, for a lack of good moral character or the like, the licensing authority may consider evidence of conviction of an offense but only in the same manner and to the same effect as provided for in these sections. Nothing in these sections shall be construed to otherwise affect relevant proceedings involving the granting, denial, renewal, suspension, or revocation of a license.

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