An estimated one in three Americans has a criminal record. But given that roughly 95 percent of arrests are for nonviolent, nonsexual offenses, most ex-offenders pose little to no risk to public safety and should face minimal barriers when seeking work.
However, employers are still wary of hiring people with any rap sheet — which is why policymakers have significantly reformed how U.S. employers can consider applicants with criminal records. Recent guidelines released by the Equal Employment Opportunity Commission (EEOC) strictly regulate how employers handle criminal background checks so that ex-offenders do not face discrimination. But by focusing only on the private sector, policymakers have failed to address the biggest discriminators of all — state governments.
Across the country, state governments have laws requiring workers in over a thousand occupations to obtain occupational licenses to work legally. Empowered by these laws, state licensing boards impose tens of thousands of additional restrictions that specifically limit work options for ex-offenders. And unlike private-sector employers, many licensing agencies can entirely disregard EEOC fair hiring standards.
Of the 40 states that have overarching laws governing how licensing boards can grant licenses, half have virtually no restrictions on how these agencies can consider criminal records — meaning many licensing agencies can consider old convictions, convictions that are unrelated to the occupation, minor infractions, and even arrests not resulting in conviction. Consequently, when ex-offenders apply to work in many occupations, they are frequently denied on grounds that are illegal for any private-sector employers to use.
While private employers are expressly forbidden from automatically denying applicants because of their criminal records, state licensing boards have passed thousands of blanket bans or vague requirements of “moral turpitude” that allow for the denial of applicants based solely on their criminal records. In Kansas, for instance, a state licensing agency can reject an application to be a licensed dietitian solely because the individual has a misdemeanor — regardless of the lack of relevance of the offense to the individual’s ability to safely work as a dietitian.
The double standard gets even worse. While employers are required by law to consider how long ago an applicant committed an offense, nearly 20,000 of the state licensing restrictions for ex-offenders are permanent. For example, a Nebraskan with a misdemeanor can be permanently banned from being a licensed massage therapist in the state. This practice is especially absurd given that once a nonviolent offender has lived crime-free for three to four years, they are statistically no more likely to commit a crime than the average person.
Overreach from licensing agencies causes actual harm. Sonja Blake ran a childcare facility for almost ten years in Wisconsin before a change of law led to her daycare-owner occupational license being revoked. The reason Wisconsin bureaucrats felt the need to take away her livelihood? A 30-year-old misdemeanor for accepting an overpayment of public assistance. Apparently, the crime’s irrelevance to providing safe childcare and her decades of following the law counted for nothing — the licensing board still retracted her certification.
With these restrictions, it is no wonder why those with records struggle to find work — especially formerly incarcerated individuals. A year after release, 60 percent of formerly incarcerated individuals in the United States are still unemployed. Being able to get a job is the clearest indicator of how likely someone is to re-offend — and the sooner a newly released person finds a job, the less likely they are to re-offend.
To help fix this problem, Wisconsin Senator Alberta Darling and Rep. Warren Petryk introduced LRB 3272 last month. The bill would require that Wisconsin’s licensing boards perform individualized reviews if they wish to deny an applicant based solely on a criminal conviction. During this review, applicants can submit evidence to show that they have been rehabilitated. And since individuals should not permanently be defined by their past, most juvenile offenses will not count towards a licensing eligibility determination.
Rather than relying on blanket bans from receiving a license for applicants with any felony or misdemeanor, Wisconsin’s boards will have to make clear which specific criminal convictions will lead to a denied license. This standard prohibits licensing boards’ use of non-specific terms like “moral turpitude” and “good character,” along with consideration of most arrests that are not followed by a conviction. If this bill becomes law, the hundreds of thousands of Wisconsin residents with criminal records will no longer face unjustified government-created bans on work.
Considering the significant impact employment has on reducing recidivism rates, policymakers should be making it less difficult for formerly incarcerated individuals and those with criminal records to find work. But by targeting private hiring practices, most reform efforts focus on the wrong target. State governments — not private employers — are the main discriminators against people with criminal records.
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