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Administrative Law Section › Newsletters › Administrative Lawyer, January 2013 › Facilitating Individualized Assessments of Individuals with Criminal Records in Occupational Licensing Decisions

Facilitating Individualized Assessments of Individuals with Criminal Records in Occupational Licensing Decisions

Article Date: Wednesday, January 09, 2013

Written By: Daniel Bowes & Bill Rowe

More than 1.6 million North Carolinians, or 1 of every 5 adults in North Carolina, have criminal records.1  A criminal record often triggers hundreds of state and federal statutes that deny privileges either automatically or, more frequently, by delegating discretion to other decision makers.2 While often unknown to individuals at arrest or conviction, the impact of these civil disabilities is far-reaching and potentially more severe than the toll of criminal punishments.3  Isolating individuals from gainful employment, affordable housing, and family supports—the pillars upon which successful reentry relies—these civil disabilities undermine community safety, waste state resources, and permanently position individuals with criminal records as second-class citizens.4

Prominent in this body of statutes are those providing for the denial of occupational licensures based on criminal records. Hundreds of occupations in North Carolina require some form of licensure. In fact, these occupations constitute approximately 30 percent of all jobs.5  Consequently, well over one million North Carolinians—from lawyers to embalmers, plumbers to exterminators—must satisfy statutory and administrative requirements in order to work in their chosen fields.

The vast majority of North Carolina’s occupational licensing statutes give licensing boards and agencies the discretion to deny or revoke licensure based on various types of criminal convictions. These discretionary disqualifications, along with a handful of automatic bars to licensure, often prevent individualized assessments of the risk demonstrated by applicants’ criminal records, resulting in unnecessary denials of licensure. Only a small number of these statutes provide guidance on how to appropriately identify and weigh the risk of an applicant’s inability to satisfy the responsibilities of an occupation based on his prior criminal conduct. For the benefit of licensing boards and agencies, individuals with criminal records, and communities across North Carolina, every occupational licensing statute that provides for the denial or revocation of licensure based on a criminal record should contain guidance delineating the factors to be considered before a licensing entity may exercise its discretion.

Barriers to Licensure of Individuals with Criminal Records
North Carolina’s occupational licensing regime, as experienced by applicants with criminal records, is a labyrinth of automatic bars, discretionary disqualifications, administrative exclusions, and de facto prohibitions. Of these barriers to licensure, the most strict are the handful that automatically bar licensure of applicants with certain criminal convictions. The North Carolina Department of Insurance, for example, is barred from granting a professional bail bondsman license to any applicant with a felony conviction.6 Statutes automatically barring licensure based on criminal convictions are few but significant and demoralizing for those affected. Automatic bars to licensure are based on uncompromising policy decisions, reasoning that an individual’s prior criminal conduct—no matter the context—forever demonstrates an elevated risk of future conduct of a nature unacceptable in the practice of certain professions.

One can envision a legion of specific scenarios where such hard-and-fast rules are likely unreasonable in operation: a decades-old conviction, a conviction as a youthful offender, convincing evidence of rehabilitation, etc. Furthermore, this “once a criminal always a criminal” generalization is refuted by recent long-term research on risks of recidivism. One recent National Institute of Justice study observed that after a relatively short period of time an individual with a criminal conviction is no more likely to commit a crime than other individuals of the same age in the general population.7 The authors of this “redemption time” study argued that after this period of good behavior—between four and eight years for most felonies—an individual’s prior criminal history becomes stale and its impact on his employment opportunities should be limited.8 This new research begs a review of policy decisions that increasingly appear antiquated and short-sighted.

The North Carolina General Assembly partially responded to the excessive barrier of automatic bars to licensure during the 2011 legislative session, creating certificates of relief from collateral consequences for individuals with a single misdemeanor or low-level felony conviction.9  A certificate of relief overrides automatic bars to licensure and, instead, delegates discretion whether or not to grant the licensure to the relevant licensing board or agency.10  This is a narrow tool of relief in a sea of barriers, but it is tremendous both for those eligible and as an indicator of the General Assembly’s willingness to respond to the problem of collateral consequences.

While some licensing statutes contain automatic bars to licensure, the vast majority of licensing statutes provide independent licensing boards and agencies the discretion to deny or revoke licensure based on various types of criminal convictions. The most basic of North Carolina’s occupational licensing statutes allow licensing boards and agencies to deny or revoke licensure to an applicant based on his or her felony conviction. For example, NCGS §86A delegates this discretion to the State Board of Barber Examiners, and NCGS §88B delegates the same level of discretion to the State Board of Cosmetic Art Examiners. Other licensing statutes allow denials and revocations based on convictions of “crimes of moral turpitude” or “crimes indicating unfitness.”11  For example, the Board of Law Examiners may disbar an attorney for “conviction…of a criminal offense showing professional unfitness,” while a dietician may be denied licensure for a conviction of “any crime involving moral turpitude.”12  Commonly, boards are provided both the more clearly defined discretion to deny or revoke based on a felony conviction with the more amorphous discretion to deny or revoke based on a “misdemeanor of moral turpitude.”13  Similarly common are licensing statutes that contain “good moral character” requirements, which are frequently the basis for examining the conduct underlying applicants’ criminal records, including criminal charges that did not result in conviction.14

Use of such broad and undefined language provides much reach to licensing entities and necessarily limits challenges to the broad exercise of discretion. The task of challenging or otherwise limiting the range of criminal records upon which a licensing board can base a denial of licensure is very difficult when the operative term is as nebulous as “good moral character.” The standard of “professional unfitness” not only similarly belies precise definition, but also naturally engenders a high level of deference to a decision-making body comprised of professionals of that field. Likewise, what constitutes a “crime of moral turpitude” has been the subject of debate in many appellate courts over the years.15  The standards articulated in many of these appellate decisions do not go far beyond “I know it when I see it.” Considering the huge number of North Carolinians with criminal records, the broad range of criminal records upon which licensing boards and agencies are provided the discretion to deny licensures demands attention be given to how this authority is best exercised. 

Absence of Individualized Assessments
Every applicant with a criminal record should be provided an individualized assessment of his ability to responsibly practice his chosen occupation. That is obviously not to say every applicant with a criminal record deserves licensure—the very point of an individualized assessment is to accurately identify the many instances where an applicant’s criminal conduct demonstrates a likely inability to responsibly discharge the duties of a profession. Considering the “redemption time” research discussed above and the cost of ham-handedly excluding individuals with criminal convictions from the workforce, conducting such individualized reviews is not only fair but sensible.16

Delegations of discretion to licensing boards and agencies potentially facilitate such individualized reviews and are therefore valuable. However, many licensing boards and agencies fail to use the discretion delegated to them to engage in individualized reviews. This failure is understandable. Delegated the responsibility to identify and weigh the risk demonstrated by an individual’s criminal record but provided no further guidance on how to do so, many licensing boards and agencies are extremely wary of providing licensure to applicants with criminal records for fear of doing so incorrectly or being blamed as negligent if that now-licensed individual again engages in criminal behavior. Consequently, some occupational licensing boards essentially abdicate the opportunity to engage in individualized assessments by propagating administrative rules automatically excluding individuals with certain types of convictions from licensure. Other boards clearly exercise de facto prohibitions on providing licensure to applicants with criminal convictions. Not only are these rules and practices unfair to applicants with criminal records, they are unnecessarily blunt, imbalanced instruments that cost North Carolina communities in both lost productivity and increased rates of recidivism.17  Statutory guidance on how to identify and weigh the risk of future criminal conduct based on a criminal record is therefore beneficial to licensing boards and agencies, individuals with criminal records, and communities across North Carolina.


Statutory Guidance Facilitating Individualized Assessments
A few licensing statutes already provide guidance on how to identify and weigh the risk associated with an applicant’s criminal record. Of those licensing boards and agencies that are provided this guidance in their licensing statutes, many regulate activities in sensitive areas of public trust, including the Board of Nursing, the Locksmith Licensing Board, and the Board of Licensed Professional Counselors.18 The factors considered by these boards are nearly identical to one another and very similar to those recently advanced by the United States Equal Employment Opportunity Commission, as discussed later. For example, the North Carolina Board of Nursing may reject an application for licensure based on an applicant’s “conviction of a state crime, whether a misdemeanor or felony, that bears on an applicant’s fitness for licensure to practice nursing.”19  However, such a conviction “shall not automatically bar licensure.”20  Instead, NCGS §90-171.48(c) first requires the board to review seven considerations providing context to the conviction(s), including:

• the level of seriousness of the crime

• the date of the crime

• the age of the person at the time of the conviction

• the circumstances surrounding the commission of the crime, if known

• the nexus between the criminal conduct of the person and the job duties of the job to be filled

• the person’s prison, jail, probation, parole, rehabilitation, and employment records since the date the crime was committed

• the subsequent commission by the person of a crime

After a good-faith review of these considerations, the North Carolina Board of Nursing may exercise its discretion to grant or deny licensure to an applicant based on his criminal record.21
Not only do individualized assessments of applicants’ criminal records best serve the interests of North Carolina communities, but licensing boards and agencies not conducting individualized assessments of applicants’ criminal records risk violating Title VII of the Civil Rights Act of 1964.22 Title VII’s prohibitions on employment discrimination of protected classes are partially extended to the otherwise unprotected class of individuals with criminal records through a disparate impact theory.23  An employer is liable for violating Title VII when the employer’s ostensibly race-neutral policy has the effect of disproportionately screening out a Title VII-protected group, unless the employer demonstrates that the policy is “job related for the position in question and consistent with business necessity.”24 Because minorities are many times more likely to have criminal convictions than non-minorities, any significant hiring apparatus with a criminal-conduct exclusion will almost certainly have a demonstrable disparate impact on a protected class.25 In April 2012, the EEOC provided enforcement guidance on consideration of arrest and conviction records in employment decisions under Title VII. Private employers were intended as the primary audience of the EEOC’s recent guidance; however, the guidance is likely applicable to state licensing boards and agencies because “Title VII preempts state and local laws to the extent they ‘purport to require or permit the doing of any act which would be an unlawful employment practice’ under the statute.”26  In its guidance, the EEOC explained that a circumstance “in which the Commission believes employers will consistently meet the ‘job related and consistent with business necessity’ defense” is one in which “the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job, and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity.”27  Accordingly, if Title VII is applicable to state licensing boards and agencies, automatic statutory bars and administrative exclusions to licensure based on criminal records are likely preempted unless “narrowly targeted to identify criminal conduct with a demonstrably tight nexus to the position in question.”28 Individualized assessments are not necessarily required by Title VII, but licensure denials and revocations not determined via individualized assessments are more likely to violate Title VII.”29  


Conclusion
In order to more fully reintegrate individuals with criminal records into society while maintaining public safety and otherwise benefitting our communities, all occupational licensing statutes should require consideration of specified factors by licensing boards and agencies before those entities are allowed to exercise their discretion to deny licensures based on applicants’ criminal records.

Statutorily specifying the factors to be considered provides clear guidance to a licensing board or agency on how to determine whether an applicant’s prior criminal conduct demonstrates a likely inability to satisfy the duties of the occupation. Doing so not only enhances the likelihood licensing boards and agencies will engage in fair and accurate individualized assessments of risk, but it also provides valuable guidance to applicants on how to appropriately explain the context of their conduct. Licensing boards and agencies that have long been required to provide individualized assessments of applicants’ criminal convictions, like the North Carolina Board of Nursing, have clearly not been precluded from maintaining the high standards demanded of their respective professions. Indeed, good sense persuades us that the use of individualized assessments, by more precisely identifying risk and not filtering out highly qualified applicants, actually aids the maintenance of these high ideals of professionalism.  •

Daniel Bowes is a staff attorney at the North Carolina Justice Center.

Bill Rowe is General Counsel and Director of Advocacy at the North Carolina Justice Center.


End Notes
1. Survey of State Criminal History Information Systems 2008, U.S. Department of Justice Bureau of Justice Statistics, October 2009.
2. According to the UNC School of Government’s Collateral Consequences Assessment Tool (C-CAT), there are nearly 1,000 state and federal statutes that potentially deny privileges to North Carolinians based on some sort of criminal record. “Collateral consequences” affect immigration, housing, child custody, foster care/adoption, occupational licensing, financial aid, public benefits, driver licenses, parental rights, workers compensation, unemployment insurance, voting, hunting licenses, and military service, among many other rights and privileges.
3. Michael Pinard and Anthony Thompson, “Offender Reentry and the Collateral Consequences of Criminal Convictions: An Introduction,” New York University Review of Law and Social Change 30(4): 585-620.
4. Id.
5. Morris Kleiner and Alan Krueger, “The Prevalence and Effects of Occupational Licensing,” Working Paper 14308, NBER Working Paper Series, National Bureau of Economic Research, September 2008.
6. Bail Bondsmen and Runners, NCGS §58-71-80(b).
7. Alfred Blumstein and Kiminori Nakamura, “Redemption in an Era of Widespread Criminal Background Checks,” National Institute of Justice Journal No. 263, June 2009.
8. Id.
9. John Rubin and Whitney Fairbanks, “Relief from the Collateral Consequences of a Criminal Conviction,” Administrative Lawyer, November 2011.
10. Id.
11. Attorneys-At-Law, NCGS §84-28; Dietitian/Nutritionist, NCGS §90-363.
12. Id.
13. Architect, NCGS 83A-15(a)(3)(d); Dental Hygienist, NCGS 90-229(a)(3).
14. Plumbing and Heating Contractor, NCGS §87-21(a); General Contractor, NCGS §87-10; Locksmith, NCGS §74f-18(c).  Also, for an example of a denial of licensure based on charges without conviction, see Scofield v. North Carolina Private Protective Services Board, 09 DOJ 5064, OAH Proposal for Decision, February 2010 (“At hearing, Respondent failed to present sufficient evidence to show that Petitioner was the defendant in the “Unlawful Dealing with Child” New York charge.  Even if you assume Petitioner was the defendant in that case, Respondent failed to present sufficient evidence explaining what was the nature of that charge, circumstances surrounding the charge, the disposition of that charge, and how that charge made Petitioner lack good moral character or temperate habits to possess an armed guard registration permit.”).
15. Jeff Gray, “What Constitutes Moral Turpitude?” Administrative Lawyer, May 2008.
16. “State of Recidivism: The Revolving Door of America’s Prisons,” Pew Center on the States, April 2011.
17. Costs of recidivism include lost productivity, price of incarceration, lower tax base, greater family dependence on assistance programs, court and prosecution costs.  
18. Nurse, NCGS §90-171.48(c); Locksmith, NCGS §74F-18(c); Professional Family Counselor, NCGS §90-345(c).
19. Nurse, NCGS §90-171.48(c).
20. Id.
21. Id.
22. “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” EEOC Enforcement Guidance, Number 915.002, April 2012, accessible here: www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
23. Id.
24. Id.
25. Id. “African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.”
26. Id. “In some industries, employers are subject to federal or state laws and regulations that prohibit individuals with certain convictions from holding specific positions, or engaging in certain occupations. Title VII does not override such federal laws and regulations, but Title VII does preempt state and local laws to the extent they ‘purport to require or permit the doing of any act which would be an unlawful employment practice’ under the statute. 42 U.S.C. § 2000e-7.”
27. Id. “Relevant individualized evidence includes, for example: the facts or circumstances surrounding the offense or conduct; the number of offenses for which the individual was convicted; older age at the time of conviction, or release from prison; evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct; the length and consistency of employment history before and after the offense or conduct; rehabilitation efforts, e.g., education/training; employment or character references and any other information regarding fitness for the particular position; and whether the individual is bonded under a federal, state, or local bonding program.”
28. Id.
29. Id. “Although Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.”


Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.