West Virginia lowers occupational licensing hurdles for people with criminal records

West Viginia residents with criminal records attempting to return to the workforce and contribute to society may find it easier to earn occupational licenses, thanks to a new bill signed into law by Gov. Patrick Morrisey in March.

House Bill (HB) 4819 will narrow the circumstances under which licensing authorities can deny an occupational license based on a prior criminal conviction, prohibit them from considering arrest records that did not result in a conviction, and require them to weigh specific evidence of rehabilitation. 

In the United States, approximately 1.3 million people are currently incarcerated in state and federal prisons, and most inmates will eventually be released back into their communities. When released, approximately half of released prisoners will be rearrested and incarcerated again for new crimes within one year, a major problem for American communities. 

There is compelling evidence that people who secure stable, gainful employment are less likely to commit new crimes. It is therefore in the public’s interest to make employment accessible for these people and reduce the potential for recidivism. 

One of the biggest barriers to employment for people with criminal records in West Virginia is occupational licensing restrictions. An occupational license is essentially a government-issued stamp of approval to enter certain regulated occupations. As of 2022, 67 lower-income occupations require licensing in West Virginia, and more than one in every five workers need occupational licenses to maintain employment. Occupational licenses are required to become a shampooer, massage therapist, or a vegetation pesticide applicator in West Virginia, just to name a few examples. Often, these occupational licenses require many hours of training and hefty fees. 

West Virginia has tried to fix this issue in the past. In 2019, West Virginia passed House Bill (HB) 118, eliminating “moral turpitude,” a notoriously vague term that grants boards wide latitude to deny applicants, from state laws governing licensure. 

In its place, HB 118 required boards to identify a “rational nexus” between the conviction and the occupation. HB 118 also created a predetermination petition process that allows people with criminal records to find out whether their record will disqualify them before they invest time and money in pursuing a license. 

While HB 118 was a positive step, it still left boards with broad discretion to find a logical connection between past offenses and a desired occupation. Boards had limited guidance and could still consider arrests that did not lead to convictions. The predetermination process was also limited to applicants who had never previously applied for licensure.

HB 4819 addresses some of HB 118’s shortcomings. Rather than asking only whether a conviction bears a rational nexus to the occupation, the new standards under HB 4819 require that a conviction be “directly and specifically” related to “the duties and responsibilities of the activity requiring licensure such that granting the applicant licensure would pose a direct and substantial risk to the public because the applicant has not been rehabilitated.” The new law also:

• Bars licensing authorities from considering or requiring applicants to disclose arrests that did not result in a conviction;
• Enumerates nine specific categories of rehabilitation evidence that authorities must consider, including age at the time of the offense, completion of sentence, certificates of rehabilitation, participation in mental health or substance treatment, testimonials (including from probation or parole officers), education and training, employment history, and bonding;
• Strengthens HB 118’s five-year clean-record provision. Under prior law, applicants whose non-violent, non-sexual convictions were more than five years old had the right to apply for licensure. HB 4819 prohibits licensing authorities from disqualifying those applicants based on the conviction;
• Expands petition eligibility to include people who previously applied for licensure unsuccessfully, not just those who have never applied; and
• Requires licensing authorities to update their forms, websites, and other public-facing materials to clearly explain these requirements, including the availability of the petition process.

The new standards apply to many of West Virginia’s trade and labor licenses, including plumbers, HVAC contractors, electricians, and fire protection workers. Dozens of professional and occupational boards, ranging from accountancy to cosmetology, still operate under HB 118’s rational nexus framework, leaving room for further reform.

Reason Foundation’s team of criminal justice policy experts provided technical policy advice prior to the passage of HB 4819. 

One of the bill’s sponsors, Del. Kathie Hess Crouse (R-19^th District), posted on Facebook about HB 4819’s unanimous passing: “When we talk about getting people back to work and addressing workforce shortages, this is exactly the kind of commonsense reform that helps.”

HB 4819 is a step in the right direction toward reducing recidivism in West Virginia. By lowering occupational licensing hurdles for people with criminal records, West Virginia has reaffirmed its commitment to reintegrating formerly incarcerated individuals and protecting its citizens from preventable crimes.

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Source: https://reason.org/commentary/west-virginia-lowers-occupational-licensing-hurdles-for-people-with-criminal-records/