Fair Chance Licensing Solutions

Fair chance licensing policies are designed to balance several factors:

• Reducing criminal history-based barriers to licensure when an applicant’s record does not pose a public safety risk given the duties of the occupation
• Equipping licensing bodies to identify and exclude the small number of applicants whose criminal history presents a meaningful public safety risk
• Ensuring consistency and fairness for all applicants

Consideration of criminal history should therefore be tailored to the nature of each occupation, focused on individualized risk, conducted in a systematic manner, and avoided altogether where unnecessary. The following strategies can help licensing bodies ensure that their consideration of criminal history is aligned with these goals.

Identification and Consideration of Potentially Relevant Offenses

For most occupations, only a limited set of criminal convictions is relevant to safe performance of the occupation. To ensure that only those convictions are considered, licensing bodies should identify and publish occupation-specific lists of the specific types of convictions that may be considered. Doing so streamlines criminal history review and helps prospective applicants make informed decisions about training and licensure. Some states have created publicly available matrices that specify which convictions may be considered for each occupation and how licensing bodies evaluate them.

Consideration of Older Convictions

Research consistently shows that time since conviction is a strong predictor of reoffending. For most people, the likelihood of reoffending drops to the level of someone with no convictions after just a few conviction-free years. Licensing bodies should therefore restrict consideration of convictions—especially first offenses—once sufficient time has passed without subsequent convictions. “Look-back” policies should be publicly available and clearly specify which convictions they cover and how older offenses are evaluated.

Consistent Individualized Consideration

Standards for discretionary consideration of criminal history should be clearly defined and consistently applied. In accordance with U.S. Equal Opportunity Commission guidance, licensing bodies should consider the following factors in each case:

1. Time since conviction
2. Nature and severity of the offense
3. Age at the time of conviction
4. Evidence of rehabilitation
5. Other mitigating circumstances

Note that many states’ licensing statutes require consideration of similar factors.

Prequalification determinations reduce the deterrent effect of discretionary criminal history-based licensing barriers by allowing prospective applicants to learn whether their criminal history may be disqualifying before investing time and money in satisfying licensing requirements. When implemented properly, these processes allow licensing bodies to quickly clear prospective whose records raise no concern while providing appropriate notice to those that may. To be effective, prequalification processes should be easily accessible and free of unnecessary burdens.

Requests for Documentation

Licensing bodies should avoid requiring extensive documentation or explanations at the prequalification stage. In many cases, a brief description of the age and type of conviction is sufficient to assess whether a conviction is not disqualifying, especially when relevant offenses have already been categorically identified. When further information is needed, it should be requested through individualized follow-up. Notably, most states’ fair chance licensing statutes reduce the need for extensive documentation by allowing licensing bodies to rescind prequalification determinations if information is later found to be inaccurate at the time of full application.

Fees

Fees for prequalification determination requests should be minimal and, where possible, avoided altogether. Because many convictions—based on type or age—have no relationship to the licensed occupation, a large share of requests will require little or no review. Where fees are necessary or required by law, they should be credited toward the cost of a full licensure application.

Forgoing Prequalification

Where licensing bodies publicly identify disqualifying convictions, many prospective applicants will not need to seek prequalification determinations. To avoid unnecessary procedural burdens, licensing bodies should clearly state that prequalification is optional and not a prerequisite for submitting a full licensure application.

Notice and Finality of Decisions

Notices that a person is not prequalified for licensure should explain the specific reasons, referencing any relevant factors considered by the licensing body. They should also outline steps the prospective applicant can take to become prequalified in the future or approved when submitting a full application. Consistent with most state laws, such notices should clearly indicate that the prospective applicant’s criminal history will be fully reconsidered if they submit a full licensure application or a subsequent prequalification request.

Providing prospective applicants with clear information about if, when, and how their criminal history may be considered is essential to mitigating the deterrent effect of discretionary licensing barriers. Licensing body websites should make the following information easily accessible:

• Whether criminal history is considered in the licensing process
• The extent to which criminal history-based disqualifications are mandatory or discretionary under state law
• Which types of criminal convictions may be considered
• The standards used when considering criminal history
• How criminal history will be obtained and the process for challenging the accuracy of background checks
• The documentation or information an applicant is required to submit about criminal history
• The process for submitting information related to fitness or rehabilitation that may mitigate disqualification
• The process for requesting a prequalification determination, if available
• The extent to which criminal history has been used to disqualify past applicants and the types of convictions that have resulted in denial

Similarly, application materials should clearly state the extent to which criminal history may be disqualifying, especially when they include questions that may implicate criminal history.

Where prequalification is available (and where other processes specific to applicants with criminal histories exist), licensing body websites and application forms should include information about how to initiate those processes. When possible, occupational licensing bodies should provide a paperless online process for prequalification requests.

Licensing bodies should issue a final denial due to criminal history only after sending the applicant a notice of intent to deny and considering any mitigating information the applicant provides in response.

The notice should explain the specific reasons for denial, reference relevant state law or licensing body policies, and identify the types of clarifying or mitigating information that will be considered, along with the process and timeline for submitting it. Any steps the applicant can take to address a pending denial should be clearly outlined.

If a final denial is issued, the notice should also provide actionable information about appeals and reapplication.

Data collection is critical for understanding the impact of licensing barriers and fair chance licensing policies and evaluating the extent to which they are being consistently applied.  Publicly available data about the number and nature of criminal history-based denials also helps prospective applicants better understand the role their criminal history may play in the licensing process.

Licensing bodies should collect and publish anonymized data related to the following:

• The number of applicants with criminal histories
• The denial rate of applicants with criminal histories
• Which types of criminal convictions did/did not result in denial, their age, and the rate of denial for each
• The reason(s) for each criminal history-based denial, including:
  • Conviction directly related to the occupation
  • Insufficient time since conviction
  • Pending charges or ongoing investigations
  • Insufficient evidence of rehabilitation/fitness
  • Failure to meet other licensing requirements
• How many applicants provided mitigating information in prequalification requests and full license applications
• The number of prequalification requests received and the rate of prequalification grants
• The attrition rates of applicants with criminal history at various stages of the process, including post-prequalification and post-application

Licensing bodies should also collect data on post-licensure arrests, convictions, and complaints and disciplinary actions for licensees with and without criminal histories at the time of application. Comparing these outcomes provides critical insights into the impact of licensing barriers and fair chance policies on public safety and professional standards and is essential for evaluating whether policies related to criminal history should be stricter or more lenient.