• Justin Hein

Barriers for Licensing Removed for over 30 Million Californians

AB 2138 went into effect on July 1, restricting the use of criminal background searches to deny licensure for many professional and occupational licenses in California.

30% of all jobs in the state of California require some type of state license, permit, or approval from an oversight agency, board, committee, commission, or bureau. This represents over 1,776 professions.

A major barrier to obtaining a license is a criminal background check. While many professions justifiably warrant one, there are many that do not. Moreover, even those without a criminal background check process had required the voluntary disclosure of criminal backgrounds by applicants. The failure to accurately disclose would then be an independent ground for license denial.

An estimated 7,995,500 people in California have an arrest or conviction record – or around 1 in 3 adults in the state. Moreover, Californians have the highest recidivism rank, with its convicted residents getting arrested around 50% of the time after release.

According to the Institute for Justice, barriers to enter industries by way occupational and professional licensing costs California 195,917 jobs, $840.4 million in deadweight losses and $22 billion in misallocated resources -- per year.

A landmark study by the Center for the Study of Economic Liberty, found a direct correlation between occupational licensing burdens and recidivism rates:

‘…between 1997 and 2007 the states with the heaviest occupational licensing burdens saw an average increase in the three-year, new-crime recidivism rate of over 9%. Conversely, the states that had the lowest burdens and no such character provisions saw an average decline in that recidivism rate of nearly 2.5%’.

Enter Assembly Bill 2138. Signed into law by Governor Jerry Brown in October 2018, the law provides relief to those with backgrounds marred with a criminal record. It provides pathways for individuals to put the past in the past and let them move into professions and occupations without worrying about that prior baggage.

Reforms Effective July 1

The following reforms were effective July 1, 2020 in California by way of AB 2138:

  1. Restricts the discretion of Department of Consumer Affairs ("DCA") boards in using prior criminal history as grounds for denying a license.

  2. Most criminal convictions older than seven years may not be the basis for licensure denial.

  3. A criminal conviction must be "substantially related" to the qualifications or duties required by the license or profession in order to be a basis to deny, revoke, or suspend a license.

  4. Licensing boards may no longer deny licensure due to a conviction if it was expunged, dismissed, pardoned or if the applicant made a showing of rehabilitation for a felony conviction.

  5. Licensing boards may no longer require that applicants self-disclose prior convictions unless the license type does not require fingerprint background checks.

  6. Licensing boards must now track and publicly report licensure denial and appeal data.

Only three boards operating under the DCA were specifically exempted from the above requirements: Bureau for Private Postsecondary Education; California Horse Racing Board; State Athletic Commission.

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