Committee substitute for SB 263 narrows how criminal records can bar licensure

The West Virginia Legislature’s Workforce Committee approved a committee substitute for Senate Bill 263, changing how the Division of Labor and the State Fire Marshal may consider prior criminal convictions when deciding initial licensure for many professions.

The committee substitute replaces the existing “rational nexus” standard with a new “directly and specifically related” standard that requires a licensing authority to find a conviction bears a direct and substantial risk to the public by virtue of its relationship to the duties of the license before denying initial licensure. The substitute limits application of the new standard to occupations regulated by the Division of Labor and the State Fire Marshal and keeps the rational nexus test for polygraph examiners.

The change “provides additional guidance for making this determination,” Counsel explained to the committee, and the substitute lays out a set of factors licensing authorities should consider, including the nature and seriousness of the offense, completion of rehabilitative programs, certificates of good conduct or employer references, and enrollment in education or training programs. The substitute also bars licensing authorities from disqualifying an applicant on the basis of an arrest that did not result in conviction and creates a five‑year rule under which a licensing authority may not disqualify an applicant who has had no subsequent conviction in that interval — except for offenses described in the bill as violent or sexual in nature.

“Really, the intent of licensure is to ensure safety and that workers are meeting the standards,” Vittorio Nastasi, director of criminal justice policy at Reason Foundation, told the committee, arguing the bill makes licensure decisions focus on duties and responsibilities rather than distant convictions. Megan Forbes, senior legislative counsel at the nonprofit Institute for Justice, said the proposal would make licensing decisions “more transparent” and help people who have been rehabilitated obtain work; she added that at least 20 states use the directly related standard and described it as a national best practice.

The substitute also adds a pre‑application petition process that allows an individual who has not previously held the license to ask the licensing authority—before applying or after a denial—for a determination of how their criminal history would affect licensure. The committee substitute narrows the bill from the introduced version, which would have applied to additional licensing authorities (including DMV, Department of Agriculture, State Racing Commission, chapter 30 boards, Division of Financial Institutions and the Insurance Commissioner).

Committee members discussed the record‑sealing window and which boards would be covered; the committee substitute reflects earlier committee action that applied the change only to the Division of Labor and the State Fire Marshal. The substitute also incorporates prior amendments made by Senate Bill 534 for the polygraph examiner section.

The committee voted to adopt the committee substitute by voice vote. The vice chair moved that the substitute be reported to the full Senate with a recommendation that it do pass and, under the original double committee reference, first be referred to the Judiciary Committee; the motion carried and the substitute will be reported to the Senate.