SB138INTRODUCED
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SB138
6HW8313-1
By Senator Smitherman
RFD: Judiciary
First Read: 06-Feb-25
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5 6HW8313-1 02/06/2025 PMG (L)PMG 2025-626
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First Read: 06-Feb-25
SYNOPSIS:
Under existing law, certain occupational
licensing boards may automatically disqualify an
applicant convicted of a crime from licensure to
practice a particular profession or occupation unless
the individual has received an order of limited relief
granted by a circuit court, in which case the
occupational licensing board may not automatically
disqualify the individual but may consider the conduct
underlying the conviction when determining whether to
disqualify the individual from licensure.
This bill would create a presumption of
rehabilitation and fitness for licensure if an
individual has been granted an order of limited relief.
This bill would establish circumstances under
which an individual's felony conviction may not
disqualify the individual from obtaining an
occupational license and would provide immunity to
employers in certain circumstances that hire
individuals who have been granted an order of limited
relief.
This bill would establish a formal process for
an individual to request an occupational licensing
board to determine whether the individual's conviction
disqualifies that individual from obtaining an
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disqualifies that individual from obtaining an
occupational license.
This bill would require the Board of Pardons and
Paroles to create a certificate of employability to be
issued to those individuals, when released on parole
from the custody of the Department of Corrections, who
meet certain eligibility criteria established by the
board, to assist those individuals in obtaining
employment.
This bill would prohibit certain individuals
from being eligible for a certificate of employability.
This bill would also provide immunity in certain
circumstances to employers that hire individuals who
have been issued a certificate of employability.
A BILL
TO BE ENTITLED
AN ACT
Relating to eligibility for employment of convicted
individuals; to amend Sections 12-26-7, 12-26-9, 41-9A-1, and
41-9A-2, Code of Alabama 1975; to add Section 41-9A-2.1 to the
Code of Alabama 1975; to create a presumption of fitness for
occupational licensure in certain circumstances; to provide
immunity to employers in certain circumstances that hire
individuals granted an order of limited relief; to provide
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individuals granted an order of limited relief; to provide
further for the process under which an occupational licensing
board may disqualify an individual convicted of a crime from
obtaining a license to practice a profession or occupation; to
require the Board of Pardons and Paroles to create a
certificate of employability to be issued to certain
individuals upon their release on parole from the Department
of Corrections; and to provide immunity to employers in
certain circumstances that hire individuals who have been
issued certificates of employability.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Sections 12-26-7, 12-26-9, 41-9A-1, and
41-9A-2, Code of Alabama 1975, are amended to read as follows:
"§12-26-7
(a) A petition to obtain an order of limited relief
shall include a sworn statement made under penalty of perjury
by the petitioner stating all of the following:
(1) That the petitioner is not subject to the
limitations in Section 12-26-6 and is eligible to seek an
order of limited relief.
(2) Whether the petitioner has previously applied for
an order of limited relief in any jurisdiction and whether an
order has been granted previously.
(3) A list specifying the any convictions and
collateral consequences to which the order should apply.
(b) Once a petition has been filed, the circuit clerk
shall serve the petition on the occupational licensing board,
as defined in Section 41-9A-1, or other entity responsible for
the collateral consequence that the petitioner is seeking
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the collateral consequence that the petitioner is seeking
relief from. Once service is made, the court shall review
available presentence and other reports on the defendant and
may order a postsentence report to be completed by the Board
of Pardons and Paroles or by the Commissioner of the
Department of Corrections. The postsentence report shall
contain information required by the court, which may include,
but not be limited to, any of the following:
(1) A statement of the offense or offenses and
surrounding circumstances.
(2) A statement of the petitioner's criminal and
juvenile record.
(3) A record of previous applications for orders of
limited relief.
(4) A statement of the petitioner's medical and
psychological history, if available.
(5) A statement of the petitioner's history while under
the custody of the Department of Corrections, if any.
(6) Any previous probation or sentencing reports
prepared by the Board of Pardons and Paroles.
(c) Upon completion, the Board of Pardons and Paroles
shall provide copies of the postsentence report to the court
and to either the petitioner's attorney or the petitioner, if
not represented by an attorney.
(d) When a petitioner seeks relief from a conviction
from a jurisdiction other than this state, the circuit court
may require the petitioner to have additional documentation
sent from that jurisdiction, including, but not limited to,
any of the following:
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any of the following:
(1) Any orders of limited relief, Certificates of
Relief from Disabilities, Certificates of Rehabilitation, or
similar documents issued by that jurisdiction.
(2) Any transcripts or other court records.
(3) Any sentencing reports, probation records, or
similar documents.
(4) Any other available documentation necessary in
considering the merits of the petition.
(e) Filing a petition for an order of limited relief
shall constitute a waiver of privilege for any parole or
probation records related to the offenses for which the
petition is filed.
(f) Following a ruling by the court on the petition,
any filed parole or probation records or other material that
is otherwise subject to privilege shall be considered
confidential.
(g) An individual required to register as a sex
offender pursuant to Chapter 20A of Title 15 or convicted of a
violent offense as defined in Section 12-25-32 is ineligible
to obtain an order of limited relief. "
"§12-26-9
(a) The circuit court shall rule on the merits of the
petition in accordance with subsection (d) within 90 calendar
days of the date the petition was filed. The court, for good
cause, may extend the time within which it must rule on the
petition by order entered prior to the expiration of the
initial 90-day period.
(b) If the court determines that a hearing is not
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(b) If the court determines that a hearing is not
necessary, the court may rule without a hearing.
(c) If a hearing is held, the hearing shall be
conducted in a manner prescribed by the trial judge and may
include oral argument and review of relevant documentation in
support of, or in objection to, the granting of the petition.
Leave of the court shall be obtained for the taking of witness
testimony relating to any disputed fact.
(d) In ruling on the petition, the court may consider
the following factors, in addition to the information
contained in the postsentence report:
(1) The nature and seriousness of the offense.
(2) The circumstances under which the offense occurred.
(3) Whether the offense or offenses for which the order
is sought were the result of an isolated instance or a pattern
of conduct.
(4) The relationship between the offense and collateral
consequence or consequences from which the petitioner seeks
relief.
(5) Available probation or parole records, reports, or
recommendations.
(6) Evidence of previous orders of limited relief
granted to the petitioner or prior expungement of the
petitioner's record.
(7) Any other matter the court deems relevant.
(e) The court shall grant the petition if it is
reasonably satisfied from the evidence that granting the
petition will materially assist the petitioner in obtaining or
maintaining employment and in living a law-abiding life, and
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maintaining employment and in living a law-abiding life, and
will not pose an unreasonable risk to the safety or welfare of
the public or any individual.
(f) There is no right to an order of limited relief,
and any request for such an order may be denied at the sole
discretion of the court.
(g) The ruling of the court shall be subject to direct
appeal to the Alabama Court of Civil Appeals and shall not be
reversed absent a showing of an abuse of discretion.
(h) When the court grants a petition for an order of
limited relief, the petitioner shall be entitled to three
copies of the order from the clerk's office.
(i) When an order of limited relief is granted, an
occupational licensing board, as defined in Section 41-9A-1,
may still consider the conduct underlying the conviction upon
which the order was granted in determining whether to deny,
revoke, or suspend a license , but the order of limited relief
shall create a presumption of rehabilitation and fitness for
obtaining a license as defined in Section 41-9A-1.
(j) In a judicial or administrative proceeding alleging
negligent hiring, an order of limited relief granted to an
individual pursuant to this section may be introduced as
evidence of a person's due care in hiring that individual if
the person knew of the order of limited relief at the time of
the alleged negligent hiring.
(k) In any proceeding on a claim against an employer
for negligent hiring based upon the prior conviction of an
employee, an order of limited relief granted to the employee
pursuant to this section shall provide immunity for the
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pursuant to this section shall provide immunity for the
employer with respect to the claim of negligent hiring if the
employer knew of the order of limited relief at the time of
the alleged negligent hiring. This subsection does not provide
immunity to the employer for other claims related to the
conduct of the employee.
(l) An employer who hires an individual who has been
granted an order of limited relief is subject to suit in a
civil action based on or relating to the retention of the
individual as an employee only if:
(1) The individual, after being hired, demonstrates a
danger to others or is subsequently convicted of a felony; and
(2) The individual is retained by the employer after
the demonstration of danger to others or a subsequent
conviction that is substantially similar to the conduct
resulting in the prior conviction upon which the order of
limited relief was granted. "
"§41-9A-1
As used in this chapter, the following terms have the
following meanings:
(1) LICENSE. Any license, certificate, or other
evidence of qualification that an individual is required to
obtain before he or she may engage in or represent himself or
herself to be a member of a particular profession or
occupation. The term does not include certification by the
Alabama Peace Officers' Standards and Training Commission or
driver licenses.
(2) OCCUPATIONAL LICENSING BOARD. Any state board,
agency, commission, or other entity in this state that is
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agency, commission, or other entity in this state that is
established for the primary purpose of regulating the entry of
individuals into, or the conduct of individuals within, or
both, a particular profession or occupation, and that is
authorized to issue licenses. The term does not include any
state agency staffed by full-time state employees that, as a
part of its regular functions, may issue licenses."
"§41-9A-2
(a) Notwithstanding any other law to the contrary, an
occupational licensing board shall not deny an application for
a license due to any of the following:
(1) A criminal conviction that is not directly related
to the duties and responsibilities of the profession or
occupation for which the license is required.
(2) A criminal conviction that has been pardoned,
sealed, expunged, or otherwise nullified or made confidential
by the jurisdiction from which it originated.
(3) An arrest that did not result in a criminal
conviction and for which criminal charges are not currently
pending.
(4) An applicant's lack of "good moral character" or
failure to adhere to any similarly vague or generic standard.
(b) In determining whether a criminal conviction is
directly related to the duties and responsibilities of the
profession or occupation for which a license is required, an
occupational licensing board shall consider all of the
following factors on a case-by-case basis:
(1) The nature and seriousness of the crime for which
the individual was convicted.
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the individual was convicted.
(2) The nature of the specific duties and
responsibilities for which the license is required.
(3) The age of the individual at the time of the
commission of the crime.
(4) The passage of time since the commission of the
crime.
(5) Any evidence of rehabilitation or treatment
undertaken by the individual that might mitigate the direct
relationship between the criminal conviction and the duties
and responsibilities of the profession or occupation sought.
(c) An occupational licensing board that makes
determinations pursuant to this section and Section 41-9A-2.1
shall publish on the occupational licensing board's official
website the standards and factors that shall guide the board
in making such determinations.
(d) When applying for a license, an applicant may
attach to the application a valid order of limited relief
granted under Section 12-26-9. A valid order of limited relief
shall create a presumption that an individual's criminal
conviction is not directly related to the duties and
responsibilities for which a license is required.
(b) An occupational licensing board may not
automatically deny an application for a license or revoke an
existing license because of a criminal conviction when a valid
order of limited relief has been issued for the otherwise
disqualifying conviction or convictions in question; provided,
however, an occupational licensing board may consider the
conduct underlying a conviction upon which an order of limited
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conduct underlying a conviction upon which an order of limited
relief was granted and may deny, revoke, or suspend a license
based on that underlying conduct.
(c) This section does not apply to law enforcement
employment, Alabama Peace Officers' Standards and Training
Commission certification, or the issuance of drivers'
licenses."
Section 2. Sections 41-9A-2.1 is added to the Code of
Alabama 1975, to read as follows:
§41-9A-2.1
(a) An individual who has been convicted of a criminal
offense, at any time, may request in writing that an
occupational licensing board determine whether the
individual's criminal conviction disqualifies that individual
from obtaining a license from the board. Any individual making
a request shall include any required fee as provided in
subsection (e) and information relevant to the factors listed
in Section 41-9A-2(b). An occupational licensing board, by
rule, may prescribe a standard request form to be used by all
individual's requesting a determination.
(b) Not later than 30 days after receiving a request,
an occupational licensing board shall make a determination,
based on the factors provided in Section 41-9A-2, whether the
individual's criminal conviction disqualifies the individual
from obtaining a license and notify the individual, in
writing, of its determination. If the occupational licensing
board disqualifies the individual, the notification must
include an explanation that addresses the factors provided in
Section 41-9A-2.
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Section 41-9A-2.
(c) A determination made pursuant to this section that
an individual's criminal conviction does not disqualify the
individual from obtaining a license may be rescinded if, at
the time the individual submits a completed application for
licensure, the individual:
(1) Has been convicted of a subsequent crime;
(2) Is the subject of a pending criminal charge or
charges; or
(3) Has failed to disclose a prior criminal conviction.
(d) If an individual submits a completed application
for licensure after an occupational licensing board has
determined pursuant to this section that the individual's
criminal conviction disqualifies him or her from obtaining a
license, the occupational licensing board shall make a de novo
determination as further provided in subsections (a) and (b).
(e) An occupational licensing board may charge a fee of
not more than twenty dollars ($20) per request to reimburse
the board for costs incurred in making a determination.
(f) An occupational licensing board may adopt rules to
implement Section 41-9A-2 and this section.
Section 3. (a) The Board of Pardons and Paroles shall
create a certificate of employability that shall be issued by
the board to individuals under the custody of the Department
of Corrections who meet eligibility criteria established by
the board, by rule, which demonstrates an individual's
achievements toward successful reentry into the workforce. The
eligibility criteria shall include consideration of:
(1) An individual's disciplinary record while in the
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(1) An individual's disciplinary record while in the
custody of the Department of Corrections;
(2) Successful completion of designated programs or
development of a useful skill set while in the custody of the
Department of Corrections; and
(3) Any other factor the board deems relevant to an
individual's qualification for the certificate.
(b) The Board of Pardons and Paroles shall notify
individuals in the custody of the Department of Corrections of
the possibility to earn a certificate of employability. Prior
to being released on parole, the board shall determine whether
an individual meets the eligibility criteria and if so, issue
a certificate of employability when the individual is released
from the custody of the department for use in obtaining
employment.
(c) An individual required to register as a sex
offender pursuant to Chapter 20A of Title 15 or convicted of a
violent offense, as defined in Section 12-25-32, is ineligible
to be issued a certificate of employability.
(d) The Board of Pardons and Paroles shall revoke a
certificate of employability if the individual to whom the
certificate of employability was issued is convicted of a
felony offense committed after the issuance of the certificate
of employability.
(e)(1) In a judicial or administrative proceeding
alleging negligent hiring, a certificate of employability
issued to an individual pursuant to this section may be
introduced as evidence of an employer's due care in hiring
that individual if the employer knew of the certificate at the
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that individual if the employer knew of the certificate at the
time of the alleged negligent hiring.
(2) In any proceeding on a claim against an employer
for negligent hiring based upon the prior conviction of an
employee, a certificate of employability issued to an
individual pursuant to this section shall provide immunity for
the employer with respect to the claim of negligent hiring if
the employer knew of the certificate at the time of the
alleged negligent hiring. This subdivision does not provide
immunity to the employer for other claims related to the
conduct of the employee.
(3) The revocation of a certificate of employability
does not affect the right of an employer to rely on the
validity of the certificate of employability at the time of
hiring unless the employer knew before the individual was
employed that the certificate of employability was fraudulent
or was revoked.
(f) An employer who hires an individual who has been
issued a certificate of employability may be held liable in a
civil action based on or relating to the retention of the
individual as an employee only if:
(1) The individual, after being hired, demonstrates a
danger to others or is convicted of a felony;
(2) The plaintiff proves by a preponderance of the
evidence that the individual having hiring and firing
responsibility for the employer had actual knowledge that the
employee demonstrated a danger to others or was convicted of a
felony; and
(3) That the individual having hiring and firing
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(3) That the individual having hiring and firing
responsibility, upon having actual knowledge that the
individual demonstrated a danger to others, nonetheless
retained the individual as an employee.
(g) Nothing in this section shall be construed to
constitute a waiver of the sovereign immunity of the state,
consistent with Section 36-1-12, Code of Alabama 1975, and no
action shall be maintained against the state or any agency or
department thereof for issuance of or failure to issue any
certificate of employability.
Section 4. This act shall become effective on October
1, 2025, and applies to any cause of action pursuant to this
act which occurs on or after October 1, 2025.
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