Legal Review: D.C. Job Licensing Rules Under Attack

D.C. attorney Shawn Sukumar represents clients who have been charged with criminal offenses such as driving under the influence and theft.

Senator Mike Lee (R-UT) introduced new legislation last week seeking to overhaul occupational licensing requirements in the District. The “Alternatives to Licensing that Lower Obstacles to Work,” or ALLOW Act, would require the D.C. Council to establish multiple subcommittees to ensure that locally imposed licensing requirements to enter into a given occupational field are the “least restrictive regulations necessary to protect consumers.”

While licensing requirements ostensibly protect consumers by ensuring that those providing services have attained a certain educational level or have attended required safety training, some occupational licensing schemes make entry into a given career field extremely difficult for newcomers.

Senator Lee believes that occupational licensing frameworks in place across the United States are often less focused on consumer safety than they are with protecting a given field from competition. He argues that expensive and time-consuming licensing requirements merely serve as a barrier to entry for those seeking to join the workforce, with little to no benefits passed on to consumers.

The ALLOW Act seeks to use Congress’ Article I authority over federal enclaves to restructure the licensing requirements in D.C., in the hopes that it will serve as a model that other states might adopt in the future. Local leaders strongly object to this latest attempt to use the District as a guinea pig to test out new government policies.

While the ALLOW Act does not specifically target any of D.C.’s current licensing requirements, in essence it puts the right to work in certain regulated professions on par with certain fundamental constitutional rights.

By requiring the D.C. Council to create subcommittees that will review licensing requirements to ensure they are the “least restrictive regulations necessary to protect consumers,” the bill essentially requires the Council to conduct a heightened scrutiny analysis. In addition, the bill makes an affirmative defense available to workers who feel they had been ‘substantially burdened’ by occupational regulations.

In cases where individuals are facing legal action as a result of violating licensing requirements, the availability of this affirmative defense shifts the burden of proof to the government, which must then show that the requirements serve an “important government interest” and are the “least restrictive means” of furthering that interest. This is a fairly high standard that is typically reserved for the governmental restriction of fundamental rights, such as freedom of speech.

While the D.C. Council has recently considered reforming certain licensing requirements, local leaders nonetheless object to Congress’ repeated attempts to use the District to test new policies and regulations.

Opponents of the Act feel that these types of distinctly local issues should be the left up to local leaders, not only because they are better informed about the consequences of policy changes, but because they can actually be held accountable by the residents affected.

Del. Eleanor Holmes Norton was quick to point out Senator Lee’s hypocrisy in his seeking to remove what is a ‘quintessentially local decision’ from the province of the local governing body, as Lee has championed the rights of local government independence in the past. While the Congresswoman admitted that a review of D.C.’s occupational licensing requirements “could be timely and beneficial,” she invited the Senator to work directly with local leaders to address what he feels to be “insurmountable barriers to employment.”