Unencumbered license to practice on applications...legal?

Editorial Team / Admin · Apr 17, 2016

How would this meet the legal definition of discrimination? It doesn't, as encumbered professional licenses aren't a protected class. Right now, many places are seeing an employer's market, and the employer can set whatever job requirements they want and still get more applicants than open positions. You may find yourself having to relocate to an area where an unencumbered license doesn't affect potential jobs to the same degree.

glass_houseRN, BSN, MSN, RN · Apr 17, 2016

My license was disciplined off the get go because of criminal charges in my past history. Employers aren't legally allowed to discriminate based on past criminal charges. But if you have a disciplined license because of past criminal charges they can. This seems to be a shady way to circumvent that law. You are right, professional licenses are not a protected class. They should be. And I have a job. It just irritates me that I am automatically disqualified from others because of that. And I do not believe it has to do with employers market. There's a place I know that needs nurses badly and they put that on their requirements. Uninformed HR IMO

elkpark · Apr 17, 2016

What do you mean by "employers aren't legally allowed to discriminate based on past criminal charges"? Every job application I've ever filled out has asked about any prior arrests or charges or convictions, and we all know what that box is for. There is a national "Ban the Box" movement now that is working to make it illegal to ask people up front about prior criminal records, but there is nothing (in most states, at least; I believe there are some states in which it is currently illegal to ask about criminal records on initial applications; are you maybe in one of those states?) currently stopping employers from screening potential employees up front on the basis of prior criminal records, and even the "Ban the Box" movement is not suggesting that employers never be able to find out about the criminal records of potential employees, just that they not be able to ask on application forms.

1sttime · Apr 18, 2016

To me your license is not encumbered. Here is the definition: restrict or burden (someone or something) in such a way that free action or movement is difficult."

You can do anything another nurse can do- and normally your license isn't checked until after you are hired if at all...

glass_houseRN, BSN, MSN, RN · Apr 18, 2016

[COLOR=#252525]Employment discrimination against persons with criminal records in the United Stateshas been illegal since passage of the [/COLOR]Civil Rights Act of 1964[COLOR=#252525]. Title VII applies to businesses with more than 15 employees and defines two types of discrimination, disparate treatment and disparate impact. The [/COLOR]Equal Employment Opportunity Commission[COLOR=#252525] has been enforcing Title VII since it came into effect in 1965.

[/COLOR]

So they can ask you if you committed criminal charges and you have to be honest, but they are not supposed to discriminate against you because of your answers. Which they sometimes do of course, but alas...

Thanks for the replies guys. I guess I'm just ranting about the injustice of it all. If enough people speak up over time maybe it will change one day. I'll write to my congress my opinions on the subject. I'm just grateful to have a job right now! Hopefully more employers give us a fair chance. Oh and I know they usually don't check your license until after you're hired most of the time, but once they find out about a restricted/encumbered license, they say bye bye!

RNdynamic · Apr 19, 2016

What do you mean by "employers aren't legally allowed to discriminate based on past criminal charges"? Every job application I've ever filled out has asked about any prior arrests or charges or convictions, and we all know what that box is for. There is a national "Ban the Box" movement now that is working to make it illegal to ask people up front about prior criminal records, but there is nothing (in most states, at least; I believe there are some states in which it is currently illegal to ask about criminal records on initial applications; are you maybe in one of those states?) currently stopping employers from screening potential employees up front on the basis of prior criminal records, and even the "Ban the Box" movement is not suggesting that employers never be able to find out about the criminal records of potential employees, just that they not be able to ask on application forms.

Not totally true. Just because it is legal for employers to ask about criminal records, it does not mean it is legal to discriminate based on criminal records. Just as how schools and employers can (and often do) ask you what your race or sex is, but cannot legally discriminate against you for it.

Courts have upheld rulings stating that discriminating against someone on the basis of their criminal record is illegal, because of the ethnic disparities in the criminal justice system. They see it as just as illegal as discriminating against people based on race or sex. That is why if you have a criminal record and don't get a job because of it, the employer won't actually tell you that they chose not to hire you due to a record. If they do they know they can get in trouble. Instead they'll come up with some other non-reason.

allnurses Guide · Apr 19, 2016

You need to find a place to work that will hire you with the encumbered license. I went the diversion route and admitted to nothing other than being a garden variety Alcoholic although I was so much more than that. Still they couldn't prove what they suspected so I was never arrested. My diversion never appeared on my license and the whole thing just went away on completion. This there are employer's out there who will help you. I worked psych during my diversion years and the DON told me I was her "Grand Experiment" as I was her 1st diversion nurse 8 years ago. I still work their and still hire nurses with stipulations. If you can PM and are in the Los Angeles Basin of California contact me. You still have to interview and jump though all board hoops but at least they don't treat you like you have two heads or something.

Hppy

glass_houseRN, BSN, MSN, RN · Apr 21, 2016

Unfortunately in Ohio there is no diversion program anymore ... They just prefer to simply discipline everyone.

HouTx, BSN, MSN, EdD · Apr 25, 2016

Based on my own experiences with development of hiring practice policies, I would be willing to bet that organizations with the "unencumbered only" requirements are doing this for one of two reasons: 1) bad outcomes with an employee or 2) pressure from their insurers ..... healthcare companies all have to carry Liability Insurance & the premiums are pretty steep. They'll pretty much do anything within reason to decrease those premiums.

In my state, an encumbered license means that you have been found "guilty" of an infraction so your license was restricted to lessen chances of a recurrence. This is NOT a protected class, particularly in healthcare - where the vulnerability of our clients is of much more concern than the rights of employees.

I'll be following this thread to find out more about this latest wrinkle in the employment landscape.

glass_houseRN, BSN, MSN, RN · Apr 26, 2016

Based on my own experiences with development of hiring practice policies, I would be willing to bet that organizations with the "unencumbered only" requirements are doing this for one of two reasons: 1) bad outcomes with an employee or 2) pressure from their insurers ..... healthcare companies all have to carry liability insurance & the premiums are pretty steep. They'll pretty much do anything within reason to decrease those premiums.
In my state, an encumbered license means that you have been found "guilty" of an infraction so your license was restricted to lessen chances of a recurrence. This is NOT a protected class, particularly in healthcare - where the vulnerability of our clients is of much more concern than the rights of employees.
I'll be following this thread to find out more about this latest wrinkle in the employment landscape.

I absolutely agree that it's from pressure from insurance companies and liability. The insurance companies dictate everything now a days. I did notice that my facility has that on their requirements now too but they hired me! So I would encourage people if they're really interested to apply anyways and be honest at the end, if they really like you they might make an exception.

manager123 · Apr 30, 2016

For many employers, they will work with their current staff on these issues. They have formed a relationship and know the staff will follow through. New hires are a roll of the dice and since the CNO is ultimately responsible, many will simply not take the chance.

It also greatly depends on what the restrictions are. . . unable to give narcotics? No float? Level of supervision required? Unable to work night shift? All of these will play into hiring decisions. Depending on the restrictions, you may not qualify under their expectations to be able to work on the inpatient side. You may need to look for work in outpatient testing, Occupational health, or other similar areas until your license is cleared.