IN THE SENATE OF THE UNITED STATES
October 11, 2018
Mr. Cornyn introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To limit private antitrust damages against occupational licensing boards, to promote beneficial reforms of State occupational licensing, and for other purposes.
This Act may be cited as the
Occupational Licensing Board Antitrust Damages Relief and Reform Act of 2018.
In this Act:
The term certification means a voluntary program under which—
a private organization (in the case of private certification) or the government of a State (in the case of government certification) authorizes an individual who meets certain personal qualifications to use
certified as a designated title with respect to the performance of a lawful occupation; and
a noncertified individual may perform the lawful occupation for compensation but may not use the title
Member, officer, employee, or agent
The term member, officer, employee, or agent, with respect to an occupational licensing board, means an individual appointed by, to, or employed by the occupational licensing board.
The term occupational license means a nontransferable authorization under law for an individual to perform a lawful occupation for compensation based on meeting personal qualifications established by the State government.
Occupational licensing board
The term occupational licensing board or
board means an entity established under State law—
the express purpose of which is to regulate the personal qualifications required to engage in or practice a particular lawful occupation; and
that has authority conferred by State law to interpret or enforce the occupational regulations of the State.
The term occupational regulation—
means a statute, rule, regulation, practice, policy, or law that sets educational, examination, training and/or experience requirements to authorize an individual to work in a lawful occupation;
includes any statute, rule, regulation, practice, policy, or law requiring certification or an occupational license; and
does not include a business license, facility license, building permit, or zoning and land use regulation except to the extent that such a requirement or restriction substantially burdens an individual’s ability to work in a lawful occupation.
Widely regulated occupation
The term widely regulated occupation means an occupation in which forty (40) or more States require an occupational license to engage in such occupation.
The term State means each of the several States, the District of Columbia, and any territory or possession of the United States.
Private antitrust damages
No damages, or interest on damages, may be recovered under section 4, 4A or 4C of the Clayton Act (15 U.S.C. 15, 15a, or 15c) by any person, except for any State, instrumentality of a State, or employee of a State or instrumentality of a State acting in his or her official capacity, from an occupational licensing board, or any member, officer, employee, or agent of a board, acting in their official capacity, if—
has enacted a law requiring an occupational license to practice the lawful occupation regulated by the occupational licensing board;
has set forth criteria outlining any personal qualifications necessary to obtain an occupational license and has required that licensees adhere to standards of practice and ethical standards in the performance of regulated lawful occupations; and
has found that—
the public needs, and can be reasonably expected to benefit from, occupational licensing of the lawful occupation; and
the unlicensed conduct of the lawful occupation would harm or endanger the health, safety, or welfare of the public;
an occupation licensed by an occupational licensing board—
is a widely regulated occupation; or
is not a widely regulated occupation and the State has implemented a periodic sunset review process of the occupational licensing board with regard to that occupation; and (ii) if previously unregulated by the State, the State has implemented a sunrise review process of the occupational licensing board with regard to its regulation of that newly licensed occupation;
the chief executive, legislature, or other elected officer of the State—
has appointed all members of the occupational licensing board; and
has required public representation on the occupational licensing board; and
the State or the occupational licensing board has established a mechanism under which any person aggrieved by an action of the occupational licensing board has the right to—
contest such action at a hearing before the occupational licensing board at which the individual may provide evidence, argument, and analysis;
review, at a reasonable time before the hearing, all evidence that the occupational licensing board has gathered relating to the contested action;
receive a final reasoned decision in writing from the occupational licensing board within a reasonable period after the hearing; and
appeal an adverse decision of the occupational licensing board to an independent adjudicator, including judicial review.
This section shall not apply to any case commenced before the date of enactment of this Act, unless it would be inequitable not to apply this section to a pending action.
Rule of construction
Nothing in this Act shall be construed to modify or impair the applicability or availability of—
relief pursuant to section 4A or 4C of the Clayton Act (15 U.S.C. 15a, 15c);
injunctive relief pursuant to section 16 of the Clayton Act (15 U.S.C. 26);
equitable monetary or injunctive relief pursuant to section 13(b) of the Federal Trade Commission Act (15 U.S.C. 53(b)); or
the ability of any person to recover the cost of the suit, including a reasonable attorney’s fee, under section 4 of the Clayton Act (15 U.S.C. 15).
The immunity from damages, or interest on damages, that is provided to members, officers, employees, or agents of an occupational licensing board of a State under subsection (a) shall not apply to any action unrelated to their official capacity, such as implementing rules governing minimum prices or fees.
State licensing studies to be conducted
Not later than 120 days after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report on—
how States can best address occupational licensing reform, particularly for those occupations that are not directly related to protecting the health, safety, or welfare of the public, including recommendations on how States can weigh the costs and benefits of occupational licensing against those of less restrictive alternatives, such as certification and other approaches;
how States can conduct comprehensive cost-benefit assessments of occupational regulations and occupational licensing boards through sunrise reviews and periodic sunset reviews;
how States can implement policies to support occupational licensing uniformity and occupational license portability, including streamlined licensing portability programs for veterans and military service members and spouses; and
how occupational licensing requirements affect low-income workers, the unemployed, immigrants with work authorizations, and individuals with criminal records.
Rule of construction
Except as provided in section 3, nothing in this Act shall be construed to modify or impair the applicability or the enforcement of the antitrust laws, as defined in the first section of the Clayton Act (15 U.S.C. 12).