Hawaii has the most burdensome occupational licensing laws in the country, according to a public interest law firm based in Arlington, Virginia.
Jessica Poitras, an attorney with the Institute for Justice, explained on this week’s episode of “Hawaii Together” that not only does Hawaii license more jobs than most states, it also requires more “fees and the exams and things like that” before the applicants can begin working — as detailed in the organization’s new report, “License to Work.”
Hosted on the program by Grassroot Institute of Hawaii Executive Vice President Joe Kent, Poitras said such requirements are hard on low-income individuals who do not have the time or money to spend jumping through numerous legal hoops.
Poitras, co-author of a commentary on the issue in last week’s Honolulu Star-Advertiser, said she was especially concerned about the effect of licensing on niche beauty services such as natural hair braiding that aren’t even taught in cosmetology schools and don’t involve the use of chemicals, dyes or mechanical devices.
Poitras told Kent that Hawaii’s own state auditor’s office has studied the issue five times since 1980 and continues to conclude that licenses for cosmetologists and barbers are unnecessary, yet Hawaii “legislators haven’t moved and taken that recommendation to try to reform the system to allow individuals to be able to work.”
Meanwhile, across the rest of the country, Poitras said, there has been about a 20% decrease in licensing over the past few years.
“I think that’s because, you know, …the Obama administration, the Trump administration and the Biden administration [have all] called for states to really take a look at occupational licensing and [have] really highlighted it as a barrier for workers across the country.”
Poitras said licensing laws are “not actually making anyone safer,” and that reducing the barriers to entry for these professions is “a great way for states to really address worker-shortage issues and workforce issues.”
She said anyone needing help dealing with burdensome licensing laws can reach out to the Institute for Justice.
“Let us help you to work on bills and legislation to remove those licenses that are burdensome,” she said. “You know, sometimes I think that legislators just aren’t aware of the issues that come with licensing. And so, making sure that your voices are heard, … having that evidence there, that’s the best way to start breaking down those barriers.”
To hear the entire interview, click on the video below. A complete transcript follows.
12-6-2022 Jessica Poitras with Joe Kent on “Hawaii Together”
Joe Kent: Aloha and welcome to “Hawaii Together” on the ThinkTech Hawaii broadcast network.
I’m your host, Joe Kent, executive vice president of the Grassroot Institute of Hawaii, filling in this week for Keliʻi Akina.
My guest today is Jessica Poitras. She’s an attorney with the Institute for Justice, which is a public interest law firm based in Arlington, Virginia.
Jessica recently co-authored an op-ed in the Honolulu Star-Advertiser that put a spotlight on Hawaii’s occupational licensing laws, and Jessica believes these laws need to be changed, especially as they apply to natural hair braiders and barbers, and she’s here to explain why.
So, thanks so much for talking with me today, Jessica.
Jessica Poitras: Of course. Thank you so much for having me. Happy to be here.
Kent: Well, first a little bit about your background and where you work.
So, how did you come to work at the Institute for Justice, and what does the organization do?
Poitras: Of course. So, the Institute for Justice is a national public interest law firm that works to end government abuses and overreach.
So, after I graduated from law school, I knew that I wanted to work in the nonprofit sector. I wanted to help people using my law degree, and I’ve always had a passion for the beauty industry as a consumer and someone who holds, you know, cosmetologists and barbers and the entire industry in high regard.
So, when I had this opportunity to be able to work with the Institute for Justice to break down barriers for these entrepreneurs, I jumped at the chance, and I’ve been here ever since.
Kent: That’s wonderful to hear someone passionate about that work. It’s a really important work.
But many of our listeners might not be familiar, exactly, with what is occupational licensing, so could you explain what that is?
Poitras: Sure. So, occupational licensing is the fancy term for a government permission slip to allow people to work.
So most professions require a government paper or some sort of sign-off to be able to work. So, think of lawyers, the — your bar license. For cosmetologists, a cosmetology license. Things of that nature.
Kent: So, what kind of occupations does the state of Hawaii require a license for?
Poitras: Of course.
So, Hawaii — it has some of the most burdensome occupational licenses in the country, and it actually licenses, you know, many, many different professions, so ranging from painters to cosmetologists and to individuals in the construction trade.
In fact, out of the 102 licenses that we studied in “License to Work,” Hawaii licenses 64 of them.
Kent: Wow. So that’s among the highest — it’s among the highest in the nation, is that right? And one of the most burdensome, is that right?
Poitras: Exactly. So, Louisiana licenses the most occupations out of all of the states, but Hawaii’s licenses still rank as the most burdensome in the country.
And that’s mainly because occupational licenses require other things that you don’t necessarily see. So, the fees and the exams and things like that are the high barriers that individuals who want to work have to overcome first before they’re even able to first start working in their desired profession.
Kent: Oh, I see.
So, Hawaii’s occupational licensing requirements just have a lot of requirements in them. You have to work for longer than any other state and pay more fees than any other state and so on. So …
Poitras: That’s exactly right.
Kent: Well now, what was the justification behind that, though? Why would they pass laws like that?
Poitras: So, you know, it really depends.
And I don’t — I certainly don’t want to speak for, you know, the legislators in Hawaii, but, you know, the entrenched interests of certain groups really want to ensure that other people do not enter into their field, and a great way to do that is to erect high barriers to entry.
So, for example, Hawaii requires an average of 972 days for education and training before they — before individuals can start working for those licenses, where the national average is about 350.
So, the justifications, you know, it’s hard to square that, given the fact that it’s more than double what the national average is.
Kent: I see. So, a lot of it is just protectionism — trying to keep the other competitors out of your industry. And so, if the licensing requirements are higher, then the barrier to entry into those jobs [is] harder.
But what about the supposed justification? I mean, they have to — they’re not passing laws or justifying this on those grounds, right? So what are they saying they want the laws for?
Poitras: Well, it really depends.
And again, with the wide breadth of occupations, it’s hard to kind of generally figure, or to generalize exactly what legislators deem licenses necessary for.
But for some of the licenses, health and sanitation concerns or being able to, you know, regulate the amount of individuals in the space, that sort of thing.
Kent: I see. So, when it comes to, let’s take safety, for example.
I mean, that’s one you just think of is we need licenses to keep people safe. We need occupational licenses so that my painter doesn’t fall off the ladder or damage my property or something.
So, assuming that’s the justification, are licenses successful in that?
Poitras: So, no, not typically, right? So, licenses don’t necessarily make certain professions safer.
And we see that, especially when you compare some careers and fields that are more directly related to safety, like EMTs, versus those that aren’t, like cosmetologists.
So Hawaii actually, in fact, lowered the education and training requirement for EMTs but maintains the high barrier to entry for cosmetologists, including braiders, where there’s very little, and it’s very rare, for health and sanitation items, or issues, to occur.
Kent: I see.
Poitras: So licensing doesn’t necessarily protect safety, and there are definitely better alternatives to fixing that issue than licensing.
Kent: I see. And so licensing may not help, but does it hurt?
Have you ever come across any research that shows that occupational licensing actually gets in the way of health and safety and some of the goals that they want?
Poitras: So, you know, by keeping skilled professionals out and requiring licenses sometimes for things that aren’t directly attributed to those professions, that could certainly harm or create a cause for harm for licensing.
So, think of a profession like eyelash technicians, right? Eyelash technicians have private certification that proves their training, and they should have that training in order to safely provide their services.
However, you know, currently in Hawaii, there’s no requirement or there’s nothing that says that you need specific eyelash training. What you need is some sort of cosmetology license, where they don’t even teach eyelash training.
So, aesthetics professionals can go and buy those products and, you know, become eyelash techs without that specialized training, and that could, you know, create some sort of potential health and sanitation risk.
Kent: I see. Well, and a lot of it just doesn’t make sense.
And you recently co-authored a column in the Honolulu Star-Advertiser, and in it you argued that the state should, quote: “Repeal all barbering and cosmetology licensing.”
Now, could you explain that?
So, Hawaii’s state auditor has studied the beauty industry five times since 1980, and each time the licenses — they found the licenses for cosmetologists and barbers are unnecessary.
And so, you know, I think that is a very clear example of the fact that, you know, the state auditor has found that these licenses aren’t required, they aren’t necessary, but legislators haven’t moved and taken that recommendation to try to reform the system to allow individuals to be able to work.
Kent: I see. And what would repealing those licenses do? How would that help?
Poitras: Of course. So, by repealing those licenses, especially for niche beauty service providers, that would allow people to enter into the field without having to undergo state-mandated training requirements.
So, right now, cosmetologists, niche beauty service providers, things like that, they’re required to go to certain cosmetology training programs where many of them accrue student debt and spend lots and lots of time unrelated to the actual profession that they want to be able to work in.
And so, again, there are alternatives to regulating this space. A cosmetology license doesn’t necessarily fit.
What would fit, perhaps, would be facility inspections, right? So if the goal is to, you know, really ensure health and sanitation and to make sure that the public’s safe that way, facility inspections are the best way to regulate the industry and make sure that there aren’t bad actors.
Kent: I see. Well, when we were talking about this issue with our audience — we have a newsletter on the Grassroot Institute of Hawaii website, and thousands of people read our stuff — and we were pointing to your article and talking about this, and we got a lot of comments.
One person wrote, “I have a friend that this restriction harms.” She said, “Why do our legislators spend more time trying to suppress local small business than support it?”
Someone on TikTok — which, if you go to @oahujoe on TikTok, you’ll see some licensing content there — and she said, “I was literally just talking about transferring my cosmetology license, and it’s a hassle too.”
And so, a lot — this affects a lot of people on the ground here in Hawaii. What would you say to those people?
Poitras: Well, what I would say to those people is: One, get in contact with us. Let us help you to work on bills and legislation to remove those licenses that are burdensome.
You know, sometimes I think that legislators just aren’t aware of the issues that come with licensing. And so, making sure that your voices are heard, especially with licenses that don’t exist in other states. Having that evidence there — that’s the best way to start breaking down those barriers.
And there’s a lot of good reasoning and support behind that, so …
Kent: Good. Well, another of our readers said that she disagreed with us. She said licensing is a tool to protect the public. So, what would you say to her?
And also, you know, for the sake of argument, how would you respond to someone who says that it’s cosmetology licenses in particular [that] help protect people from untrained beauticians?
Poitras: Right. So, first and foremost, with cosmetologists and the cosmetology industry and generally for small businesses and entrepreneurs, we say unlicensed doesn’t mean untrained, right?
These individuals are trained, they’re skilled, especially if they’re working in the space, especially if they’re starting their own businesses. Those are the people that these bills are working to support.
And, you know, I think we would have to have an honest conversation as to what licenses you’re talking about. Especially in the beauty industry, for these niche beauty services like hair braiding or makeup artistry, there is very little evidence — and it’s exceedingly rare — that individuals cause health and sanitation problems.
What we actually find, in fact, is that most of the enforcement actions that happen to these niche beauty service providers — so think hair braiders, think eyebrow threaders — actually comes from them not having a license, not actually harming anyone.
And so, I think that’s indicative of the fact that, you know, people want to ensure that people have a license, but it’s not actually making anyone safer because these individuals aren’t harming anyone.
Kent: OK. But how would you deal with market quality?
OK, so, now we repeal all of these occupational licenses for beauticians and cosmetologists, and all of a sudden the quality drops on the market. You might not be really happy with the service that you get.
So, how would you deal with that argument?
Poitras: Right. So, first and foremost, the research shows that removing licenses doesn’t actually lower the quality of service in the market space.
In fact, it usually raises the quality just because there are more service providers and people have a wider breadth of individuals to choose from, especially in the beauty industry.
And so, you know, I think it really comes down to exactly [is], what you know, what skill are you looking for, what are you trying to get at?
And also, the market doesn’t necessarily — the way that individuals choose providers doesn’t necessarily change whether or not there’s a license that exists.
Even now for regulated, licensed occupations, individuals choose to find their providers through word of mouth, reputation, online reviews like Yelp and Google. That’s where the market, that’s where consumers go to look for qualified individuals. Very few people are checking to see if their painters have a license.
Kent: That’s true. We look to Yelp, not the government, a lot of times when we’re trying to find the best place for service.
But I want to talk about your new report at the Institute for Justice, “License to Work,” and this is version three of this.
We’ve been following this for many years, it’s been really helpful. But this third version looks at reforms also that states have been putting in.
Some states have been increasing licensing requirements, other states have been getting rid of them. But on net, are we going for more licensing or less [laughs] — fewer?
Poitras: Of course, so, as you mentioned, this is our third edition of “License to Work,” and it’s an updated snapshot of licensings’ extent and burden by cataloging state licensing requirements for, again, 102 lower-income occupations across all 50 states.
And this edition includes Puerto Rico and a “compare states” feature. So, if you’re interested, you can go to the website and compare Hawaii versus any of the 50 states and Puerto Rico, which is really, really interesting.
But to answer your second question, you know, on the whole, we’ve seen about a 20% decrease in licensing across the country overall.
And I think that’s because, you know, both political administrations — so the Obama administration, the Trump administration and the Biden administration — [have] called for states to really take a look at occupational licensing and [have] really highlighted it as a barrier for workers across the country.
So, for the most part, we’ve seen a decrease. But that doesn’t mean that there isn’t work to do, because there certainly is.
Kent: I see. Would you say that this issue cuts across partisan lines or is it a partisan — it’s kind of a local issue, wouldn’t you say?
Poitras: Yeah, it’s a state-by-state issue, and it really shouldn’t be partisan, and we find that it often isn’t, because there are interests for everyone, right?
I think all states, including Hawaii, are interested in bringing people to their state, making their state open to work, creating opportunities for current citizens, and that’s what occupational licensing [reform] does.
I always like to add and specifically highlight some of the states that have enacted great cosmetology licensing reforms.
Like Minnesota in 2020, when they removed the requirement for makeup artists and hair stylists to have a full cosmetology license, there was literally a thousand new individuals who were able to register with the state to be able to start working in that space.
Also in Arkansas, when it passed its shampooer and blow dry bar … exemption bill, the first blow dry bar in the state opened up.
So that is concrete proof that when you remove these barriers, individuals see the opportunity, they come, and they want to build, and they want to work. So, there’s definitely …
Kent: I’m embarrassed to say I don’t know what a blow dry bar is.
Poitras: That is OK. So, a blow dry bar is essentially a place where individuals can go get their hair washed, shampooed, dried and have their hair arranged.
So, there’s no cutting, there’s no coloring, there’s no dyes, there’s no chemical processes happening, and it’s just this booming industry. But most states require the individuals who just want to provide those services to have a full cosmetology license, which is absolutely ridiculous.
And so, by removing that barrier, it allows, you know, these businesses to open up, it supports industries like, you know, the wedding industry that wholeheartedly relies on independent makeup artists and hairstylists, as well as the entertainment industry.
So it’s really, you know, a win-win for everyone.
Kent: Going back to that Hawaii auditor study you mentioned about, one study earlier this year recommended against mandating licenses for community health workers.
So, in prior studies, does the auditor usually recommend against licensing? Like in Hawaii, in Hawaii’s state auditor reports, do we usually recommend against licensing?
Poitras: So, I’m not terribly familiar with most of Hawaii’s state auditor’s reports when it comes to occupational licensing, but I will, you know, add: If they’ve done the research, if they’ve reviewed the licenses and they’ve actually taken a look at the needs and that’s the outcome that they’ve come to, I think legislators should listen and should react to those findings.
Kent: Other than completely abolishing mandatory licensings, what reforms would you suggest to improve it?
Poitras: Of course. So, first and foremost, exemptions for niche and safe occupations should be first, right?
So, in the cosmetology space, again, we are huge proponents of niche beauty exemptions.
So, niche beauty services are services that are safe because they don’t use dangerous chemicals or dyes, and they don’t use dangerous mechanical devices, either. So, we’re talking about eyebrow threading, makeup artistry, hair braiding, blow dry styling — that sort of thing.
All of those sorts of services should be exempted from state licensure because there’s very little evidence — and it’s exceedingly rare, again — that there’s any justification for those licenses because individuals can provide them safely, and they’re not typically taught in cosmetology programs.
But if, you know, there is a demonstrated need for government regulation, there’s a whole slew of alternatives for regulating these spaces.
So again, inspections — that is, that’s the next kind of step, right? So ensuring that the government has the ability to inspect facilities for health and sanitation concerns. Or things like mandated insurance, for liability purposes, for bonds and insurance for fields where that makes sense, right?
And so, you know, there are many alternatives, and licensing shouldn’t be the first stop. It should really be the last.
Kent: And can you talk about professional certification — how is that different than mandatory licensing?
Poitras: Of course. So, private certification and professional certification are choices that an individual can make for their education.
We are huge proponents of private certification. It’s a great way to learn your craft and to be able to get your foot in the door.
The difference between a license and private certification is a license is mandated to be able to work, and it doesn’t — and the education requirement doesn’t necessarily go toward exactly what you’re, you know, the service or the field that you’re trying to offer.
So private certification is something that you get to choose. You get to choose where it’s done. And, you know, I liken it to kind of like a college degree, right? That is where you should hold your value.
So, I hold my value in my law degree. I think, you know, cosmetologists or chefs, for instance — that’s another great example — holding value in that education, that private certification is what we advocate for.
Kent: I see. Now, another comment that came in when we were talking about your work is someone said, “What about physicians licensed to practice in other states not having reciprocity here in Hawaii? [Is that] a barrier and a cause of fewer specialists?”
So, what would you say to that issue?
Hawaii has a severe shortage of healthcare professionals, and maybe some of the professionals on the mainland could practice here, except occupational licensing gets in the way.
So, how would you make that easier?
Poitras: Of course. So, I think recognition is the best way to do that, right?
Allowing — legislators allowing — Hawaii to recognize the training and the licenses of healthcare professionals in other states when they move in to Hawaii would be the best way to do that.
Kent: Now, how would you — what’s the difference? You said recognition, and I’ve heard reciprocity, but what are those two — what’s the difference between those two terms?
Poitras: Sure, of course.
So, recognition is something that Hawaii can do on its own. Hawaii can recognize a license, it can evaluate the license and accept the license on its own.
Reciprocity or state compacts would require Hawaii to enter into agreements with other states and to create a, quite frankly, like a compact across states, in order that individuals would have to meet in order to be able to freely move within those states. So …
Kent: Oh, I see.
Poitras: Exactly. So recognition retains Hawaii’s autonomy in this occupational licensing.
Kent: I see.
So, for recognition, we wouldn’t need to — the cumbersome step of trying to agree on a complicated compact with the collection of other states, we could just recognize the licenses in other states and recognize them as professionals in their fields and able to work here.
Is that right?
Poitras: Exactly. And it’s something that legislators could immediately do to ameliorate and to fix the worker shortage problems, right?
Compacts take a lot longer of a time and a lot more negotiations with different state governments, and so you wouldn’t see the effects of it as quickly as recognition.
Kent: Now, when you look across the nation at this issue, especially those places that have had successes when it comes to reducing occupational licensing requirements, what are some of the stories you’ve seen?
And we only have one minute left here, by the way.
Poitras: Of course. So I — we’ll — end on a happy note.
Most of the results that we’ve seen have been success stories, right?
So again, when you lower these barriers, jobs and opportunities, you know, become available and are abound, and people can immediately take those opportunities.
So, it’s a great way for states to really address worker shortage issues and workforce issues.
Kent: That’s great. Well, hopefully we can adopt some of those things that have worked here and help our economy and help folks find a job.
So, thanks so much, Jessica Poitras, for joining us today. Jessica, again, is the attorney with the Institute for Justice.
Poitras: Thank you so much for having me.
Kent: Thanks so much, aloha.
And thanks so much to you, our viewers, for watching another episode of “Hawaii Together.” Until next time, aloha.