ASLA Supports Federal Legislation to Protect State Licensing Boards from Antitrust Damages

On July 25, 2018, U.S. Representative Mike Conaway (TX) introduced the Occupational Licensing Board Antitrust Damages Relief and Reform Act (H.R. 6515) and has been referred to the House Judiciary Committee and the House Committee on Education and the Workforce. ASLA supports the introduction of this legislation.  

H.R. 6515 would protect state boards, board members, and staffs from private antitrust damage awards in exchange for states agreeing to evaluate the need for occupational licenses against a stated set of criteria. The purpose of this legislation is to address the practical antitrust law implications for state professional and occupational licensing boards affected by the Supreme Court's 2015 decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission.

In 2015, the U.S. Supreme Court ruled (6-3) that the North Carolina Dental Board was not entitled to “state action” immunity from antitrust laws because its actions were not actively supervised by the state. Prior to the Supreme Court ruling, state licensing boards were considered actors of the state and were not subject to liability under federal antitrust laws, so long as their actions were taken in accordance with state policy. The consequence of this decision has left state professional and occupational licensing boards, board members, board staff, and the taxpayers in a state of fiscal uncertainty and vulnerability. The passage of H.R. 6515 would help ensure that members of state regulatory boards are not deterred from serving because of the potential for personal financial liability related to their public service.

“State licensing boards provide an invaluable service to the state,” said Rep. Conaway. “Individuals who serve on these boards should enjoy the same legal protections for working on behalf of the state as all other state officials do. Having served on the Texas State Board of Accountancy myself, I understand that serving on a licensing board is performing an important public service. This legislation ensures that members of state licensing boards will continue to serve the state without fear of personal liability.” 

H.R. 6515 was drafted by the Professional Licensing Coalition (PLC), in which ASLA participates. In addition to shielding state boards, board members, and their staff members from damage awards, the legislation also calls for a study by the United States General Accounting Office that would evaluate how states best address occupational licensing reform; the use of cost-benefit assessments in sunrise and sunset reviews; the implementation of policies to support licensing portability; and how occupational licensing requirements affect low-income workers and other populations.

    ASLA, in coordination with the PLC, is pursuing the passage of this legislation in order to ensure Landscape Architects are personally protected while engaged in public service.

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