The Occupational Licensing Creep: 

Tennessee’s licensing regulations for shampoo techniques represent a small fraction of the laws governing the U.S. workforce.

According to a study released by the Obama administration in July, the percentage of the workforce covered by state licensing laws grew from less than 5 percent in the 1950s to 25 percent in 2008.

Two-thirds of that change is related to an increase in the number of professions that require a license, the report found.

The number of occupations requiring licenses across all 50 states range from a high of 71 in Louisiana to a low of 24 in Wyoming, according to a 2012 reportfrom the Institute for Justice, a public interest law firm.

The group found a couple of the most frequently licensed occupations are pest control applicators and emergency medical technicians, licensed in all 50 states and the District of Columbia. In contrast, forest workers and florists are licensed in just one state each.

Shampoo technicians, meanwhile, are licensed in four other states besides Tennessee: Alabama, Louisiana, New Hampshire, and Texas.

The White House, along with a bipartisan group of lawmakers on Capitol Hill, has started a push to encourage states to roll back occupational licensing laws, which this unofficial coalition argues make it difficult for workers to enter various fields and can hurt wages for those excluded.

“Licensure makes it really hard to try something,” Salim Furth, a research fellow in macroeconomics at The Heritage Foundation, told The Daily Signal. “If you’re committed to a career, it’s not that big of a barrier. But what if you want to try something, or you need some income while you’re in between jobs? Those kinds of workers, especially young workers, are being told you have to choose to make this a career. You can’t just try it out.”

Additionally, licenses rarely are recognized across state lines, which disproportionately affects military spouses.

In Tennessee, cosmetologists and barbers are regulated by the state Board of Cosmetology and Barber Examiners. The board is comprised of 14 members, and 12 of its members work in the cosmetology and barber industries, asrequired by law. The remaining two are members of the public.

The issue of state boards overseeing licensing requirements has been met with resistance, and economic experts warn that such boards often exist to block competitors from entering markets.

“You have a board of market participants passing anti-competitive legislation,” Boucek said of the Tennessee Board of Cosmetology and Barber Examiners.

Furth said state boards often begin to “creep” with the number of occupations they regulate.

“Once you get a board in place to do something that might have commonsense value, that board has an incentive to keep broadening their power and expanding things under their control,” Furth told The Daily Signal.

So far this year, state legislatures in Nebraska and New Jersey have passed legislation rolling back some of the regulations governing different occupations. Delaware’s governor, meanwhile, signed an executive order last month creating a committee to review licensing regulations.

Despite the action in state houses, Furth said the best chance for a permanent solution comes with how the courts are instructed to deal with economic freedom.

“We need to fundamentally change the way we think about economic freedom,” he said. “This is a basic right. This is a right to go into the marketplace, to truck, barter, and exchange. To work, to improve oneself. That’s a foundational human right, and any government that seeks to narrow or prescribe that should have to meet a high burden of proof.”

“It’s a general principle that who’s making the law here wasn’t the Tennessee Legislature saying we need to keep Americans safe from bad smelling shampoo,” Furth said. “It’s some board saying, ‘We can push down competition and push down wages by making it illegal to hire people.’”

Steep Penalties for Licensing Violations

The Tennessee Board of Cosmetology and Barber Examiners employs between 15 and 18 “field inspectors” hired to inspect barber and cosmetology schools and shops for proper sanitation and unlicensed activity. Under authority established by the board, its legal division has the power to issue consent orders for unlicensed activity.

For a salon worker caught without a license, the consequences can be costly.

In April 2014, for example, inspector Jerry Biddle entered a Memphis salon to conduct a “lawful inspection of the premises therein” and saw a manicurist shampooing a client’s hair, according to a report he filed with the state.

The manicurist didn’t have the license allowing her to shampoo hair, Biddle wrote in his notice of violation, and was therefore running afoul of Tennessee law.

Robert Herndon, a lawyer with the Tennessee Board of Cosmetology and Barber Examiners, sent the manicurist a letter regarding the violation and offered her a deal: pay a $250 penalty or face formal disciplinary charges and attend a hearing before an administrative law judge.

Disciplinary proceedings, Herndon continued, could result in up to $1,000 in fines and a loss of the manicurist’s license.

“There are floors in government buildings filled with people whose jobs are to [find unlicensed activity],” Boucek said. “Investigators who go out and police this stuff, people with law enforcement authority.”

Walters, of the state Department of Commerce and Insurance, said there currently aren’t any complaints filed against shampoo technicians.

A ‘Sense of Worth’

Over the course of her lifetime, Nutall estimates she’s taught thousands of women across the country her technique of hair braiding, including her sister, daughter, and granddaughter, Leanna.

Nutall said she became involved in the lawsuit because of the family members like Nutall-Pritchard and Malone who would love to open up their own natural hair care salons, just as she did more than 20 years ago.

“They just can’t because of the laws, which is crazy to me,” she said. “Everybody has a right to earn a living.”

For Nutall-Pritchard, she feels the government is hypocritical, particularly when it comes to the future successes of young women.

“They want to get these young women off welfare,” she said, “but how are they going to get off welfare when you’re making it so hard with a simple trade as shampooing?”

Regardless, Nutall holds out hope that the state will come around and make it easier for young women like her granddaughter to earn a good, honest living, just as she was able to do.

“I would like to see these young people able to braid hair or to shampoo hair or to cut hair, able to do this and then earn a living out of it,” she said. “Give them something to stabilize them. Give them a sense of worth. When you work for something, you’re more proud of it because it came from your own loins. You did this.”

This piece first appeared in The Daily Signal here. 

Image: Flickr/Creative Commons.