In the last few years, there has been a significant spike in the number of lawsuits challenging employer use of criminal background checks, including class action lawsuits brought under the federal FCRA. There also has been a sharp increase in the number of state and local “ban the box” laws. Employers must be mindful of the types of conviction and arrest records that are considered “off limits” at the state and local level. Given this hot litigation and legislative climate, many employers ask themselves whether to even screen their workforces and take on the burden of navigating through these murky waters. For those employers that do not conduct criminal background checks on their workforces, a recent Texas Court of Appeals decision highlights the importance of carefully determining whether an employer can justify a failure to screen workers based on the employer’s industry and the specific job duties at issue.

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