February 24, 2016
Employee Background Checks — Yes, You Should
During our FFL compliance visits, we are often asked about how to determine if the members of the store team are prohibited from being inactive or constructive possession of firearms. In this article, we will explore three components you may want to consider adding to your store’s employee background check program that can help with such determinations. Please note that these ideas are not offered as legal advice. Prior to starting or updating your background check program, it is recommended you partner with your human resources professional and legal counsel.
Put it in Writing
What is your company policy regarding employee background checks? Specifically, what are required notifications to management if an employee becomes prohibited from active or constructive possession of firearms? It can happen, an employee could become prohibited after an initial check has taken place. Just as an example, an employee could be charged with domestic violence by the police after they leave work for the day, so what would that mean for your business and that employee?
There should be wording in your policy that says any employee who becomes prohibited to possess a firearm for any reason must notify management within 24 hours and not come into possession of firearms for company business. Make it easy to comply and take the prohibited person wording right off the ATF Form 4473, Section A, question 11.
In doing so, though, consider whether you find another spot in your store for someone prohibited where they do not have actual or constructive possession of a firearm if they become prohibited.
If They Touch it, There Should be a Background Check
Be sure to conduct a background check to include anyone who may be in possession of firearms in your store. This could be the person receiving, anyone with keys or combinations to the firearms vault or showcases, gunsmiths, salespeople, etc. If you have a question about what might include “constructive” possession, it is recommended you contact your local ATF office or your counsel.
More Than Once
Checking once is not enough. You should have all employees sign on an annual basis an acknowledgment they have not become prohibited. You may also want to conduct annual background checks.
It should go without saying that whatever policy you create, all members of your team should be instructed on how the policy works. An annual review of such store policies with staff is also recommended, and having a point person your staff can go to with questions regarding background check policies and their rights as an employee is also a sound practice.
The Background Checkers
There are various methods for performing background checks that FFLs have shared over the years with our team. Some of the “advice” we’ve heard has included:
“I make the new employee buy a gun on day one and if they pass the NICS check that is good enough for me.”
“We have the new employee get a concealed carry permit. and if they pass that check we are satisfied.”
“I have known all my employees all their lives and they don’t need a background check.”
“My buddy is the sheriff and he would tell me if one of my people got locked up.”
Companies do have an obligation to learn as much as they can and are legally entitled to about the candidates they are evaluating for hire. In fact, it is a business’ duty to ensure a potential hire does not have an adverse history that could potentially harm a business or pose a safety risk to employees and clients. But while NSSF’s Compliance team members have heard all of those statements just listed above, none should be considered a replacement for a comprehensive background check. Basing a decision on belief or perception alone exposes a company to many forms of risk, including lawsuits and negligent hiring liability. Additionally, one service that is specifically not recommended for use is the NICS system for employee background checks. As a reminder, you may use the NICS or POC state background check system only for a firearms transaction. The following excerpt from the FBI NICS Licensee Manual emphasizes that there can be serious consequences for anyone choosing to ignore the warning.
II. Unauthorized Use — An FFL is never authorized to utilize the NICS for employment or other type of non-Brady Act-mandated background checks. An FFL must have a signed ATF Form 4473 prior to initiating a NICS check. Per 28, C.F.R. §25.11 of the NICS Regulations, accessing or using the NICS, or permitting access to or use of the NICS by another, for any unauthorized purpose is a violation of federal law, sanctions for which may include criminal prosecution, a civil fine not to exceed $10,000, and/or cancellation of the NICS inquiry privileges.
Since utilizing the NICS for employee background checks is prohibited, that means you will want to find a background check vendor that is both an expert at conducting thorough checks and disseminating the information discovered for your use, while also protecting the rights of the employee. One provider you should consider is IntelliCorp. Accredited by the National Association of Professional Background Screeners (NAPBS), IntelliCorp offers discounted pricing, validated criminal searches, screening packages, personalized support, training and compliance. The company is also an NSSF Members Benefit Affiliate company. NSSF members can log in to the members-only side of nssf.org, then navigate to the list of benefit companies and the list of services and discounts they provide.
Fair Credit Reporting Act
As an employer, if you plan to conduct a background check on a potential new hire or existing employee or obtain any “consumer report” (e.g.., criminal and civil records, credit reports, driving records) to screen workers for employment purposes you should be mindful of the Fair Credit Reporting Act (FCRA). The FCRA and, possibly, state consumer privacy laws may be triggered if an employer makes an adverse or unfavorable decision based in whole or in part on information found in a background check or other consumer report pertaining to the applicant or employee. Furthermore, the employer must provide certain pre-and post-notice and information to the job applicant or employee. It would be wise to consult with your attorney if such a circumstance arises.