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July 12, 2017

ATF Q&A: Operations


I would like some clarification concerning employee eligibility/background checks.  There seems to be a lot of gray area in the regulations specifically, Section 478.32, concerning whom we can hire. We always do background checks (always post-offer, in accordance with the law) and always operate with a great deal of caution, but we dont want to be overly exclusive of people with pasts. Clarification of specific rulings, examples and such from the ATF would be helpful.

There are no federal laws or regulations that require an FFL to run background checks on employees, and you are prohibited from using NICS to conduct a background check on an employee unless you are disposing of a firearm to the employee. However, if you learn, as a result of running a background check or otherwise, that one of your employees is prohibited from possessing or receiving firearms, you must not allow this prohibited person to receive or possess firearms. Doing so would be a felony.

If you are unable to determine whether a criminal conviction or other event has made a person prohibited from possessing or receiving firearms, we recommend that you contact your local ATF Area Office for further guidance. You can find contact information for your local ATF Area Office at atf.gov under the heading Field Divisions.

NSSF Note: The Fair Credit Reporting Act (FCRA) and, possibly, state consumer privacy laws, can become relevant if an employer takes an adverse employment action, such as firing or refusing to hire or promote based on a background check (e.g., hiring a firm to conduct a background check or running a credit history report). Under the FCRA, the employer must provide certain pre- and post-notice and information to the job applicant or employee. As noted above, you can only run a NICS background check when transferring a firearm, not for the sole purpose of screening current or prospective employees. However, a lawfully conducted NICS check, which could potentially result in your learning that an employee is a prohibited person, does not trigger the FCRA or other privacy laws. Before putting in place employee-screening procedures, consult with your attorney