Expanded Background Check Access for Employee Screening

On December 12, 2024, a Notice of Proposed Rulemaking (NPRM) under Regulation Identifier Number 1110-AA35 was published in the Federal Register, officially kicking off a 30-day public comment period. This proposed rule will impact Federal Firearms License (FFL) holders by providing them with new tools to identify potential employees who may be prohibited persons under the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) regulations.  

This NPRM, mandated by the Bipartisan Safer Communities Act of 2022, is part of a broader effort to ensure that FFLs are able to conduct thorough background checks on both current and prospective employees. Let’s break down what this proposed change means for FFLs and what actions you should consider now to prepare.

Key Changes Under the Proposed Rule

Once the public comment period concludes, the final regulatory rule must be completed and published before FFLs can officially begin using the National Instant Criminal Background Check System (NICS) to screen employees. According to the FBI’s NICS Section, an estimated publication date for the final rule has yet to be established. However, some critical details about the proposed changes have already been outlined:

1. New Purpose Identification (Purpose ID) 57: This proposed rule introduces a new purpose ID, Purpose ID 57, specifically for background checks related to employment. This would allow FFLs to check whether a current or prospective employee qualifies as an ATF prohibited person.

2. Written Consent Requirement: Before conducting these NICS background checks, FFLs must obtain written consent from the employee or job candidate. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will release a form to help FFLs meet this requirement.

3. NICS E-Check for Screening: While the service is not yet available, the FBI suggests that FFLs will be able to use NICS E-Check to run these checks when the system goes live. FBI NICS has also emphasized that registration for the NICS E-Check is already available for those who aren’t currently users.

What Does This Mean for FFLs?

For Federal Firearms License holders, this NPRM could significantly expand your employment screening tools. Here’s how it could impact your operations:

• Screening New Hires: You’ll be able to use NICS background checks to ensure that new employees aren’t prohibited persons under federal law.

• Ongoing Employee Monitoring: The rule will allow you to review the status of current employees to make sure they remain compliant with legal standards throughout their employment.

• Risk Mitigation: By proactively identifying and mitigating risks associated with prohibited individuals, FFLs can ensure that they’re maintaining a safe, legal, and compliant workplace.

Compliance Considerations for FFLs

While the proposed rule offers a new tool for FFLs, it’s important to remember that state-specific laws may impose additional restrictions or requirements. Be sure to consider the following:

• State Laws on Background Checks: Some states restrict employer access to criminal background information, and may require specific permissions before conducting a background check or limit the type of information available.

• Ban-the-Box Laws: In certain jurisdictions, laws known as “ban-the-box” may impose rules on how and when background checks can be conducted during the hiring process, including when employers can inquire about an applicant’s criminal history.

As a result, FFLs will need to navigate not only federal guidelines but also state-specific regulations to ensure they are in full compliance when using the new NICS background check system for employees.

What Can FFLs Do Now?

To ensure a smooth transition once the rule is finalized, FFLs should take a few steps now:

1. Consult with Experts: FFLs should consult with regulatory specialists, legal counsel, or human resources professionals to understand the intersection of state and federal laws. Navigating these complexities early on can help prevent any compliance issues down the line.

2. Register for NICS E-Check: If you haven’t already, FBI NICS encourages FFLs to register for NICS E-Check at www.nicsezcheckfbi.gov. This will prepare you for the new system and ensure you’re ready to conduct background checks as soon as the rule is enacted.  This will prepare you for the new system and ensure you’re ready to conduct background checks as soon as the rule is enacted. 

Ready to Navigate the Changes?

At BSP, our compliance team is ready to help you integrate these new resources into your operations. If you have questions about how the new NICS background checks will affect your hiring and employee screening processes, reach out to us today for guidance.

With these changes coming down the pipeline, taking the necessary steps now to understand and prepare for them will ensure your business stays compliant and ahead of the curve. Contact us today to get started.

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