When a job applicant applies or interviews for a new job the prospective employer would often like to speak to the applicant’s current or former employer. But if the employee is still employed the prospective employer will likely cause the applicant to be fired or terminated by contacting the current employer and informing them the applicant is applying for a new job. A prospective employer interviewing an applicant might also expose itself to liability by contacting the applicant’s current employer—as well as damaging its reputation and ability to attract other qualified job applicants.

But a prospective employer may contact the former employer (or other reference) of an applicant. And the former employer (or reference person) may freely state truthful facts about the applicant—or state the former employer or reference’s opinion of the applicant—but cannot make false or untruthful statements of fact about the applicant. If a former employer or applicant makes false or untruthful statements of fact—statements that are provably false—the former employer or reference may be subject to liability for defamation (slander or libel).

In Alabama, prospective employers must exercise caution when contacting an applicant's current employer due to the risk of causing the applicant to lose their job. It is generally considered inappropriate for a prospective employer to contact a current employer without the applicant's explicit consent. However, contacting a former employer or other references is permissible. Former employers or references can legally share truthful facts and their opinions about the applicant. They must avoid making false statements, as doing so could lead to liability for defamation, which includes both slander (spoken defamation) and libel (written defamation). Defamation requires that the statement is false, made to a third party, and causes damage to the applicant's reputation. In Alabama, as in other states, truth is a defense to defamation, so former employers and references are protected from liability if their statements about the applicant are true and made without malice.