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 California, prospective employers must navigate the delicate situation of reference checks with caution. Contacting a job applicant's current employer can lead to unintended consequences, such as the applicant being terminated from their current job. This practice is generally avoided to prevent causing harm to the applicant's employment status and to avoid potential liability for the prospective employer. However, it is permissible for prospective employers to contact an applicant's former employers or other references. When providing information about an applicant, former employers or references are allowed to share truthful facts and their opinions. They must be careful not to make false statements, as doing so could result in a defamation claim against them. Defamation includes both slander (spoken false statements) and libel (written false statements). In California, the truth is a defense to defamation, so as long as the former employer or reference is truthful, they would typically be shielded from liability.