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 Hawaii, as in many states, prospective employers must navigate the delicate situation of seeking information about job applicants without causing harm to the applicant's current employment status. It is generally considered risky and potentially harmful to contact an applicant's current employer without explicit permission, as it could lead to the applicant being fired or facing other negative consequences. However, prospective employers are allowed to contact an applicant's former employers or other references. When providing information, former employers or references are expected to share truthful facts and their opinions about the applicant. They must avoid making false statements that could be proven untrue, as doing so could result in liability for defamation, which includes both slander (spoken false statements) and libel (written false statements). It is important for all parties to handle such communications with care to avoid legal repercussions and maintain professional integrity.