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 New Mexico, as in many states, there is a general understanding that prospective employers should exercise caution when contacting an applicant's current employer due to the potential risk of causing the applicant to lose their job. It is common practice for prospective employers to wait until an offer is made or permission is granted before reaching out to a current employer. However, contacting a former employer is generally acceptable. Former employers are allowed to share truthful facts and their opinions about the applicant, but they must avoid making false statements that could be considered defamatory. Defamation, which includes both slander (spoken) and libel (written), involves making false statements that harm someone's reputation. If a former employer or reference makes provably false statements about an applicant, they could be held liable for defamation. It is important for all parties to communicate honestly and responsibly to avoid legal repercussions.