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 York, prospective employers must navigate the delicate situation of reference checks with caution. Contacting a current employer without an applicant's consent can lead to negative consequences for the applicant, such as termination, and may also harm the prospective employer's reputation and legal standing. However, it is permissible for prospective employers to contact an applicant's former employer or other references. When providing information, former employers or references are allowed to share truthful facts and their opinions about the applicant. They must avoid making false statements, 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 ensure that any information shared during the reference check process is accurate and truthful to avoid legal repercussions.