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 Washington state, 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 harm to the applicant and to avoid potential liability for the prospective employer. However, reaching out to an applicant's former employer or other references is permissible. These parties are allowed to share truthful facts and their opinions about the applicant. It is important to note that former employers and references must avoid making false statements about the applicant. If they do make statements that are provably false, they could be held liable for defamation, which includes both slander (spoken false statements) and libel (written false statements). Employers and references should therefore ensure that any information they provide about an applicant is accurate and truthful to avoid legal repercussions.