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 Wyoming, 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. This is not regulated by a specific statute in Wyoming, but it is a common professional courtesy and a matter of privacy. However, prospective employers are permitted to contact an applicant's former employers or references. When providing information about an applicant, former employers or references are legally allowed to share truthful facts and their opinions. They must avoid making false statements that could be considered defamatory. Defamation, which includes both slander (spoken) and libel (written), involves making a false statement that harms someone's reputation. If a former employer or reference makes a provably false statement of fact about an applicant, they could be held liable for defamation under Wyoming law. It is important for all parties to ensure that any information shared during the reference or background check process is accurate and truthful to avoid legal consequences.