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 Texas, 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 for a prospective employer to contact an applicant's current employer, as this could lead to the applicant's termination and potentially expose the prospective employer to liability, as well as harm its reputation and future hiring prospects. However, contacting a former employer or other references is permissible. When providing information about an applicant, former employers or references are allowed to share truthful facts and their opinions. They must be careful not to make false statements, as doing so could result in a defamation lawsuit, which encompasses both slander (spoken defamation) and libel (written defamation). Texas law requires that any defamatory statements must be provably false to constitute defamation, and the person making the statements could be held liable if they damage the applicant's reputation or career.
