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 North Carolina, 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 without explicit permission, as this could lead to the applicant's termination or other negative consequences. 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 this could lead to liability for defamation, which includes both slander (spoken false statements) and libel (written false statements). Defamation claims require that the statements made were false, communicated to a third party, and caused harm to the applicant's reputation or other damages. North Carolina law, like that of many states, provides a qualified privilege to employers that give references, which can protect them from defamation claims as long as they act in good faith and without malice.