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 Ohio, prospective employers must navigate the delicate situation of seeking information about job applicants without causing harm to the applicant's current employment status. Contacting an applicant's current employer can lead to the applicant's termination, which is why this practice is generally avoided to prevent potential liability and reputational harm. However, prospective employers are permitted to contact an applicant's former employers or references. When providing information, former employers or references are allowed to share truthful facts and opinions about the applicant. They must be careful not to make false statements, as doing so could result in a defamation claim against them. Defamation includes both slander (spoken false statements) and libel (written false statements). If a statement is provably false and causes harm to the applicant's reputation, the former employer or reference could be held legally responsible for the damages that result.