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 Virginia, 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, it is permissible for prospective employers to reach out to an applicant's former employers or references. These parties are allowed to share truthful facts and their opinions about the applicant. Nevertheless, they must avoid making false statements. If a former employer or reference makes statements about an applicant that are both false and damaging to the applicant's reputation, they could be held liable for defamation, which includes both slander (spoken defamation) and libel (written defamation). Virginia law, like that of many states, provides legal recourse for individuals who have been defamed by someone else's false statements.