Labor & Employment Law Daily Job applicant holding temporary visa advances negligent misrepresentation claim against Merck
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Friday, May 1, 2020

Job applicant holding temporary visa advances negligent misrepresentation claim against Merck

By Ronald Miller, J.D.

The court found the circumstances of this case could give rise to the inference that Merck’s offering the plaintiff the position while knowing she held an F-1 visa constituted an implied material misrepresentation as to her eligibility for the position.

An applicant who received a conditional offer of employment from Merck, which was later rescinded after the company determined that she did not accurately report her immigration status on her original application, survived a summary judgment motion against her negligent misrepresentation claim. A reasonable factfinder could determine that representatives of Merck impliedly communicated that the applicant was eligible for the position despite holding an F-1 student visa, a federal district court in Pennsylvania concluded. Further, Merck failed to reasonably investigate its misrepresentation regarding her eligibility. Moreover, the court determined that a factfinder could find that the applicant justifiably relied on the alleged misrepresentations in resigning her existing employment and that the misrepresentation caused her injuries (Chand v. Merck & Co., Inc., April 27, 2020, Pratter, G.).

Temporary visa applicant. When she applied to Merck, the plaintiff, an Indian foreign national, held an F-1 student visa. F-1 student visas are temporary. Prior to graduating with a Ph.D. in biochemistry and molecular pharmacology, she applied for and received an optional practical training (OPT) employment authorization endorsed by her educational institution, permitting her to work until May 2018.

The plaintiff submitted a job application to Merck in December 2017, and in early 2018, she began interviewing with the company. Her application indicated that she would not require employer sponsorship from Merck. The plaintiff understood that Merck did not offer visa sponsorship and that she would not be eligible for the position if she required sponsorship.

Prior to any face-to-face interviews with Merck, the plaintiff was offered a position with Crown Bioscience. She accepted the position and moved to California. During her employment with Crown, she and the employer worked on a STEM OPT extension, but the application was not submitted due to her resignation.

Conditional employment offer. In March 2018, she was offered conditional employment with Merck. The offer letter was contingent on the plaintiff successfully passing a drug screen and verification of employment history, education, and background check. A letter to the plaintiff advised her not to alter her current employment status until the contingencies had been successfully completed and that the offer was contingent upon proof of identity and eligibility to work in the United States. The plaintiff gave her notice of her resignation to Crown prior to accepting Merck’s offer.

After Merck determined that she had inaccurately misrepresented her immigration status on her initial job application, it revoked the job offer. According to Merck, if she had revealed in prescreening questions that she held a temporary visa, she would not have been selected for an interview. Thereafter, the plaintiff brought suit.

Negligent misrepresentation. In prior rulings, the court dismissed all of her claims, except for a negligent misrepresentation claim, which was based on the theory that Merck made misrepresentations as to her eligibility for hire despite her temporary visa status. Merck sought summary judgment on that claim.

A claim for negligent misrepresentation requires proof of: “(1) a misrepresentation if a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.”

According to Merck, its offer of employment was contingent upon the plaintiff meeting all prerequisite conditions of employment, one of which required that she not be a temporary visa holder who required sponsorship. It contended that because she could not meet this prerequisite, and actually had completed her application inaccurately, it had every right to rescind its conditional offer.

Implied misrepresentations. The court found that the plaintiff’s claim was analogous to the situation of the plaintiff in Browne v. Maxfield, where, on the strength of an understanding that a job offer was imminent, an applicant asked if he should tell his current employer he would be formally resigning, to which an official answered affirmatively. In Browne, the court found that there was a genuine dispute as to whether a material misrepresentation was made.

Under Pennsylvania law, implied misrepresentations are actionable under a theory of negligent misrepresentation. The court concluded that the circumstances of this case could give rise to the inference that Merck, by offering the plaintiff the position while knowing that she held an F-1 visa, constituted an implied material misrepresentation as to her eligibility for the position.

The court noted that during an early interview, the plaintiff informed a Merck official of her F-1visa status and that she would require an extension. At some point, the plaintiff advised the official that she would be resigning from her current employment, to which the official raised no challenge. Further, when the plaintiff represented that she believed there should not be any issues with her background checks, the official responded that she “should be okay.” After receiving the offer letter, the employee inquired whether Merck needed any additional information to effectuate the onboarding process, to which a member of the recruiting team stated that she had everything she needed.

Presented with these facts, a reasonable factfinder could determine that representatives of Merck impliedly communicated that the plaintiff was eligible for the position despite being an F-1 visa recipient. Thus, the plaintiff raised the requisite factual dispute on the first prong of her tort claim.

Falsity of misrepresentation. As set forth in the Pennsylvania Supreme Court’s 1994 ruling in Gibbs v. Ernst, to prove negligent misrepresentation, “the speaker need not know his or her words are untrue, but must have failed to make a reasonable investigation of the truth of those words.” Under the facts presented here, the court concluded that a reasonable factfinder could determine that Merck failed to engage in the requisite reasonable diligence, such that it ought to have known of the falsity of its misrepresentation that the plaintiff was eligible for the position. Again, the plaintiff pointed to evidence that Merck officials were aware she held a student visa that needed extension, yet communicated that her application “should be okay.” Thus, summary judgment was denied on the second element of her claim.

Induced to alter status. The court also found that the plaintiff raised the necessary factual dispute on the third prong of her negligent misrepresentation claim. Although Merck asserted that its offer letter advised the plaintiff not to change her employment status until she was informed she met all contingencies of employment, the plaintiff pointed to evidence that a Merck official assented to her notice of resignation and she was reassured that her candidacy was pre-approved, which could rebut Merck’s contentions. Thus, whether Merck possessed the requisite intent to induce the plaintiff to resign her job at Crown was a fact determination for a jury.

Reliance on misrepresentations. With regard to whether the plaintiff justifiably relied on the alleged misrepresentations, the court rejected Merck’s contention that there can be no finding of reliance in at-will employment relationships. Rather, given that the facts here could give rise to the inference that the plaintiff’s eligibility was confirmed, the court determined that a factfinder could conclude that her reliance was reasonable (and not merely one-sided).

As to the final element, whether Merck’s purported misrepresentation caused the plaintiff’s alleged injuries, the court found a factfinder could conclude that her reliance on Merck’s assent caused her to resign. Accordingly, the court declined to dismiss on summary judgment the plaintiff’s negligent misrepresentation claim.

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