PHILADELPHIA - A woman suing a potential employer that rescinded an offer to her because her temporary visa expires in 2020 is allowed to sue for negligent misrepresentation, the U.S. District Court for the Eastern District of Pennsylvania determined July 26.
Still, Saswati N. Chand's claims of promissory estoppel and breach of the implied covenant of good faith and fair dealing against Merck & Co. Inc were dismissed. She was granted leave to amend her complaint for negligent misrepresentation but was denied leave for the other claims the court dismissed.
U.S. District Judge Gene E.K. Pratter ruled on the case. Pennsylvania law says that at-will employees cannot sue for promissory estoppel.
“Because the promise was contingent, it was not actionable, as a matter of law, for promissory estoppel purposes,” the court said. Considering this, even if the promissory claim was allowed for at-will agreements, the court said the claim still would have been dismissed.
As for Chand's breach of an implied contract claim, the court said she and Merck didn’t actually have a contract together. The offer letter is not a contract and contained multiple conditions on it, which Chand did not fulfill. Also, the offer letter says, “Nothing herein shall be construed as creating a contractual relationship between you and Merck,” said the court.
But Chand did prevail in the negligent misrepresentation claim. Merck argued the economic loss doctrine blocks recovery for monetary damages and that Chand doesn’t claim an actionable misrepresentation, but the court disagreed and gave Chand the green light for leave to amend the complaint.
The court said it was obvious Merck and Chand were in talks of a possible employer/employee relationship.
"There is significant value provided by human resources employees bringing in the best and brightest potential applicants, for Merck and certainly in STEM fields,” the court said.
Merck gave Chand employment information with the intention of bringing her on board and being fully aware that candidates would use that information to determine if they would accept the position, the court said. Because of this, Chand was able to get leave to file a new negligent misrepresentation complaint.
Chand’s issue began shortly after interviewing for a position with Merck in early 2018.
She said she informed a recruiter that she didn’t require sponsorship at that time because she’s in the United States on a work visa. But she also told the recruiter the visa expired in May 2020.
Prior to Merck making its decision, Chand started working for Crown Bioscience. Weeks after that, Chand received a phone call from the Merck recruiter to offer her the position.
She was told she’d get an offer letter soon. The letter stated the offer was “contingent upon proof of your identity and eligibility to work in the United States, as required by the Immigration Reform and Control Act of 1986. This includes completion of the I-9 form and production of the required documentation,” according to the court.
After she got the letter but before she began with Merck, she quit her job at Crown Bioscience and paid $10,000 for a townhouse closer to Merck.
Merck then rescinded the offer letter, stating it was because she would need sponsorship in the future. It also said that Merck checked that she wouldn’t need sponsorship in the future during the application process.
While she later got a job as a Post Doc Fellow at Thomas Jefferson University, her salary is about 50 percent of what she would have earned at Merck, not including bonuses and other incentives she could have also been owed.