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“Play the ball as it lies”: Pennsylvania Federal Court Finds Recruiters Owe Duty to Accurately Repre

March 3, 2023: Written by Erik Derr, Esq., Staffing Team Member, Becker LLC


Rule No. 9 in the United States Golf Association’s Rules of Golf requires golfers to “play the ball as it lies”. That is, golfers must not alter or change the spot of the ball once it comes to rest.


A federal judge in the Eastern District of Pennsylvania set forth a comparable principle for staffing agencies in the recent case Patel v. Kelly Servs., 2023 U.S. Dist. LEXIS 28086 (E.D. Pa. February 21, 2023). In Patel, a prospective employee, Darshitkumar Patel (“Patel”) sued a staffing and recruiting company, Kelly Services, Inc. (“Kelly”) after Kelly submitted Patel for a position at Menarini Silicon Biosystems (“MSB”) from which he was subsequently fired after it was discovered that Patel was underqualified for the position. Unbeknownst to Patel, MSB required his position have a college degree.


Background and Facts


As part of the process, Patel submitted his resume to Kelly, which specified that he did not have a bachelor’s degree, but completed one year of coursework in a degree program. Kelly responded in an email, stating that if Patel met the MSB job requirements, he would be contacted.


Matt Tassoni (“Tassoni”), a manager at Kelly, emailed Patel’s candidacy to MSB, stating that Patel “has a B.S. in computer applications” and, in doing so, submitted an altered version of Patel’s resume, omitting that he only had one year of coursework in a degree program. Before Patel’s interview with MSB, Patel texted Maggie Miller (“Miller”), also at Kelly, asking if MSB required its employees have a college degree. Miller replied “[N]o..I don’t think it will come up at all so nothing to worry about.”


During his interview, MSB did not ask Patel about his education and he later received an offer for the position. After receiving the offer, Patel resigned from his former position at Johnson & Johnson (“J&J”). MSB fired Patel after nine days of employment when it was discovered that he did not have the required credentials.


The Court’s Findings and Holdings


Patel sued Kelly alleging fraud, misrepresentation, negligent misrepresentation, and false inducement. Kelly filed a motion to dismiss and the Court denied Kelly’s motion (in part) as to the fraudulent misrepresentation claim and on Patel’s claim for negligence.


While the Court did not find Kelly owed a legal duty to Patel to describe the MSB job requirements accurately under a theory of negligent misrepresentation, the Court found that Patel’s claim for fraudulent misrepresentation, with respect to Miller’s text messages that MSB did not require a college degree and that there was “nothing to worry about”, are actionable. The Court reasoned that because Miller told Patel that his education was “not likely to come up” in the interview, she suggested that MSB relied on Kelly to confirm his application met MSB’s threshold requirements. As such, the Court permitted Patel’s fraudulent misrepresentation claim to advance past the motion to dismiss stage.

The Court also found that Patel’s negligence claim was cognizable because recruiters should recognize that misrepresenting an employee’s credentials could harm the employee’s chances of employment. Patel v. Kelly Servs., 2023 U.S. Dist. LEXIS 28086, *13-14, 2023 WL 2139828 (E.D. Pa. February 21, 2023). Similar to an analogous case where a hospital had a duty to employees to use reasonable care in administering drug tests, the Court reasoned that recruiters could have a duty of care to accurately represent employee credentials when presenting employees to prospective employers.


The Takeaway


Like any golfer, the Eastern District’s rulings suggest that recruiters and staffing agencies, too, must “play the ball as it lies”. That is, they must take the prospective employees and job qualifications as they find them. Making misrepresentations or alterations along the way may prove to be costly.




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