Wyoming Court Says Undocumented Worker Might Be Able to Employ Ingenious Argument to Avoid Exclusive Remedy Defense

The Wyoming Supreme Court, construing the statutory provision within the state’s Workers’ Compensation Act (“the Act”) defining “employee,” recently held that an an undocumented worker might be able to take advantage of his illegal status and sue his employer in tort, rather than settle for what he might otherwise have received via a workers’ compensation claim [see Herrera v. Phillipps, 2014 WY 118, 2014 Wyo. LEXIS 135 (Sept. 23, 2014)]. The court held that the injured worker had presented sufficient evidence to raise a factual issue as to whether the purported employer knew of the worker’s illegal status prior to the injury. If the employer had such knowledge, the tort action could move forward to a jury; summary judgment by the trial court favoring the “employer” was, therefore, improper.

Statutory Definition of Employee

In Wyoming, like all other states, except Texas (and even in Texas for employers that have “subscribed” to the Texas workers’ compensation system), an employee’s exclusive remedy for a work-related injury is to receive statutory benefits under the state’s workers’ compensation laws. The Wyoming worker sought to use a wrinkle in the state’s definition of employee to escape the exclusivity defense. The Wyoming Act’s definition of employee includes illegal aliens:

… whom the employer reasonably believes at the date of hire and the date of injury based upon documentation in the employer’s possession, to be authorized to work by the United States department of justice, office of citizenship and immigration services.

Wyo. Stat. Ann. § 27-14-102(a)(vii) (emphasis added).

There was no dispute that the worker was an alien who was not authorized to work in the United States, both at the time he was hired by the employer and at the time of his injury. The worker contended in pertinent part that the employer did not have a properly completed I-9 form in the worker’s personnel file and that the facts, therefore, compelled a finding that the employer did not have and could not have had a reasonable belief as to the worker’s authorization to work. The argument continued that since the worker was not an “employee,” he was not barred from suing his “employer” in tort.

Initially, the high court indicated that the worker’s argument, taken to its logical limit, was that an employer must have a properly completed I-9 in its possession in order to prove that it had a reasonable belief that an employee was authorized to work. The statutory language did not, however, allow such an interpretation. While the statute required documentation in the employer’s possession, it did not specify what form such documentation was to take.

Worker’s Authorized Status an Issue of Fact

The fact that the employer did not have a completed I-9 form was evidence, however, that the employer did not have a reasonable belief that the worker was authorized to work in the United States. Moreover, the worker testified that the supervisor who drove him to the hospital after the injury asked, “You’re illegal, aren’t you?” That statement might also suggest the employer actually knew of the worker’s undocumented status.

The high court said there was conflicting evidence as to whether the employer had a reasonable basis to believe that the worker was authorized to work. Accordingly, summary judgment was improper. The court said that at trial, the fact finder must determine whether the employer had a reasonable belief, based on documentation in its possession, that the worker was authorized to work in the United States. If the fact finder determined that it did have a reasonable belief, then the worker fit within the Wyoming Worker’s Compensation Act definition of an employee, and the employer would be immune from his claims. If the employer did not have such a reasonable be-lief, then the worker would not be an employee under the Act, and the employer would not be immune from his claims.

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