Wyoming Employer Need Not Keep Immigration Documentation on Hand

While the workers’ compensation laws of virtually all states include illegally employed persons—e.g., minors and undocumented “aliens”—within the term “employee,” Wyoming’s definition is more restrictive. Only those 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 U.S. Department of Justice are employees entitled to workers’ compensation benefits [Wyo. Stat. Ann. § 27–14–102(a)(vii), emphasis added]. Despite the references in the statute to federal immigration standards and the specific wording of the statute itself, the Supreme Court of Wyoming, in Gonzalez v. Reiman Corp., 2015 WY 134, 2015 Wyo. LEXIS 151 (Oct. 6, 2015), quoting Larson’s Workers’ Compensation Law, § 66.03, held that an employer need not have in its possession the documentation required by the federal Office of Citizenship and Immigration Services (OCIS) to establish the employee’s ability to work within the country.

Reasonable Belief Regarding Immigration Status is Question of Fact

The Court added that the question the statute imposes for the fact finder is simply whether the documents in the employer’s possession, whatever those might be, support the employer’s reasonable belief, both at the time of hiring and injury, that the injured employee was legally authorized to work in the United States. In the instance case, the employer’s superintendent reviewed the worker’s immigration documentation (fake social security and fake permanent resident cards), but could not make a copy of them since the employer’s remote facility lacked electricity and, therefore, had no copy machine.

One interesting aspect of Gonzalez is that after the Wyoming Workers Compensation Division denied benefits on the ground that Gonzalez failed to show that he was authorized to work in the U.S., both Gonzalez and the employer appealed the decision. Then, Gonzalez withdrew his objection to the Division’s denial—apparently he wished to change his tack to a civil action sounding in negligence—but the employer continued to appeal. The Wyoming Office of Administrative Hearings determined that the Division had erred in its interpretation of the term “employee.” Gonzalez then appealed to the district court which affirmed. On further appeal, the Supreme Court agreed that the Division had utilized an incorrect standard.

Illegally Employed Workers Cannot Enjoy Greater Recovery Than Those Employed Legally

Citing L & L Enters. v. Arellano, 2015 WY 21, 344 P.3d 249 (rejecting the argument that fake documentation cannot be basis of employer’s reasonable belief) and Herrera v. Phillipps, 2014 WY 118, 334 P.3d 1225 (Wyo. 2014) (rejecting the argument that the employer must have a properly completed I–9 in its possession to support reasonable belief), the court quoted Larson, indicating that If illegal aliens believed by their employers to have authorization to work in this country were not employees for workers’ compensation purposes, they could sue and recover damages both from the employer and coemployees by proving ordinary negligence. Such damages would be limited only by whatever a particular injured employee could persuade a jury to award, while workers’ compensation benefits are limited. The Court concluded that paradoxically, an injured worker who was lawfully in this country could conceivably receive considerably less than a worker who was working illegally could recover in a tort action. The law could not support such a situation, held the Court.

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