Tuesday, June 19, 2018
Back in May of 2012, the Federal District Court of Wyoming entered a $900,000 tort judgment against an employer, Reiman Corp., for an injury arising out of and in the course of employment by its undocumented worker, Omar Romero. (The case has been oddly difficult to retrieve – a LexisNexis account can be reviewed here). Why a tort case? Because at the time Wyoming explicitly excluded undocumented workers from coverage under its workers’ compensation act. Those not pleased by this outcome apparently did not understand the fundamental nature of the quid pro quo under some state constitutions: if you categorically exclude a category of injured worker from eligibility under workers’ compensation, you arguably must restore underlying tort rights. This is how Judge Nancy Freudenthal of the federal district court of the District of Wyoming, who heard the case, saw Wyoming law. Hence, the tort suit was not barred by exclusivity.
Subsequent to the Reiman decision, the Wyoming legislature enacted a very unusual undocumented worker rule: an “alien” is an employee for purposes of eligibility for Wyoming workers’ compensation benefits if “authorized to work by the United States department of justice, office of citizenship and immigration services [or is an alien] 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.” The corollary to this rule is that an alien who is not properly authorized to work, and whom the employer does not reasonably believe to be properly authorized based on documents in the employer’s possession, is not a statutory employee. To my knowledge, and here I attach the excellent summary chart produced recently by Judge David Torrey and now-Attorney Justin Beck, Wyoming is the only state possessing an explicit statutory exclusion for undocumented workers, albeit an odd partial one based on someone’s subjective belief of something.
So, the really bad employer is not liable for workers’ compensation but is possibly liable in tort. Not a bad trade, I’d say, given the relatively low likelihood of an employer being sued by an undocumented worker in a long-running tort suit (though it did, of course, happen in Reiman, above).
One irony of this structure is that, if an undocumented worker wishes to pursue a tort case against his or her employer for a work-related injury in Wyoming, a workers’ compensation exclusivity bar defense would probably have to go to the jury (all other elements of the negligence prima facie case would have to satisfy evidentiary pleading requirements, of course). Whether the documents relied upon by the employer are the type upon which a reasonable belief of authorization could be founded is perhaps a question of law for the court. But before you can get to the question of reasonable belief there is the preliminary question of actual belief. Did the employer actually believe (whatever the basis of the belief) that the undocumented worker was authorized to work by United States officials? It seems to me that question is squarely for the jury.
Michael C. Duff