Wyoming: Undocumented Worker Might Avoid Exclusive Remedy Defense

Wyoming’s definition of “employee,” which includes illegal aliens only if the employer reasonably believes both at the date of hire and the date of injury, based upon documentation in the employer’s possession, that the worker was authorized to work by the federal government’s Office of Citizenship and Immigration Services [see Wyo. Stat. Ann. § 27–14–102(a)(vii)], leaves open the door for some illegal workers to sue the employer in tort following a work-related injury, held the Wyoming Supreme Court. The plaintiff, who was not so authorized to work in the U.S., suffered a work-related injury and filed a tort action against the employer. The employer contended the state’s exclusive remedy provision barred the action, but the employee countered that the employee’s I–9 form on file with the employer was incomplete and that the employer otherwise had knowledge of the employee’s illegal status. The employee contended he was not an “employee” under the terms of the Wyoming Act and could, therefore, sue the employer in tort. The high court would not go so far as to say that an incomplete I–9 could serve as evidence that the employer knew of the probable illegal status of the worker, but the court did hold that under the facts of the case, the employee had raised a factual issue as to whether or not the employer knew the employee’s status was contrary to law.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

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See Herrera v. Phillipps, 2014 WY 118, 2014 Wyo. LEXIS 135 (Sept. 23, 2014) [2014 Wyo. LEXIS 135 (Sept. 23, 2014)]

See generally Larson’s Workers’ Compensation Law, § 66.03 [66.03]

For a more detailed discussion of the case, see http://www.workcompwriter.com/wyoming-court-says-undocumented-worker-might-be-able-to-employ-ingenious-argument-to-avoid-exclusive-remedy-defense/

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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