Undocumented workers find it hard to access worker’s comp

By Allie Gross

Jackson Hole News&Guide

Via Wyoming News Exchange

JACKSON — When a co-worker ran over a landscaper’s foot with a lawnmower, it took three days for the 25-year-old to go to the hospital.

The injured man first went to his employer, a Jackson Hole landscaping company, for help.

“He told me, ‘Oh no, it’s not in your best interest to do something, because if you start seeking workers’ comp or something like that, it won’t be in our best interest, or in yours, or your coworkers’,’” the worker said in Spanish.

Wyoming has some of the highest rates of workplace injuries and fatalities in the nation. It’s also the only state that explicitly excludes undocumented workers from receiving workers’ compensation, a program designed to help people pay for on-the-job injuries. Some see Wyoming’s law as both dysfunctional and dangerous.

Experts argue that it’s not just injured employees who suffer, but companies, co-workers and communities who ultimately pay the price for the peculiar state law.

Steve Dwyer is a Jackson attorney who fought unsuccessfully to secure compensation benefits for the injured landscaper. Dwyer, who has handled workers’ compensation cases for about eight years, is seeing an increase in cases involving undocumented workers in Teton County.

“What I’ve commonly seen is the employer denies that the injured claimant was actually working for them,” Dwyer said. “These employers have figured out a way to use the system.”

The landscaper’s injury happened on a Friday. Unsure whether his employer would help pay the medical bills, he waited until Monday to go to St. John’s Family and Urgent Care Center. He was outfitted with crutches and a boot, and a prescription for dozens of physical therapy sessions. He filed a workers’ compensation claim despite his employer’s warning, but the Wyoming Department of Workforce Services denied it a month later.

“The problem was when the workers’ comp division talked with the employer, they told them that they had me working as a subcontractor,” the landscaper said, “because they knew I was illegal.”

The man was never told he was not an official employee. He had been clocking in with the company for months, using its equipment, even earning a raise. He received no compensation for the six months he couldn’t work while recovering, and is now saddled with thousands in medical debt.

“They think they’re employees, but come to find they’re not,” said One22 Latino resource specialist Estela Torres, who interpreted for the landscaper throughout his ordeal. “That, to me, is the worst kind of exploitation. You’re clearly taking advantage of people here that are not authorized to work. You’re going to hire them in a hazardous job, and hire them as an independent contractor without their knowledge.”

Workers’ compensation, mandatory in all states except Texas, functions like an insurance pool for employers. Employers pay into it quarterly, then the state pays medical bills and lost wages when an employee is hurt on the job. It’s designed not only to ensure injured workers aren’t crushed by medical bills, but also to protect employers from costly personal injury lawsuits.

For example, in 2010 Reiman Corp., a Cheyenne construction company, paid $1 million to a worker named Omar Romero. Romero was working on shoring up the road shoulder on Highway 89 south of Jackson when a co-worker operating an excavator dropped a load of steel into him, said his attorney, Jim Gigax.

“He was bleeding out of the mouth and ears,” Gigax said.

Romero was evacuated by air to Idaho Falls for permanent and severe spine injuries. When he sought workers’ compensation, the state of Wyoming determined Romero was not entitled to it because he was not legally authorized to work in the U.S. The statute, as interpreted by the courts at the time, allowed only laborers authorized to work in the U.S. to benefit from workers’ compensation.

“Because there wasn’t workers’ comp, you can sue your employer if your employer was negligent or fell below the standard of care,” Gigax said, “which is what we did.”

A jury determined the construction company owed Romero $1 million. In other states, Colorado among them, the case wouldn’t have even gone to court, Gigax said.

In 49 states, including Colorado, undocumented workers are entitled to workers’ comp. The system would have paid Romero’s medical bills, and the company would have saved the $1 million payout because workers’ comp would have made it immune from a lawsuit.

It was that $1 million verdict that led Wyoming to obfuscate its workers’ comp law, University of Wyoming law professor Michael Duff said, resulting in a “bizarre rule.”

Rather than categorically excluding undocumented workers from receiving workers’ comp, the existing Wyoming law states that undocumented workers can use workers’ comp if the employers can prove they “reasonably believed” the worker was authorized to work in the U.S. based on documents provided. The new statute is designed to protect employers from suits like Romero’s, to give them an out by placing the onus of proving work authorization on the employee rather than the employer.

So if the state workers’ comp division believes that an employer reasonably believed that work authorization documents presented by the worker were legitimate, the state will approve the claim.

Sound confusing? That’s because it is, Duff said.

“That’s a very strange statute,” Duff said. “It’s structured oddly, it’s hard to read, it’s hard to understand.

“I think it’s confusing to legal practitioners. I can’t even imagine what a rank-and-file worker would be thinking about what his or her status was under the law.”

In another one of Dwyer’s cases, a worker’s livelihood depended on the fuzzy statute. A roofer fell from a height of 14 feet while framing a ceiling on a job in Jackson Hole in the winter of 2017. He severely injured his legs and back in the fall.

“Even today, I still have substantial pain really in my whole body,” the roofer, who now lives out of state, said in Spanish.

Workforce Services denied his compensation claim, saying the state agency couldn’t verify he was legally employed in the U.S. The employer had accepted Social Security and green card documents from the roofer that did not belong to him but could be interpreted as enough to “reasonably believe” he was employable.

But while the documents were enough for the company to hire the roofer as an employee, once he was hurt the employer did not cooperate in the roofer’s claim. The roofer could have received benefits if the employer had indicated the worker supplied believable work authorization documents.

Dwyer argued in an appeal to the 9th District Court that the employer must have believed the roofer’s documents were valid, since the laborer was hired, and therefore he should be entitled to benefits under the statute. But Judge Timothy Day denied the benefits under the statute.

“This is gravely unfortunate in terms of recovery through workers’ compensation, as it seems to reward nonresponsive employers,” Day wrote in an order.

The employer’s refusal to participate in the suit, and Day’s ruling, meant the roofer owed $17,000 in hospital debt. That cost doesn’t include lost wages during recovery or less tangible losses suffered in an accident.

“Little by little I’m working, now a little better, but not 100 percent like I was before,” the roofer said. “If you have an accident at work, it hurts. It hurts you because you’re not the same person. You can’t work the same as before.”

For Duff, the UW law professor, changes made to the law after the Romero case are highly questionable, and may pose unintended consequences.

“It’s not sufficiently fixed, I don’t believe, to operate as a rule of law,” he said.

“I can imagine an employee — nod nod, wink wink, say no more — placing a document in the hands of an employer from which the employer could reasonably infer that that employee was lawfully present,” Duff said. “Are we encouraging that kind of conduct?”

When the workers’ comp system doesn’t cover a worker he or she is constitutionally entitled to a personal injury suit, Duff said. That means, in Wyoming, that injured undocumented workers could resort to taking their employers to court.

The problem is that undocumented workers often don’t have the resources to bring a lawsuit. Spanish-speakers also face more obstacles to taking legal action. Plus, employers can use the threat of deportation to make claims go away.

The injured roofer said all his medical debt doesn’t leave much room in his budget for a lawsuit. And the injured landscaper still can’t find an attorney in Jackson who will help him with a personal injury suit. Lawyers he approached told him they wouldn’t take a case for an undocumented worker; that if he sued, the employer would just call immigration enforcement to have him deported.

“There isn’t a lawyer that will take a case,” the landscaper said. “So how are we supposed to take action against them if we don’t have someone to represent us?”

Debbie Berkowitz, the worker health and safety program director at the National Employment Law Project in Washington, D.C., said such scenarios are common.

“It’s very hard for workers to find lawyers to sue an employer, because if the employee doesn’t have deep pockets, it’s a lot of work,” Berkowitz said. “And lawyers aren’t going to spend the money.”

Berkowitz said undocumented workers are the most vulnerable to exploitation, such as employers intimidating them to not file for workers compensation or a tort suit.

Some, however, say the law works “pretty well.”

Jason Wolfe, deputy director of Wyoming Workforce Services, said by and large, employers are diligent about gathering the necessary documents from employees to ensure they’re legally hirable.

“I think we are, in a sense, including them, including the undocumented workers, as long as they’re providing some verification to their employer that they have an authorization to work,” Wolfe said.

Berkowitz, the employment law expert, maintains that it’s important for all workers to be covered under the compensation system for the safety of everyone.

“If the state denies coverage to undocumented workers, you actually encourage unscrupulous employers to hire undocumented workers and use their immigration status as a shield to escape full responsibility for on-the-job injuries,” Berkowitz said. “That would give employers who cheat an unfair advantage over employers who play by the rules.”

Workers compensation is kind of like auto insurance, she said. All employers in required industries pay quarterly “premiums” into the system in exchange for full coverage when an employee gets hurt.

The premiums are calculated based on the number of employees and their wages, and how risky the business is. So if an employee is hurt the business could be deemed more risky and its costs for workers’ comp could rise.

She said that creates a “perverse incentive” for employers to hire undocumented workers, knowing they won’t have to worry about an injury and can get away with maintaining a less safe workplace. She argues that the way Wyoming treats undocumented workers puts all workers in danger.

“If an employer does not have to provide workers compensation to some of their workers, they will cut corners on safety for all their workers,” Berkowitz said.

The roofer said it bothers him that the company can continue operating below safety standards with other workers. The landscaper, too, is worried that there were no consequences for the company following his accident.

“To me, it seems unjust, because workers’ comp or the state of Wyoming is allowing the companies to continue operating in the same way and affecting more workers,” the landscaper said.

He’d like to see the state investigate these companies. Berkowitz agreed.

“This company should be fined because they are undermining all the law-abiding companies in Wyoming by knowingly hiring workers that were undocumented,” he said.

The carve-out in Wyoming’s law hurts businesses that comply with the law, and the general public, Berkowitz said.

“It’s allowing dangerous employers to get off the hook,” he said. “It’s making competition really unfair with employers that do comply with the law.

“It’s also shifting the burden of work-related injuries onto the community and families and even the taxpayer, while the employer goes scot-free,” Berkowitz said.

Berkowitz would like to see Wyoming join the other 49 states that cover undocumented immigrant workers under the compensation program. She suggested Washington state provides an example of “one of the best systems” of a state-run workers compensation system, because that state uses data to enforce regulations to prevent workplace injuries from happening in the first place.

“Most injuries in the country are caused by unsafe conditions, they’re not caused by workers doing really stupid and crazy things. They are preventable,” Berkowitz said.

In 2018 two undocumented workers died when a trench collapsed in Jackson Hole. Juan Baez-Sanchez, 42, and Victoriano Garcia-Perez, 56, were alone on a job off Indian Springs Drive when the trench caved in, suffocating them. The investigation is ongoing, but law enforcement found a lack of safety precautions during an initial investigation of the residential construction site.

The injured landscaper feels his case isn’t isolated and that many injured workers don’t take any action out of fear.

“There are more cases in Jackson,” the landscaper said. “There are more cases, but many people stay quiet out of fear they’ll be deported.”