This is the next article in WorkersCompensation.com's “Undocumented, and Unprotected?” series, as our writers explore what is it like to be an undocumented worker in the U.S., and what it means regarding workers' compensation.
---
Cheyenne, WY (WorkersCompensation.com) – Unlike many states in this series where there is some gray area in regard to workers’ comp benefits for undocumented workers, in Wyoming, the law is pretty clear: Unauthorized immigrants are not entitled to workers’ comp benefits.
However, it does happen, albeit rare.
“The Supreme Court of Wyoming has ruled on this issue before and notes the following language consistently in its rulings,” said Hayley McKee, a spokeswoman with the Wyoming Department of Workforce Services. “Wyoming law only requires an employer to ‘reasonably’ determine an employee’s work status based on documentation in its possession at the time of an employee’s hire and date of injury.”
In 1999 the Supreme Court of Wyoming ruled that noncitizens — ‘aliens’ — are not allowed to receive workers’ comp benefits.
A 2015 case involving a worker who suffered back pain while riding in the back of a truck was denied benefits because he was proven to have false paperwork. Because the paperwork was “reasonable” at the time of the injury, the claim was granted.
In part of the ruling, the Court wrote:
“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 co-employees by proving ordinary negligence. Damages would be limited only by whatever a particular injured employee could persuade a jury to award, while workers’ compensation benefits are limited. Paradoxically, therefore, an injured worker who is lawfully in this country could conceivably receive considerably less than a worker who is working illegally could recover in a tort action.”
A 2014 Pew Research study found that Wyoming had around 5,000 illegal immigrants in the state, with nearly 60% of those coming from Mexico.
The National Employment Law Project (NELP), a Washington, D.C. workers’ rights group, estimates 934 immigrant workers were killed on the job in 2015.
“No matter what their immigration status, all workers must be covered under workers’ compensation laws,” said Debbie Berkowitz, a senior fellow with NELP. “If states were to deny coverage to undocumented workers, they would encourage unscrupulous employers to hire undocumented workers and then use their immigration status as a shield to escape full responsibility for on-the-job injuries. That would give employers who cheat an unfair advantage over employers who play by the rules.”
Wyoming is the only state which restricts workers’ comp coverage in a state statute.
However, undocumented workers do have the ability to sue, although given the statute, few lawyers are willing to take such a case, she said.
Berkowitz said the moves to restrict workers’ comp benefits for undocumented workers comes from an anti-immigrant legislator.
“That’s what’s happening in Ohio,” she said.
In early December, the Ohio Statehouse passed legislation to ban workers’ comp benefits for illegal immigrants. One of the sponsors of the bill, Rep. Larry Householder, a Republican, argued current law creates an “unintended incentive” for “rogue businesses” to hire undocumented workers because they are typically cheaper. He said when they get hurt, they become the responsibility of the system rather than the businesses that broke the law.
