Is A Wyoming Law For Undocumented Workers Making Workplaces More Dangerous?

Feb 15, 2019

A 25-year-old immigrant got a job working for a landscaping company in Jackson. One day, he was out mowing a lawn.

"I had an accident. A coworker drove over my foot with a machine," he said.

As an undocumented worker, he was immediately worried.

"Because I wasn't sure [my employer] would pay, I didn't try to go to the hospital," he recalled. "I went to talk to the employer. He just told me, 'Oh, well for you, it wouldn't be in your best interest to do anything, if you put in for workers comp.' The accident happened on Friday, I didn't go to the clinic until Monday."

Since his boss said filing for worker's comp wasn't a good idea, he still needed to figure out how to pay his medical bills, and so, he sought legal help.

"I went to two lawyers here in Jackson, and they told me that I couldn't demand money from the company, that if I did, the company would call immigration," the landscaper said. "There isn't a lawyer that will take a case, so how are we supposed to take action against them if we don't have someone to represent us?"

The rates of people hurt or killed on the job in Wyoming are higher than in any other state and many of those workers are Latino. Nationally, Latinos suffer workplace accidents more than any other group.

Many undocumented workers choose not to get help after an accident for fear of deportation, and Wyoming's laws provide no protection from that. This worker's plan to sue went nowhere.

But there is one attorney in Jackson who takes cases like this: Steve Dwyer.

"I've been doing worker's comp approximately seven or eight years. And for the first six years, I never had any of those type of cases coming up and then just literally within about the past two calendar years, I've probably had a half dozen or so," said Dwyer.

Right now, Dwyer is working on a case for another undocumented worker who fell off a roof. His employer had been paying into worker's comp for him, but the roofer never saw those benefits and now he's about $17,000 in debt.

"When he was hurt, his boss said he would pay the medical bills," said Dwyer, "and then the medical bills got more than what the boss wanted to pay so the boss cut off all contact with the person. So, the employee made a worker's compensation claim, which the division denied."

Wyoming's Division of Worker's Compensation, that is. They denied the claim because under Wyoming law, undocumented workers can't be considered employees. It's the only state that explicitly excludes them by law.

"That's a very strange statute," said University of Wyoming Law professor Michael Duff, who is writing a treatise on Wyoming's unusual worker's comp laws. "It's structured oddly, it's hard to read, it's hard to understand. And that includes how we define employee."

Back in 2005, lawmakers tried to fix the problem by leaving it up to employers to decide if their workers were here legally. Now, if the employer believes the worker's paperwork seems legit, then, sure, that worker can receive worker's comp.

But Duff said that's not good enough to solve Wyoming's unsafe workplace problem. He said, if employers aren't tending to the safety of some of their workers that makes it less safe for all their workers. In 2015, over 11,000 immigrants worked in Wyoming, many of them in Wyoming's so-called extra hazardous industries: things like construction, transportation and mining. 

Credit Andy Edwards

"Somebody's going to pay," said Duff. "Okay, so as a society we're just trying to figure out who is it that's going to pay. Because you don't get to have human beings come and work for you and get injured and then not have any cost occasioned by those injuries, right?"

"In my experience, the law as written works pretty well," said Wyoming Workforce Services Deputy Director Jason Wolfe. "I think we are in a sense including the undocumented workers, as long as they're providing some verification to the hiring employer that they have an authorization to work."

In other words, as long as their documents convince the employer-legal or not—they're covered. It's unclear how many Latinos are hurt or killed on the job in Wyoming because the agency's reports don't show a breakdown by ethnicity. But Wolfe said, in his experience, most employers aren't working the system and such cases are pretty rare.

But Wolfe said that worker's comp does function like other kinds of insurance, and would be more successful if all workers were covered.

"I think that would then require some alterations within the current statute to allow people to just flagrantly hire undocumented workers and then be covered under worker's compensation. I don't disagree with the idea. I think that would substantially lower costs," said Wolfe.

As for the injured landscaper in Jackson, he said he feels the current law exploits workers like him.

"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."

He said he's been out of work for six months because of his injuries and still isn't sure how he's going to pay off his thousands of dollars in medical bills.

This story was reported in collaboration with the Jackson Hole News and Guide. Caroline Ballard spoke with their reporter Allie Gross and WPR's Melodie Edwards about the benefits of co-producing this story. To read their version of the story, visit the Jackson Hole News and Guide here.