Did this employer know its injured employee wasn’t legally able to work in the U.S.? The employee’s ability to sue the company and his supervisor hangs on that question.
Enrique Herrera was working for Gilligan’s LLC in Wyoming as a pipe fitter. On June 5, 2007, Herrera was working with a crew to clean out a four-inch pipe using a compressor to blow a cleaning plug through the pipe.
The plug got stuck in the pipe, and Herrera suggested they cut the pipe at a T-joint near where it was stuck.
Instead the supervisor, Robert Phillipps, directed the crew to lift the pipe out of the ditch.
When the pipe was lifted, Phillipps bent it, told Herrera to hold it and walked away.
There was an explosion. Herrera dropped the pipe, but it was still under pressure. It twisted and whipped back and forth, striking Herrera and injuring him severely.
Herrera says Gilligan’s told him it wouldn’t submit a workers’ comp claim for him. Instead the company would pay his medical expenses and lost wages. It made the payments for a while but then stopped. Herrera sued the company in 2009.
In 2011, Herrera added Phillipps to the lawsuit. Gilligan’s and Phillipps sought to have the lawsuit thrown out, saying he was covered by its workers’ compensation policy.
Herrera argued workers’ comp didn’t apply to him because he wasn’t authorized to work in the U.S.
Gilligan’s argued there was no evidence indicating it knew Herrera was an undocumented worker.
A district court concluded there were genuine issues of material fact about whether Gilligan’s believed Herrera was working legally in the U.S., therefore the case should go to trial.
Gilligan’s filed a second motion to get the case thrown out. This time without explanation, the district court ruled in favor of the company.
Herrera appealed to the Wyoming Supreme Court.
Wyoming’s workers’ compensation law says employees covered include:
” … aliens 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.”
No one argued that Herrera wasn’t authorized to work in the U.S. The question is whether Gilligan’s knew that.
Herrera argues an incomplete I-9 form in his employment file at Gilligan’s shows the company knew he couldn’t work legally in the U.S.
Although Herrera signed the document, the first section was filled out by someone else. The second section of the form was entirely blank.
Gilligan’s argues Herrera’s signature verified he could work lawfully even though the I-9 wasn’t completed.
But the Wyoming Supreme Court said the document actually provides sufficient evidence to raise a genuine issue of material fact that should be decided at trial. So the court reversed the summary judgment originally given to Gilligan’s.
Case of intentional harm?
Wyoming’s workers’ comp law says co-employees are immune from negligence lawsuits but may be held liable if they “intentionally act to cause physical harm or injury to the injured employee.”
The Wyoming Supreme Court concluded that in this case, there is sufficient evidence to create a genuine issue of material fact whether Phillipps had knowledge of the dangerous condition and whether he acted in disregard of known risks.
Gilligan’s has a written policy concerning the safe use of plugs to clean out pipes. Among the requirements in the document:
- no more than 4 feet of pipe should be exposed
- the pipe will be anchored, chained or secured, and
- compressors will be turned off when there are spikes or fast increases in pressure.
There is evidence that about 200 feet of pipe was exposed; the pipe wasn’t anchored, chained or secured; and Phillipps told the compressor operator not to turn it off.
That evidence could be enough to support Herrera’s lawsuit against Phillipps, the Wyoming Supreme Court ruled.
So now a trial against both Gilligan’s and Phillipps will proceed unless they come to a settlement with Herrera.
Herrera’s case is a twist on ones involving injured undocumented workers we’ve written about before. In most, the undocumented workers are arguing that workers’ comp laws pertain to them – that they’re employees, and state workers’ comp laws don’t distinguish between those who are or aren’t able to work legally. And the courts are ruling in favor of the injured undocumented workers in those cases.
Either way, it shows the importance of getting proper documentation to show employees can work legally in the U.S.
And in the case of the supervisor, this is a case that shows written safety rules are only good if they’re followed.
What do you think about the court’s decision? Let us know in the comments.
(Enrique Herrera v. Robert Phillipps and Gilligan’s LLC, Wyoming Supreme Court, No. S-13-0243, 9/23/14)