In the Matter of the Worker's Compensation Claim Of: Adalberto Gonzalez v. Reiman Corp.

IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 134
OCTOBER TERM, A.D. 2015
October 6, 2015
IN THE MATTER OF THE WORKER’S
COMPENSATION CLAIM OF:
ADALBERTO GONZALEZ,
Appellant
(Petitioner/Claimant),
S-15-0016
v.
REIMAN CORP.,
Appellee
(Respondent/Employer).
Appeal from the District Court of Laramie County
The Honorable Steven K. Sharpe, Judge
Representing Appellant:
James E. Gigax of Murr, Siler & Accomazzo, P.C., Denver, CO.
Representing Appellee:
Raymond W. Martin and Jane M. France of Sundahl, Powers, Kapp & Martin,
LLC, Cheyenne, WY.
Before HILL, DAVIS, FOX, and KAUTZ, JJ, and GOLDEN, J., Retired.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] Reiman Corp. (Reiman) hired Adalberto Gonzalez first in April 2007 and then
again in 2008. In 2011, Mr. Gonzalez suffered a work related injury and filed an injury
report with the Wyoming Workers’ Compensation Division (Division). The Division
denied benefits on the ground that Mr. Gonzalez failed to show that he was authorized to
work in the United States, and Reiman and Mr. Gonzalez both appealed that decision to
the Office of Administrative Hearings (OAH). During proceedings before the OAH, Mr.
Gonzalez withdrew his objection to the Division’s denial of benefits, but Reiman
maintained its position that Mr. Gonzalez was an employee, as the Worker’s
Compensation Act defines that term, and was thus entitled to worker’s compensation
benefits.
[¶2] Following an evidentiary hearing, the OAH concluded that although Mr. Gonzalez
had submitted fake work authorization documents, Reiman had a reasonable belief that
Mr. Gonzalez was authorized to work in the United States when it hired him and Mr.
Gonzalez was therefore an employee entitled to worker’s compensation benefits. Mr.
Gonzalez and the Division appealed that determination to the district court, contending
the OAH erred in its interpretation of the term “employee” and that its ruling was
unsupported by substantial evidence. The district court affirmed the OAH ruling, and
Mr. Gonzalez appealed to this Court. We affirm.
ISSUES
[¶3] Mr. Gonzalez states the issues on appeal as follows:
A. Whether W.S. § 27-14-102(a)(vii)’s documentation-
based “reasonable belief” can exist, at the time of hire, when
the employer inspects no documents upon hire.
B. Whether W.S. § 27-14-102(a)(vii)’s “reasonable
belief” in USICS-granted work permission can exist, when
the employer possesses no USCIS documentation.
FACTS
[¶4] Reiman first hired Mr. Gonzalez as a laborer in April 2007 to work on a project at
Buffalo Creek between Dubois and Jackson, Wyoming. Dave Brown was the Reiman
superintendant who hired Mr. Gonzalez, and during an initial hiring meeting with Mr.
Gonzalez, they met in a job trailer at the Buffalo Creek work site. Mr. Brown had Mr.
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Gonzalez complete and sign or initial a number of documents, including an application
for employment, a new hire/rehire report, a W-4 form, and a Form I-9.1
[¶5] During their initial meeting, Mr. Gonzalez also presented work authorization
documents to Mr. Brown, including a social security card and a permanent resident card.
Mr. Brown did not make copies of those documents because the Buffalo Creek work site
did not yet have electricity running to it to allow for the use of a copier. Mr. Gonzalez
confirmed that he presented social security and permanent resident cards to Mr. Brown,
but in the course of his worker’s compensation dispute, Mr. Gonzalez admitted the
documents he presented to Mr. Brown were fake. Mr. Brown did not know the
documents were fake, and Mr. Gonzalez did not tell him they were fake.
[¶6] At some point in 2007, Dave Brown terminated Mr. Gonzalez’s employment with
Reiman. In April 2008, Leo Alvarado, another of Reiman’s superintendants, rehired Mr.
Gonzalez to work on Reiman projects in the Rock Springs/Rawlins area where Mr.
Alvarado was superintendant. At that time, Reiman had a policy that allowed the rehire
of a former employee without completion of hiring documents, including the Form I-9, if
the employee was hired within six months of his last employment with Reiman. The
policy, while it was in place, was intended to accommodate the rehiring of employees
laid off due to weather-related work slowdowns. Pursuant to this policy, Mr. Gonzalez
showed Mr. Alvarado a pay stub showing his recent employment with Reiman, but Mr.
Alvarado did not require Mr. Gonzalez to complete any hiring documents or present work
authorization documents. Mr. Alvarado explained that he took this approach pursuant to
the Reiman rehire policy and because “all the paperwork was already at the office.”
[¶7] Sometime after 2008, Reiman performed an audit of its employment files and
discovered that a number of employees did not have a Form I-9 on file. To remedy the
deficiency, Reiman’s human resources manager informed each superintendant of the
employees for whom Reiman did not have a Form I-9 on file and asked that the
superintendants have those employees complete a new Form I-9. At the time of the audit
and completion of the I-9s, Reiman was consulting with an immigration attorney who had
advised against retaining copies of work authorization documents, such as social security
cards and permanent residence cards. It was therefore Reiman’s policy that the
superintendants not make copies of the work authorization documents they reviewed in
connection with the completion of the new I-9s.
[¶8] Mr. Gonzalez was one of the Reiman employees who did not have a Form I-9 on
file, and in May 2010, superintendant Leo Alvarado had Mr. Gonzalez complete the
form. At that time, Mr. Alvarado checked Mr. Gonzalez’s social security card and
1
A Form I–9 is a federal form used to verify the identity and employment authorization of an individual
hired for employment in the United States. L & L Enters. v. Arellano (In re Arellano), 2015 WY 21, ¶ 4,
344 P.3d 249, 250 n.1 (Wyo. 2015) (citing http://www.uscis.gov/i–9).
2
permanent resident card and listed both documents and their numbers on the Form I-9.
The cards Mr. Gonzalez presented to Mr. Alvarado were the same fake documents he had
shown to Mr. Brown, and like Mr. Brown, Mr. Alvarado did not recognize that the
documents were fake. The completed 2010 Form I-9 was dated May 12, 2010 and was
signed by both Mr. Gonzalez and Mr. Alvarado.
[¶9] On August 30, 2011, Mr. Gonzalez was working on a bridge on I-80 when a
wooden plank on which he was seated broke, causing him to fall about twenty feet to the
concrete below and suffer serious injuries to his face and teeth, and to his right hand and
arm. Mr. Gonzalez filed an injury report with the Wyoming Workers’ Compensation
Division (Division), and on September 29, 2011, the Division issued a final
determination denying benefits. The Division denied benefits because Mr. Gonzalez had
not submitted documentation of his residency and authority to work in the United States.
[¶10] Both Reiman and Mr. Gonzalez objected to the Division’s final determination and
requested a hearing. On November 22, 2011, the Division referred Mr. Gonzalez’s claim
to the Office of Administrative Hearings (OAH) for an evidentiary hearing. The OAH
held an evidentiary hearing on April 9-10, 2013, and at the outset of the hearing, Mr.
Gonzalez, through his counsel, notified the OAH that he was withdrawing his objection
to the Division’s final determination. Reiman maintained its position that Mr. Gonzalez
was entitled to workers’ compensation benefits.
[¶11] On August 14, 2013, the OAH issued its Findings of Fact, Conclusions of Law,
and Order. The OAH concluded that Reiman reasonably believed that Mr. Gonzalez was
authorized to work in the United States and Mr. Gonzalez was therefore an employee as
that term is defined by the Wyoming Workers’ Compensation Act. Based upon its
findings and conclusions, the OAH overturned the Division’s final determination denying
benefits and ordered that the case be returned to the Division.
[¶12] On September 13, 2013, Mr. Gonzalez filed a petition for review in district court,
and on November 12, 2013, the Division entered its appearance in the appeal to the
district court. On December 1, 2014, the district court issued an order affirming the OAH
ruling. Mr. Gonzalez thereafter timely filed a notice of appeal to this Court.2
STANDARD OF REVIEW
[¶13] This Court reviews a district court’s decision on an administrative decision as
though the case came directly from the administrative agency. Stevens v. State ex rel.
Dep’t of Workforce Servs., Workers’ Safety & Comp. Div., 2014 WY 153, ¶ 30, 338 P.3d
921, 928 (Wyo. 2014) (citing Hirsch v. State ex rel. Wyo. Workers’ Safety & Comp. Div.,
2
The Division did not appeal the district court ruling and is not a party to the appeal to this Court.
3
2014 WY 61, ¶ 33, 323 P.3d 1107, 1115 (Wyo. 2014)). Our review is governed by the
Wyoming Administrative Procedure Act, which provides:
(c) To the extent necessary to make a decision and
when presented, the reviewing court shall decide all relevant
questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the
terms of an agency action. In making the following
determinations, the court shall review the whole record or
those parts of it cited by a party and due account shall be
taken of the rule of prejudicial error. The reviewing court
shall:
(i) Compel agency action unlawfully withheld or
unreasonably delayed; and
(ii) Hold unlawful and set aside agency action,
findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion
or otherwise not in accordance with law;
(B) Contrary to constitutional right, power,
privilege or immunity;
(C) In excess of statutory jurisdiction, authority
or limitations or lacking statutory right;
(D) Without observance of procedure required
by law; or
(E) Unsupported by substantial evidence in a
case reviewed on the record of an agency
hearing provided by statute.
Wyo. Stat. Ann. § 16–3–114(c) (LexisNexis 2015).
[¶14] Under the Wyoming APA, we review an agency’s findings of fact by applying the
substantial evidence standard. Jacobs v. State ex. rel. Wyo. Workers’ Safety & Comp.
Div., 2013 WY 62, ¶ 8, 301 P.3d 137, 141 (Wyo. 2013); Dale v. S & S Builders, LLC,
2008 WY 84, ¶ 22, 188 P.3d 554, 561 (Wyo. 2008). Substantial evidence means relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.
Jacobs, ¶ 8, 301 P.3d at 141; Bush v. State ex rel. Wyo. Workers’ Safety & Comp. Div.,
2005 WY 120, ¶ 5, 120 P.3d 176, 179 (Wyo. 2005). “‘Findings of fact are supported by
substantial evidence if, from the evidence preserved in the record, we can discern a
4
rational premise for those findings.’” Kenyon v. State ex rel. Wyo. Workers’ Safety &
Comp. Div., 2011 WY 14, ¶ 11, 247 P.3d 845, 849 (Wyo. 2011) (quoting Bush, ¶ 5, 120
P.3d at 179).
[¶15] Under the substantial evidence standard, a hearing examiner has wide latitude to
“determine relevancy, assign probative value, and ascribe the relevant weight given to the
evidence presented,” including medical evidence and opinion. Spletzer v. Wyo. ex rel.
Wyo. Workers’ Safety & Comp. Div., 2005 WY 90, ¶ 21, 116 P.3d 1103, 1112 (Wyo.
2005) (citing Clark v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 934 P.2d 1269,
1271 (Wyo. 1997)). This Court will only overturn a hearing examiner’s determinations if
they are “clearly contrary to the great weight of the evidence.” Taylor v. State ex rel.
Wyo. Workers’ Safety & Comp. Div., 2005 WY 148, ¶ 16, 123 P.3d 143, 148 (Wyo.
2005) (quoting Hurley v. PDQ Transp., Inc., 6 P.3d 134, 138 (Wyo. 2000)). We
recognize that a hearing examiner may disregard evidence found to be “evasive,
equivocal, confused, or otherwise uncertain.” Id. (quoting Krause v. State ex rel. Wyo.
Workers’ Comp. Div., 803 P.2d 81, 83 (Wyo. 1990)). “If, in the course of its decision
making process, the agency disregards certain evidence and explains its reasons for doing
so based upon determinations of credibility or other factors contained in the record, its
decision will be sustainable under the substantial evidence test.” Dale, ¶ 22, 188 P.3d at
561.
[¶16] The arbitrary and capricious standard of review is used as a “safety net” to catch
agency action that prejudices a party’s substantial rights or is contrary to the other review
standards, but is not easily categorized to a particular standard. Jacobs, ¶ 9, 301 P.3d at
141. “The arbitrary and capricious standard applies if the agency failed to admit
testimony or other evidence that was clearly admissible, or failed to provide appropriate
findings of fact or conclusions of law.” Id. “‘We review an agency’s conclusions of law
de novo, and will affirm only if the agency’s conclusions are in accordance with the
law.’” Kenyon, ¶ 13, 247 P.3d at 849 (quoting Moss v. State ex rel. Wyo. Workers’ Safety
& Comp. Div., 2010 WY 66, ¶ 11, 232 P.3d 1, 4 (Wyo. 2010)).
DISCUSSION
[¶17] An employee is eligible for worker’s compensation benefits only when he or she is
an “employee” as that term is defined by the Wyoming Worker’s Compensation Act.
The Act defines an employee as:
any person engaged in any extrahazardous employment under
any appointment, contract of hire or apprenticeship, express
or implied, oral or written, and includes legally employed
minors, aliens authorized to work by the United States
department of justice, office of citizenship and immigration
services, and aliens whom the employer reasonably believes,
5
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.
Wyo. Stat. Ann. § 27-14-102(a)(vii) (LexisNexis 2015) (emphasis added).
[¶18] It is undisputed that the work authorization documents Mr. Gonzalez presented to
Reiman were falsified and that he was not in fact legally authorized to work in the United
States. Where the parties disagree is on the question whether Reiman reasonably
believed, based on the documentation in its possession, that Mr. Gonzalez was legally
authorized to work in the United States. In this regard, Mr. Gonzalez argues the
§ 102(a)(vii) language emphasized above requires that, in order for an employer to
reasonably believe an employee is authorized to work in the United States, that employer
must have in its possession all documentation required by the federal Office of
Citizenship and Immigration Services (OCIS) and such documentation must be inspected,
completed, and maintained in a manner that complies with all OCIS regulations and
requirements of the Immigration Reform and Control Act of 1986 (IRCA) . Both the
OAH and the district court rejected this reading of the § 102(a)(vii) requirement, and we
do as well.
[¶19] We will first address Mr. Gonzalez’s statutory interpretation argument. We will
then turn to his argument that the evidence was insufficient to support the OAH
conclusion that Reiman reasonably believed he was legally authorized to work based on
documentation in its possession.
A. Statutory Documentation Requirement
[¶20] This Court has in two prior decisions rejected the argument that Wyo. Stat. Ann. §
27-14-102(a)(vii) requires federally-compliant documentation to support an employer’s
reasonable belief that an alien is authorized to work in the United States. See L & L
Enters. v. Arellano (In re Arellano), 2015 WY 21, ¶ 16, 344 P.3d 249 at 253 (rejecting
argument that fake documentation cannot be basis of employer’s reasonable belief);
Herrera v. Phillipps, 2014 WY 118, ¶ 14, 334 P.3d 1225, 1229 (Wyo. 2014) (rejecting
argument that employer must have a properly completed I–9 in its possession to support
reasonable belief). In Herrera, we explained:
The first section of the I–9 is to be filled out and
signed by the employee. Mr. Herrera signed the document.
Someone else filled in the information on his behalf, although
the mandatory “Preparer and/or Translator Certification” was
left blank. The second section of the form is to be completed
and signed by the employer after examining certain specified
6
documents relating to the employee’s authorization to work in
the United States. The second section of Mr. Herrera’s I–9 is
entirely blank, and contains no signature on behalf of
Gilligan’s.
Mr. Herrera emphasizes that the statute requires an
employer’s belief about an employee’s authorization to work
in the United States to be “based upon documentation in the
employer’s possession.” Wyo. Stat. Ann. § 27–14–
102(a)(vii). Because the I–9 is incomplete, he maintains that
Gilligan’s did not have any documentation in its possession
from which it could form any reasonable belief that Mr.
Herrera was authorized to work in the United States. On that
basis, he asserts that the district court erred in granting
summary judgment in Gilligan’s favor, and instead should
have ruled in his favor on that issue.
Mr. Herrera’s argument, taken to its logical limit, is
that an employer must have a properly completed I–9 in its
possession in order to prove that it had a reasonable belief
that an employee is authorized to work. The statutory
language does not allow such an interpretation. The statute
requires a reasonable belief “based upon documentation in the
employer’s possession,” that an employee is authorized to
work. The statute does not specify that the documentation in
the employer’s possession must be a completed I–9,
indicating that other documents could also provide the basis
for a reasonable belief.
Herrera, ¶¶ 12-14, 334 P.3d at 1229 (emphasis added).
[¶21] As is clear from our reasoning in Herrera, we rejected the argument that
§ 102(a)(vii) requires particular documents, completed in a particular manner, to support
an employer’s reasonable belief. We emphasized instead that the question of whether the
documentation is sufficient to support an employer’s reasonable belief is a question of
fact, and we accepted that a fact finder could draw different conclusions from the
incomplete I-9 that was in the employer’s possession in Herrera:
However, the fact that Gilligan’s did not have a
properly completed I–9 for Mr. Herrera, viewed from the
vantage point most favorable to Mr. Herrera, is evidence
suggesting that Gilligan’s did not have a reasonable belief
that Mr. Herrera was authorized to work in the United States.
7
The inference can reasonably be drawn that Gilligan’s failed
to inquire about Mr. Herrera’s status, or even that it knew he
was not authorized to work in the United States and purposely
avoided completing the I–9. Mr. Herrera testified in his
deposition that he was not asked to fill out any paperwork
when he began working for Gilligan’s. He also testified that
the supervisor who drove him to the hospital after the injury
asked, “You’re illegal, aren’t you?” According to Mr.
Herrera, this question indicates that Gilligan’s was aware of
his status, and could not have had a reasonable belief that he
was authorized to work in the United States.
Gilligan’s emphasizes evidence favorable to its
position and unfavorable to Mr. Herrera’s, including the fact
that Mr. Herrera was listed as covered under Gilligan’s
worker’s compensation account. Gilligan’s also points out
that the incomplete I–9 for Mr. Herrera still includes his
signature verifying that he is a lawful permanent alien.
Gilligan’s contends that this is a document in its possession
upon which it based a reasonable belief that Mr. Herrera was
authorized to work. Gilligan’s also relies on Mr. Herrera’s
admission that he had a forged alien registration card and a
social security card. While Mr. Herrera does not remember
presenting this documentation to Gilligan’s when he started
work, he admits that he had the documents with him at the
time. This and other evidence, according to Gilligan’s,
supports its claim to have had a reasonable belief of Mr.
Herrera’s status based on documents in its possession.
Gilligan’s therefore asserts that the district court was correct
in granting summary judgment in its favor.
What Gilligan’s argument actually establishes,
however, is that it has provided sufficient evidence to raise a
genuine issue of material fact, precluding summary judgment
in favor of Mr. Herrera. But as we have previously discussed,
Mr. Herrera has presented evidence conflicting with that of
Gilligan’s. When “the evidence leads to conflicting
interpretations or if reasonable minds might differ, summary
judgment is improper.” Jasper v. Brinckerhoff, 2008 WY 32,
¶ 10, 179 P.3d 857, 862 (Wyo.2008) (citing Abraham v.
Great Western Energy, LLC, 2004 WY 145, ¶ 12, 101 P.3d
446, 452 (Wyo.2004)). Summary judgment should not have
been granted in this case. Genuine issues of material fact
8
exist. At trial, the fact finder must determine whether
Gilligan’s had a reasonable belief, based on documentation in
its possession, that Mr. Herrera was authorized to work in the
United States. If the fact finder determines that it did have a
reasonable belief, then Mr. Herrera fits within the Wyoming
Worker’s Compensation Act definition of an employee, and
Gilligan’s is immune from his claims. If Gilligan’s did not
have such a reasonable belief, then Mr. Herrera is not an
employee under the Wyoming Worker’s Compensation Act,
and Gilligan’s is not immune from his claims.
Herrera, ¶¶ 15-17, 334 P.3d at 1229-30.
[¶22] In our subsequent decision in Arellano, we discussed the legislative intent
underlying the § 102(a)(vii) reasonable belief requirement, and we again declined to add
language that would infuse the section with federal documentation requirements.
We find the language of § 27–14–102(a)(vii) to be
clear, unambiguous and straightforward. It plainly requires
only that an employer reasonably believe, based upon
“documentation” in its possession at the date of hire and at
the date of injury, that the employee is authorized to work in
the United States. The language regarding the authenticity of
documents and truth of representations that L & L urges us to
read into the statute is simply not there. Stutzman v. Office of
Wyoming State Eng’r, 2006 WY 30, ¶ 16, 130 P.3d 470, 475
(Wyo.2006) (“We will not insert language into a statute that
the legislature omitted.”).
Interpreting this statute in any other way would render
the language added in 2005 meaningless. See McTiernan v.
Jellis, 2013 WY 151, ¶ 20, 316 P.3d 1153, 1159–60
(Wyo.2013) (statutes must be construed so that no portion is
rendered meaningless and interpretation should not produce
an absurd result). If we accepted L & L’s argument that
Arellano’s fake social security card does not qualify as a
“document,” and that its belief of his status to work in this
country cannot be reasonable when false information led to
that belief, the language added in 2005 would serve no
purpose.
This is so because any alien producing valid written
authorization to work in the United States would satisfy the
9
longstanding language of § 27–14–102(a)(vii), which applies
to “aliens authorized to work by the United States department
of justice, office of citizenship and immigration services....”
The language added in 2005—“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”—
would be meaningless, as it would equate to the requirements
of the preceding sentence. We are not free to ignore words the
legislature used in a statute, and we would have to do so to
interpret this language as Appellant argues we should. In re
Guardianship of McNeel, 2005 WY 36, ¶ 11, 109 P.3d 510,
513 (Wyo.2005) (citing Keats v. State, 2003 WY 19, ¶ 28, 64
P.3d 104, 113 (Wyo.2003)).
We believe the legislature intended the result we and
the district court have reached, and conclude that the 2005
amendment was intended to protect employers from being
sued in tort by illegal aliens who obtained employment using
false documents and information. See 5 Arthur Larson & Lex
K. Larson, Larson’s Workers’ Compensation Law § 66.03
(2014) (“Employment of Illegal Aliens”). 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 coemployees 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.
It is most likely that the legislature sought to limit the
exposure of employers who reasonably believe an employee
is authorized to work here even when he is actually not. A
reasonable but mistaken belief would almost necessarily be
based on false documents and representations. On the other
hand, the legislature evidently intended to expose employers
who knew they had hired illegal aliens to tort liability,
perhaps as a deterrent.
10
Arellano, ¶¶ 16-20, 344 P.3d at 253.
[¶23] We adhere to our holdings in Herrera and Arellano. Wyo. Stat. Ann. § 27-14-
102(a)(vii) does not incorporate federal requirements that dictate what documents an
employer must have in its possession when hiring an alien. Nor does it incorporate
federal requirements detailing how those forms must be completed and when and how
inspections of those documents must occur. The question the statute imposes for the fact
finder is simply whether the documents in the employer’s possession, whatever those
might be, support the employer’s reasonable belief, both at the time of hiring and injury,
that the injured employee was legally authorized to work in the United States. As the
district court correctly observed:
With any amount of documentation present, the fact finder
can weigh the evidence and determine whether a certain
number of documents corroborated by a certain amount of
testimony is enough to form the required reasonable belief of
authorization.
[¶24] We turn then to whether substantial evidence supports the OAH conclusion
Reiman reasonably believed that Mr. Gonzalez was legally authorized to work in the
United States at the time of his hiring and injury based on the documents in Reiman’s
possession.
B. Substantial Evidence Supporting Employer’s Reasonable Belief
[¶25] The OAH hearing examiner found the testimony of Mr. Gonzalez’s
superintendants, Dave Brown and Leo Alvarado, to be credible. In contrast, the hearing
examiner found Mr. Gonzalez’s testimony “to be without credibility in nearly every
aspect.” Mr. Gonzalez does not contest the deference that must be afforded this
determination. In fact, in his opening brief, he concedes that if this Court accepts the
view that § 102(a)(vii) does not incorporate federal documentation requirements, “then
this appeal can be rejected forthwith, deferring to the OAH credibility determinations.”
Affording the hearing examiner’s credibility determinations the due deference that all
parties agree must be afforded those determinations, we conclude, as Mr. Gonzalez
anticipated we would, that the OAH’s reasonable belief determination is supported by
substantial evidence.
[¶26] Reiman superintendant Dave Brown testified that when he hired Mr. Gonzalez in
2007, Mr. Gonzalez showed him both a social security card and a permanent resident
card, and he had Mr. Gonzalez complete and sign an I-9, a new hire/rehire report, an
employment application and a W-4. Mr. Brown further testified that he saw nothing in
Mr. Gonzalez’s work authorization documents that caused him to question their
11
authenticity and that he at no time received information that Mr. Gonzalez was not
legally authorized to work in the United States.
[¶27] When Reiman superintendant Leo Alvarado hired Mr. Gonzalez in 2008, he did so
pursuant to the Reiman policy that allowed the rehire of a former employee without
completion of hiring documents, knowing that “all the paperwork was already at the
office.” The record shows that at that time, Reiman in fact had in its possession Mr.
Gonzalez’s 2007 employment application, his 2007 new hire/rehire report, and his 2007
W-4. On Mr. Gonzalez’s 2007 employment application, he listed his social security
number and confirmed that he was authorized to work in the United States. On his new
hire/rehire report and his W-4, Mr. Gonzalez likewise listed the same social security
number.3 Finally, Mr. Alvarado testified that he was Mr. Gonzalez’s superintendant from
2008 until his date of injury in 2011 and he never received any information or indication
that Mr. Gonzalez was not authorized to work in the United States.
[¶28] Based on the documentation in Reiman’s possession when Mr. Gonzalez was
hired in 2008, we affirm the OAH determination that Reiman had a reasonable belief that
Mr. Gonzalez was authorized to work in the United States when it hired him in 2008. In
so concluding, we reject Mr. Gonzalez’s assertion that Reiman had an obligation to
inspect the documents in its possession upon Mr. Gonzalez’s rehiring in 2008. By its
plain terms, Wyo. Stat. Ann. § 27-14-102(a)(vii) does not impose such an obligation.
Reiman hired Mr. Gonzalez pursuant to a rehire policy that presumes possession of the
appropriate hiring documents based on the short period between employment termination
and rehire. We cannot say that such a policy is per se unreasonable or runs afoul of the
statutory documentation requirement.
[¶29] We turn next to the evidence supporting Reiman’s reasonable belief of Mr.
Gonzalez’s work authority on the date of his 2011 work injury. In 2010, Mr. Gonzalez
completed an I-9, and at that time he showed Mr. Alvarado his social security card and
permanent resident card, both of which Mr. Alvarado believed to be authentic. Thus, at
the time of Mr. Gonzalez’s 2011 work injury, Reiman had in its possession both the 2007
documents and the 2010 I-9, which listed the numbers from both Mr. Gonzalez’s social
security and permanent resident cards. Additionally, Reiman filed and had in its
possession W-2 forms for Mr. Gonzalez for the years 2008 through 2011. Based on the
foregoing, substantial evidence supports Reiman’s reasonable belief that Mr. Gonzalez
was legally authorized to work in the United States on the date of his 2011 work injury.
3
Reiman does not have in its records the Form I-9 that Mr. Gonzalez completed in April 2007. An
internal audit of the Reiman employment files revealed several missing I-9s. Reiman’s human resources
manager testified that she found no discernible pattern in the missing I-9s, and those missing included
some from employees without a hispanic surname, such as Tom Reiman, the company CEO, and Valerie
Reiman, the CFO’s daughter.
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CONCLUSION
[¶30] The OAH conclusion that Mr. Gonzalez was an employee as defined by the
Wyoming Worker’s Compensation Act is in accordance with law and supported by
substantial evidence. We therefore affirm the district court order affirming the OAH
order awarding benefits. 4
4
Reiman pointed out violations of Rules W.R.A.P. 3.05, 7.01, and 10.01 in the failure of Appellant’s
counsel to timely designate the portions of the record to which he directed this Court’s attention and the
failure to attach the required appendices to the brief of Appellant. Because we have affirmed, we do not
address this separately raised issue, but we caution counsel to be mindful of these requirements.
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