Mar 20, 2021 | Civil Rights Law, Discrimination, Employee Rights
If you ever feel that your rights have been violated by an employer or think you may need to consider legal action against a current or former employer, it may be important for you to obtain your personnel files. Those files may contain information that helps you prove discrimination, harassment, or other civil rights violations. It could also help you prove that the reasons an employer has provided for adverse employment action against you are untrue. Employers should not make it difficult for you to get that kind of information. While there is no federal law requiring employers to give employees access to personnel files, Colorado does have a law that affords you a right to obtain your personnel file.
In 2016, Colorado passed House Bill 16-1432 that requires private sector employers to allow current employees access to their personnel files once a year, and former employees one-time access after leaving employment. (If you are a public employee, you are already allowed access to your personnel files through the Colorado Open Records Act.)
C.R.S. § 8-2-129, provides, in part:
“Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect and obtain a copy of any part of his or her own personnel file or files at the employer’s office and at a time convenient to both the employer and the employee. A former employee may make one inspection of his or her personnel file after termination of employment. An employer may restrict the employee’s or former employee’s access to his or her files to be only in the presence of a person responsible for managing personnel data on behalf of the employer or another employee designated by the employer. The employer may require the employee or former employee to pay the reasonable cost of duplication of documents.”
It should be noted that this law doesn’t apply to financial institutions chartered and supervised under state or federal law, such as banks, trust companies, savings institutions, and credit unions.
What exactly are personnel files?
The term personnel file is defined in this law as “the personnel records of an employee … that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action.”
However, it does not include all records. Pursuant to the law, your employer is not required to give you access to the following documents:
- Documents required by state or federal law to be maintained in a separate file (such as medical or FLMA documents)
- Confidential reports from the employee’s previous employer
- Documents pertaining to an active criminal investigation
- Documents pertaining to an active disciplinary investigation
- Documents pertaining to an active investigation by a regulatory agency
- Documents identifying a person who made a confidential accusation (as determined by the employer) against the employee requesting the personnel files.
Is my employer required to create or keep these files?
Not necessarily. The new law does not require employers to create or maintain records that they do not already keep in the course of running their business. Some employers may not do performance reviews or keep anything but basic contact and tax information on their employees, as a matter of practice. This law does not require them to change those practices. The statute does not do any of the following:
-
Create a private cause of action, (meaning it does not create a new way for you to sue)
-
Require employers to create, maintain, or retain personnel files of employees or former employees
- Create any new record retention requirements.
Since this particular law does not require employers to retain any personnel files, it is imperative that you request them as soon as possible. While most companies already have their own policies in place regarding the retention of records (and institutions may be penalized for not retaining records once they are put on notice that litigation is imminent), it is often necessary to review your personnel records to know whether you have a good case or whether litigation is in your best interest. Either way, it is a good practice to review your personnel files after leaving a job.
If you are a current employee — regardless of whether you have any issues at work or not — it’s good practice to review your performance reviews and similar files (promotions, transfers, demotions, etc.). If you are ever written up or have an incident with another employee (unless confidential), request copies of those documents as well. Finally, if your employer has done something to make you think your rights have been violated, let them know — preferably in writing (so that there is a record of your concern). It would be a violation of your rights for them to retaliate against you for this. This could trigger the responsibility for your employer to retain all related records (not just personnel records).
How do I get access to my personnel files?
You ask for them. However, while an employer is required to give you access upon request, you cannot expect an employer to drop everything and provide you this kind of information, at any time, unannounced. An employer may take a reasonable amount of time to respond to a request. The best thing to do is contact them by email so you have a record of all communication. If the employer has a human resources department, contact them first. If there is no HR department, then email your supervisor and/or a person whom you believe has control over personnel files. Many employers have a specific form to fill out for access to your files. Once they send the form to you, return it to them by email/fax (if possible) so that you again have a record of it. If you fill it out on a website, see if there is an option to print the form so you have a record of submitting it.
It is always a good practice to create a paper trail if anything you do might be questioned or otherwise might become evidence in a lawsuit. If you are involved in any kind of dispute with your employer, keep a record of everything. Sometimes you must be the one to document issues, record conversations, or otherwise gather evidence necessary for an attorney to advocate for you later.
Additional details set forth by this law, include:
- Current employees can request copies of personnel files at least annually and an ex-employee can request access to their files once after termination of employment
- The inspection and copying shall occur at the employer’s office.
- The inspection must be at a time that is convenient to both the employee and employer.
- The employer can require the inspection to occur in the presence of another person designated by the employer.
- The employer may require the employee to pay the reasonable costs of duplication of documents.
If the employer refuses to give you access to your personnel files, file a complaint with the Colorado Department of Labor.
What if I disagree with what’s in my personnel files?
If you disagree with something in a performance review or an action taken by your employer, such a disciplinary action, you have the right to submit a response to be included in your personnel file. This does not imply any agreement on their part, but you and the employer may, obviously, see things differently. An employer should keep this as part of the records related to issue that prompted your response. Again, it is always a good idea to put everything in writing so that there’s a record of it
Finding the best civil rights attorney when you have a dispute with an employer
If you have been the victim of discrimination, retaliation, or harassment from an employer, you have rights. But it is important to act quickly because certain legal or regulatory deadlines may apply and many claims have a statute of limitations. Call the Civil Rights Litigation Group at 720-515-6165, or use our online contact form, to schedule your free consultation with us today. We’ll aggressively fight for you in court and make sure your rights are protected and you are treated fairly.
Jul 21, 2020 | Civil Rights Law, Constitutional Rights, Employee Rights
Amidst all the civil rights protests lately, one divisive topic has emerged: Is it a violation of my civil rights for the government to require me to wear a face mask in public? In short, probably not. Because of the rapid increase in Covid-19 infections, many states have issued temporary laws, requiring all citizens (over the age of 11, in Colorado) to wear face masks. In Colorado, it applies while “entering or moving within any public indoor space [or] while using or waiting to use public (buses, light-rail) or non-personal (taxis, car services, ride-shares) transportation services.” You aren’t required to wear them in private residences or when outdoors, unless you are waiting for public transportation. Given the public-available data on the Covid pandemic, face-mask orders probably bear a reasonable relationship to the emergency and are probably legal, based on pre-existing case law.
Does the government have the legal authority to mandate face masks?
Probably. Since we are in the middle of a public health emergency, state and local officials have the authority to issue and enforce reasonable rules of safety. According to Colorado Attorney General Phil Weiser, “This has been upheld repeatedly. No one has the right to expose the community to communicable disease.” Likewise, Colorado Governor Jared Polis has emergency powers that grant him the right to issue the face mask mandate, and that authority is upheld by the Colorado state constitution (Article IV, Section 2). A law passed by the legislature: Colorado Disaster Emergency Act, CRS 24-33.5-701 also supports this.
A state government’s power to issue orders that are reasonably related to the protection of other citizens during public health emergencies has also been upheld by the Supreme Court. This has been the case since 1905, when the Supreme Court ruled on Jacobson v. Massachusetts. The case involved a smallpox outbreak and local authorities mandated that everyone had to be vaccinated against it or risk a fine (unless medically unable to do so safely). The court upheld this authority, saying, “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
“The public health expert consensus is that wearing a mask in public is a key countermeasure in combating the coronavirus pandemic because it helps slow the infection rate. Even cloth face masks can help curb community spread of coronavirus, in part by reducing transmission by people who are infected but experience no symptoms. The coronavirus pandemic is the kind of extraordinary circumstance when the public good outweighs individual inconvenience.” (Law.com)
To date, over 500,000 Americans have died from Covid-19, so it is likely within each state government’s authority to mandate necessary requirements issued for the purpose of protecting the health and safety of those who have not yet been infected, so long as those requirements relate directly to the cause at hand. Since Covid-19 has been shown to be spread by people breathing out tiny droplets that may contain the virus, face masks are likely to be considered a reasonable precaution. Face mask requirements are even more likely to be considered reasonable considering that many people who have the virus are asymptomatic and may unknowingly spread it to others. To date, the Supreme Court has had the opportunity to revisit this issue, several times, but has declined in all but religious liberty cases, where certain government’s have been deemed to have applied face mask mandates inequitably to religious institutions and/or religious activates, as compared to similarly situated secular institutions/activities.
Can I be required to wear face mask if I have a medical condition?
For those people “who cannot medically tolerate a face covering,” the ADA (Americans with Disabilities Act) requires that businesses, government entities, etc. make reasonable accommodations. Those may include offering delivery or curb-side pickup of things like groceries and goods, or offering online options for accessing services such as renewing a license. However, they aren’t required to allow you in their space without a mask, as that could endanger others.
The definition for those medically exempt from the order is pretty narrow: “a person who has trouble breathing or anyone who is unconscious, incapacitated, or otherwise unable to remove the cloth face-covering without assistance.” It doesn’t include people who believe the mask will cause them to breathe in carbon dioxide or lower their oxygen levels.
The ADA has also issued a warning against using fake mask exemption cards that have flooded the internet. “The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.” (ADA website)
Can a business refuse me entry if I won’t wear a mask?
Not only can a business refuse you entry, but they may be required to as they are responsible for upholding the state and local laws for face masks and other safety measures. Again, they have to make reasonable accommodations for those with disabilities, so if you suffer from a disability, you should be prepared to make a specific request for accommodation that will not create an undue burden on the business. But as long as the business is enforcing the mask requirement equally to everyone, they are probably not violating your rights. Businesses are also required to post signage stating that masks are required. If you attempt to enter a business without a mask, you could be subject to allegations of trespassing. Likewise, businesses that do not enforce the ordinance may lose their license.
Can my employer require me to wear face masks?
Because of the mandate, employers must require all employees to wear masks. They have to make reasonable accommodations for employees with disabilities and should offer protection to those at a greater risk of severe illness due to Covid-19. Some employers may require employees to wear additional protective gear, such as gloves, and some are required to per Public Health Order 20-31.
If you are in a job that requires specific high-end protective gear like N95 masks, employers in Colorado are required to provide them. For all other businesses, government entities, etc. the Safer at Home public health order from March states that employers shall “provide appropriate protective gear like gloves, masks, and face coverings.” The newest public health order states that employers “should” provide protective equipment, but doesn’t specifically mandate it.
Regardless, employers are still required to provide workplaces “free from recognized hazards likely to cause death or serious physical harm” under the Occupational Safety and Health Act’s General Duty Clause. This is interpreted differently for each business and can include things like putting up clear barriers to protect employees who come in close contact with the public.
Other resources on our blog:
Additional resources:
Face-Covering Requirements and the Constitution
Colorado Mask Order: When Do I Need To Wear A Face Covering? (And More Mask Questions Answered)
Questions & answers about the statewide mandatory mask order
Considerations for Wearing Cloth Face Coverings
Feb 22, 2017 | Employee Rights
When informing the authorities or others regarding your employer’s illicit or illegal activity, you have certain protections under Federal and Colorado state laws. At the Civil Rights Litigation Group, we understand that being a whistleblower is no easy task, and although you have rights that protect against retaliation, your employer may still try to retaliate against you.
Whether your issue involves a layoff, changes in work schedules, “blacklisting,” cuts in hours, and more, you can call Denver CO civil rights and whistleblower attorney Raymond K. Bryant today. We offer free consultations, and, if we decide to take your case, we’ll employ a vast network of resources, diligent investigation, and vigorous representation to make sure that your rights are protected.
In the meantime, you can learn more about whether or not you qualify as a whistleblower below.
Federal whistleblower laws and you
If you feel that an employer is retaliating against you for whistleblowing, the federal agency known as the Occupational Safety and Health Administration (OSHA) may be on your side. Whistleblowing is an employee right, and OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistleblower statutes. These statutes protect employees who report violations of the law regarding the following:
- Workplace safety and health
- Airline
- Commercial motor carrier
- Consumer product
- Environmental
- Financial reform
- Food safety
- Health insurance reform
- Motor vehicle safety
- Nuclear
- Pipeline
- Public transportation
- Railroad
- Maritime
- Securities
Regarding the OSHA, Section 11(c) of the OSH Act prohibits employers from discriminating against their employees for exercising their rights (detailed under the OSH Act). The rights detailed under this Act include, but are not limited to, worker protections when participating in an inspection or talking to an inspector, seeking access to employer exposure and injury records, reporting an injury, and raising a safety or health complaint with the employer.
It is also important to note that whistleblowers are protected under the federal False Claims Act, and whistleblowers can report securities fraud (SEC and CFTC) and illegal actions involving the IRS.
Federal employers, on the other hand, can refer to the Whistleblower Protection Act of 1989. This Act only protects federal employees who report agency misconduct, such as illegal practices, gross mismanagement, abuse of authority, or practices that endanger public health.
Whistleblowing and retaliation
Naturally, some employers who willfully and intentionally engage in misconduct won’t be too happy when an employee reports the illegal activity. As such, some employers may wish to retaliate against whistleblowers through some of the following methods:
- Blacklisting
- Demotion
- Firing
- Denying overtime or promotion
- Denial of benefits
- Making threats, intimidation, or harassment
- Reducing pay
- Reassignment to a less desirable position
Additionally, it’s important to note that, when reporting to OSHA, workers who have been retaliated or discriminated against must file a complaint within 30 days of the alleged adverse action. Some types of complaints, such as those that apply to the Energy Reorganization Act or the Federal Railroad Safety Act, allow up to 180 days to file.
OSHA enforces many of the retaliation laws, but because Colorado is a federal-OSHA, retaliation protections apply to federal employees as well as private sector employees where the employer has more than 10 employees.
Do you qualify as a whistleblower?
So, now that you know some of the basic protections regarding whistleblowers in Colorado, the question remains, “Do you qualify as a whistleblower?”
Fortunately, the answer is quite broad, as, depending on the illegal activity being reported, a whistleblower can be a public or private employee, a contractor or a subcontractor, or even a non-employee who can document fraud against Colorado or local governments. Regardless of the illegal activity or fraud that you are reporting, there are some general guidelines that show who has a better opportunity for success when whistleblowing. These guidelines include:
- The whistleblower has actual knowledge of the illegal act, not just hearsay or suspicion
- The whistleblower can provide hard evidence of the illegal activity, such as emails or internal documents, among others
- The evidence is specific and details the “who, what, when, and where”
- The whistleblower’s information must be original; it cannot come from a publicly disclosed source
Contact the Civil Rights Litigation Group today
If you are unsure about whistleblowing, you feel that you need strong legal backing on your side, or you are experiencing retaliation for exercising your rights, then don’t hesitate a second longer and call Denver CO employee rights attorney Raymond K. Bryant at the Civil Rights Litigation Group. By calling us for a free, no-obligation consultation, we will carefully and compassionately (and confidentially) listen to your case and determine whether you have a whistleblower case. If so, we will vigorously and relentlessly pursue your claims to the fullest extent of the law.
Jan 27, 2017 | Employee Rights
Every worker in Colorado, and throughout the United States, deserves to paid for the work that he/she conducted. When workers are required (or voluntarily) to work overtime, they also deserve the necessary overtime pay. Unfortunately, there have been many cases right here in Denver where employers didn’t pay their employees’ the correct wages as well as overtime wages, resulting in unpaid overtime.
In Colorado, state and federal laws determine how much (and when) an employee must be paid. However, if your employer hasn’t paid the correct wages or overtime wages, you need to contact the leading Denver unpaid wages attorney as soon as possible. At the Civil Rights Litigation Group, we’re experienced employee rights and trial attorneys, and we boast the know-how and litigation strategies to fight against workplace injustices. Don’t ignore unpaid overtime, and call attorney Raymond K. Bryant at (720) 515-6165.
In the meantime, you can learn more about unpaid overtime below.
Unpaid overtime and wages
For every hour that an employee works, he/she is rightfully owed at least the minimum wage. In Colorado, that minimum wage is $9.30 per hour. Although the federal minimum wage is $7.25, any employee working in Colorado is owed the state minimum wage. In cases where the city or county minimum wage is higher than the state minimum wage, employees are owed the higher amount. If your employer has underpaid you, such as by paying the federal minimum wage, you may have an unpaid wage claim.
Unpaid wage claims do occur, but the most common type of employee wage violation is unpaid overtime. In short, employees in Colorado are entitled to overtime if they work more than 40 hours a week, more than 12 hours a day, or more than 12 consecutive hours. For overtime hours, employers must pay their employees time-and-a-half, which equates to an extra 50% of your hourly rate on top of your regular pay. This means that if you’re paid $10/hr, your overtime pay is $15/hr.
If your employer has failed to pay you adequate overtime hours, the unpaid overtime equals the difference between what you should have been paid and what you were paid.
Exemptions to overtime pay
Not all employees are entitled to overtime pay. Hourly, non-exempt employees have a legal right to overtime, but exempt employees might not be able to claim overtime. The most common examples include outside salespeople as well as white-collar employees who conduct managerial or high-level administrative work. Other exempt employees include:
- Salespersons, parts-persons, and mechanics employed by automobile, truck, or farm implement (retail) dealers
- Salespersons employed by trailer, aircraft, and boat (retail) dealers
- Sales employees of retail or service industries paid on a commission basis
- Employees of the ski industry performing duties directly related to ski area operations for skiing or snowboarding
- Employees of the medical transportation industry who are scheduled to work 24-hour shifts
Penalties for unpaid overtime and wages
If your employer has failed to pay your overtime wages, your employer may be susceptible to certain penalties under federal or Colorado law. These penalties are typically added to the wage difference that the employer owes his/her employee. For instance, federal laws state that employees have the right to ask for liquidated damages regarding overtime wage violations. These liquidated damages are designed to cover financial losses, such as bounced checks and late charges.
Colorado law also provides when the employee’s final paycheck doesn’t arrive on time or include everything that the employee is owed. For instance, if your final paycheck doesn’t include the overtime wages, you may be entitled to 125% of the unpaid wages for the first $7,500 owed and 50% of the unpaid wages for any amount owed over $7,500.
How to file a wage claim or lawsuit
When you’re working overtime, you deserve every penny that you’re owed by your employer. As such, if your employer is shorting your paycheck by avoiding legally owed overtime wages, then you need to contact a Denver employee rights attorney as soon as possible. With the guidance and counsel of your attorney, you can file a complaint about unpaid overtime with the Colorado Department of Labor and Employment (CDLE); you can also file a lawsuit in court.
Contact the wage and hour law attorneys at the Civil Rights Litigation Group
It’s important to acquire expert legal help when filing a complaint with the CDLE or filing a lawsuit in court. At the Civil Rights Litigation Group in Denver, CO, we have helped numerous individuals with their wage and unpaid overtime claims, and we boast the resources and know-how to help you too.
If your employer hasn’t paid you the amount that you’re owed, then call Denver attorney Raymond Bryant at the Civil Rights Litigation Group today! Call 720-515-6165.
Nov 23, 2016 | Employee Rights
Colorado, like many states, has comprehensive laws and regulations designed to protect employees from malicious employment practices, such as undercutting employee wages or foregoing overtime payments to employees. Although the vast majority of employees in Colorado receive at least minimum wage as well as “time and a half” overtime pay, there are certain types of employees who are exempt from overtime, minimum wage laws, or both. If you’re not receiving appropriate overtime wages or minimum wages, then you need to first make sure that you haven’t been misclassified as an exempt employee.
If you are not exempt, then you are owed appropriate overtime as well as minimum wage. As Denver CO employee rights attorneys, we at the Civil Rights Litigation Group aim to fully protect employees from violations of overtime and wage laws, and we’ll diligently and expertly represent your claims in Colorado civil courts. Remember that misclassified, non-exempt employees may be entitled to thousands of dollars in unpaid overtime and other wages.
For victims of wage or overtime violations, make sure to call our Denver law office today for a confidential, free consultation. In the meantime, you can learn more about employee exemptions in Colorado by reading below.
Are you an exempt or non-exempt employee?
The federal law regarding wage and overtime regulations for employees is the federal Fair Labor Standards Act (FLSA). Colorado also has several similar laws. To understand whether you’re an exempt or non-exempt employee, it’s important to look at the FLSA as well as Colorado’s laws.
The federal law, FLSA, applies to most employers in Colorado who have annual sales or revenue of over $500,000. At the same time, both large and small businesses in Colorado must comply with Colorado state laws and regulations, such as the Colorado Minimum Wage Order. Ordinarily, overtime is defined as working over 40 hours in a work week. Under Colorado laws, overtime is also defined as working more than 12 hours in a day or a shift. Additionally, the law states that overtime pay must be one and a half times the employee’s regular rate of pay.
Overtime and exemptions from the Colorado wage order
The overtime and minimum wage laws defined above only apply to non-exempt employees. Section 5 of Colorado’s Wage Order sets the legal exemptions for certain occupations and professions. These include administrative, executive/supervisor, professional, outside sales employees, and elected officials and their staff. Other exemptions include:
- Companions
- Casual babysitters
- Domestic employees employed by households or family members to perform the following duties:
- Duties in private residences
- Property managers
- Interstate drivers
- Driver helpers
- Loaders or mechanics of motor carriers
- Taxi drivers
- Bona fide volunteers
- Students employed by sororities, fraternities, college clubs, or dormitories
- Students employed by work experience study programs
- Employees working in laundries of charitable institutions which pay no wages to workers and inmates
- Patient workers who work in institutional laundries
Exemptions from overtime
Section 6 of the Wage Order explains various professions and occupations that are exempt from the Colorado overtime laws. Exemptions from all or part of the overtime requirement may include commission sales, the ski industry, and medical transportation. These exemptions are explained below:
Commission sales exemptions — Employees who receive commissions are exempt from overtime as long as 50% (or more) of their total earnings in a pay period are derived from commission sales. Their rate of pay must also be at least one and a half times greater than the minimum wage.
Ski industry exemptions — Employees who work in ski area operations for downhill skiing or snowboarding are exempt from the overtime requirements. This includes employees who provide food and beverage services at on-mountain locations.
Medical transportation exemptions — Employees of medical transportation operations who work 24-hour shifts are exempt from the 12-hour overtime regulation as long as they receive overtime for working more than 40 hours in a week.
Consequences for misclassified exempt employees
Assuming a worker is exempt from overtime, even though that employee is not exempt, can present significant consequences for the employer. According to federal laws, if an employer doesn’t pay a non-exempt employee legal overtime wages, then that employer may be liable for the underpayment, “liquidated damages” in an equal amount, and even the employee’s attorney fees. Also, it’s important to note that in cases of good faith, where the employer made an honest mistake, some courts will rule that ignorance of exemption requirements is not an excuse.
Also, the employer can get into more trouble, increasing his/her liability, by engaging in any form of retaliation against an employee who claimed overtime.
Call the Civil Rights Litigation Group to protect your overtime rights
As the leading civil rights and employee rights attorney in the Denver, CO, area, attorney Raymond K. Bryant understands the full scope of Colorado and federal employment laws. In addition to helping you know whether or not you were exempt, the Civil Rights Litigation Group will work with you, one-on-one, with the goal of holding responsible individuals accountable for their actions (if they are liable, that is).
To speak with attorney Bryant regarding your case, call our Denver law office today at 720-515-6165 for a free, no-obligation consultation.
