Apr 26, 2021 | Civil Rights Law, Employee Rights
Despite the passage of the federal Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, pay disparities continue to exist for women, especially women of color. Studies show that women typically earn 86 cents for every earned by a man, with Black women earning 63 cents and Hispanic women earning only 53 cents for every dollar earned by a white man. To help close the pay gap, the Colorado Legislature passed the Equal Pay for Equal Work Act (EPEWA), which went into effect on January 1, 2021. The intent of the act is to help “… close the pay gap in Colorado and ensure that employees with similar job duties are paid the same wage rate regardless of sex, or sex plus another protected status.”
The EPEWA applies to all public and private employers in Colorado, regardless of how many employees they have.
What does the Equal Pay Act do?
Aside from requiring employers to give their female employees equal pay, the act also gives employees more rights with regards to their compensation:
- Employers can’t prohibit employees from discussing compensation or punish them for doing so.
- Employers can’t ask about a job candidate’s wage history and/or use that wage history to determine an employee’s salary.
- Employers will have to make reasonable efforts to “announce, post, or make known all opportunities for promotion” to all current employees on the same calendar day.
- All job postings must contain salary and benefits information.
- Employers must keep records of job descriptions and wage history for each employee while employed and for two years after termination.
Employers are now prohibited from requiring employees to disclose their wage history and/or using that to determine their compensation. This will give women more opportunities to increase their pay by eliminating the cycle of moving from one low-paying job to another. Also, allowing employees to discuss compensation without retaliation removes the veil of secrecy that often hides male employees receiving higher pay for similar jobs. Basically, it increases transparency and equality.
Exceptions to the Equal Pay Act
While employees are protected against any sex-based pay discrimination for work requiring similar skill, effort and responsibility, the law does permit pay differences arising from:
- A seniority system
- A merit system
- A system that measures earnings by quantity or quality of production
- The geographic location where the work is performed
- Education, training, or experience reasonably related to the work
- Travel that is a regular and necessary condition of the job
However, the law also states that employers must prove that they “reasonably” relied on any of these exceptions they use when determining salary. If an employer is going to pay a male employee more because he has more education, they have to prove that the additional education makes a difference in job performance.
How the Equal Pay Act helps your claim
One of the main things the Equal Pay Act does is require employers to keep records of all job descriptions and wage histories for the duration of each employee’s employment, and for at least two years after that. This includes hourly rate or salary range, plus all benefits and other compensation offered to the employee. Failure by the employer to maintain these records creates a rebuttable presumption that the records not maintained contained information favorable to the employee’s claim in a lawsuit.
The EPEWA also provides a right of action that allows employees to sue for up to three years of backpay for unlawful pay disparities. Employees may also receive additional damages if an employer is shown not to have acted in “good faith” when determining compensation. Finally, employees can sue for attorney fees, reinstatement, promotions, pay increases, and other legal relief.
What can you do if you believe you have been unfairly paid?
If you feel you have been the victim of pay discrimination, you need to act quickly because there is a two-year window (after you leave your job) when you can file a claim. Beyond that, compile all your employment records, including reviews and pay history. If you don’t have these records, you have the right to request them from your employer (see our post: You have a right to your personnel files).
After that, you need to find an attorney who is experienced in fighting workplace discrimination. 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.
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:
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Create a private cause of action, (meaning it does not create a new way for you to sue)
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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.
Nov 28, 2020 | Civil Rights Law, Constitutional Rights, Police Misconduct
When people think about police misconduct, the first thing that comes to mind is usually police brutality — and that’s understandable considering the vast amount of press coverage from cases like George Floyd this year. But there are many other ways that the police can and have engaged in illegal conduct and have violated people’s civil rights. It is important to understand what they can and can’t do so that you can protect yourself.
Witness tampering and police misconduct
There have been many examples of the police getting caught in bad situations and then attempting to coerce witnesses to change how the evidence looks – for the police and the people police arrest. In Maui in 2015, Anthony Maldonado was accused of stealing $1800 from a person he had stopped. That right there is a crime, but after the victim reported it, Maldonado and several other officers tried to bribe the person to withdraw the complaint. Maldonado eventually pled guilty to witness tampering.
It is absolutely illegal for an officer to attempt use their power or authority as a police officer to attempt to get a witness to change their true testimony to something false or to unduly influence a complaining party to withdraw a complaint. But it happens all the time as officers have power and many people fall victim to their threats.
This type of misconduct can lead to criminal sanctions and even civil rights lawsuits for damages, if the conduct violates a persons’ constitutional rights.
Planting or fabricating evidence
If a case isn’t looking the way an officer thinks it should, they may decide to plant, fabricate, remove, or lie about evidence. One such example involves Richard Pinheiro, an officer in the Baltimore Police Department. His body camera actually caught him tampering with evidence at a crime scene. Unfortunately, fabricating evidence is a misdemeanor in Maryland so even though he was convicted, he is still on the job. Incidents like this also highlight the issue of bad cops being allowed to remain on the job.
Another example involved Michael Slager, an officer in North Charleston who shot and killed Walter Scott and then planted a taser near his body to back up his story that Scott was armed. Slager eventually received a 20-year sentence after a man came forward with a cellphone recording of the incident. Had a passerby not filmed the encounter, Slager likely would have gotten away with his crimes. This is one more example of why you should always record any police encounters you may witness.
This type of misconduct can lead to criminal sanctions if it is revealed, and possibly civil rights lawsuits for damages if the conduct violates a persons’ constitutional rights – such as when the lies/fabrications cause a person to be improperly jailed and/or prosecuted for a crime they didn’t commit.
When does police misconduct violate my civil rights?
While the behaviors mentioned above are definitely illegal, they do not always involve civil rights violations. For example, the most common civil rights violation applicable to manipulating or fabricating evidence is wrongful prosecution. However, in order to make that type of civil rights claim, there are several things you must be able to prove. For example, you must be able to show that the officer caused or continued a criminal prosecution where there was no probable cause to believe that a crime had been committed in the first place. You must also show that the officer created, planted, or lied about evidence that the prosecution relied on to prosecute the case. The criminal case against you must legitimately be terminated in your favor. You also have to be able to prove that the officer did all of this with malice and that it caused some sort of injury.
Reporting this type of misconduct so that appropriate criminal sanctions can be taken against officers is often the first step to getting bad officers removed from the police force. Filing civil rights lawsuits in appropriate circumstances is key to obtaining compensation when your rights have been violated. If you are faced with such circumstances, you want a lawyer that is 100% dedicated to understanding and helping you navigate these types of complexities.
We are here to help with protecting your civil rights
If you have experienced problems with your civil rights being violated by the police, please give us a call. We work diligently to protect civil rights. For a free, no-obligation consultation with the Civil Rights Litigation Group, contact our Denver CO law firm today at (720) 515-6165 or use our online contact form.
Oct 20, 2020 | Civil Rights Law, Constitutional Rights, Discrimination, Uncategorized
When Associate Justice Ruth Bader Ginsberg passed away last month, she left an impressive legal legacy in her fight for civil rights. Throughout her career — both as an attorney and a judge — she fought everyone to have equal protection under the law.
Civil rights and the Supreme court
Before becoming a member of the Supreme Court, she won five cases before them based on the equal protection clause of the 14th Amendment — specifically the section that guarantees all citizens of the U.S “equal protection of the laws.” Early in her career, Ginsberg worked with the ACLU and led their campaign for gender equality, arguing more than 300 gender discrimination cases. Before her, the amendment was primarily used to argue for racial equality, but she successfully used it to fight for gender equality. She carefully chose cases that would highlight the inequality in how men and women were treated. She found success by taking on cases where men were the ones suffering discrimination.
In 1971, she argued in Reed v. Reed that an Idaho law stating that “males must be preferred to females” when determining the administrator of an estate was a direct violation of the 14th Amendment. The reasoning was that men were better at math. The Supreme Court unanimously agreed that the law was wrong.
In 1973, she won Frontiero v. Richardson, where her client was the husband of a female Air Force officer who was denied spousal death benefits because women were not considered the primary economic providers for their families.
Again, in 1975, in Weinberger v. Weisenfeld, she sued for a male client who had been denied Social Security survivor benefits because the agency assumed that men wouldn’t need them because they earned more money that their wives ever did. By arguing that gender discrimination hurts men as well as women, she was able to use the 14th Amendment to gain more equal rights for women. Her wins also discouraged state legislatures from writing any new laws that drew distinctions based on gender.
Using the 14th Amendment for other types of civil rights cases
After Ginsberg used the 14th Amendment to argue non-race-based discrimination cases, it opened the doors for other lawyers to use it civil rights cases for the LGBTQ community. In 1996, it was used in Romer v. Evans to overturn Colorado’s infamous Amendment 2 that prohibited LGBTQ citizens from claiming discrimination.
In 2015, it was used in the landmark Obergefell v. Hodges case that required all states to recognize same-sex marriages that were performed in other states.
Fighting for civil rights on the Supreme Court
Once she was appointed to the Supreme Court, Ginsberg continued her fight for gender equality and civil rights. In United States v. Virginia, she wrote the majority opinion that struck down the admissions policy at the Virginia Military Institute. Once again using the 14th Amendment, she argued that a state-run institution could not use gender as a basis for denying women the opportunity to attend the school.
In addition to gender equality cases, she also wrote opinions about prisoner rights. In Cutter v. Wilkinson, she argued in favor of prisoners’ religious rights. And before she was on the Supreme Court, she would have all her law clerks visit prisons so they better understood what was at stake in the cases they assisted her with.
While not all of her opinions, cases and writings are considered perfectly in line with promoting civil rights, the sum of her life’s work absolutely shows the impact she had in arguing that the law should treat everyone equally. Her actions both as an attorney and a judge will be felt for generations to come.
Additional posts about civil rights and discrimination
Sexist language and subtle discrimination
Dealing with disability discrimination in the workplace
Is there such a thing as pregnancy discrimination in the workplace?
Discrimination in Denver
Your Denver civil rights attorney
If you believe your civil rights have been violated, whether through police misconduct or discrimination, our civil rights attorneys can help you. Call the Civil Rights Litigation Group at 720-515-6165 or use our online contact form. Schedule your free consultation with a Denver discrimination attorney today.
Call us at 720-515-6165
Apr 25, 2020 | Coronavirus, Employee Rights
With all of the new laws and requirements coming about because of the coronavirus, many people have questions regarding paid time off and their rights to it. What happens if you get sick and your employer won’t give you time off to either recover or quarantine? What happens if a family member gets sick and you need to care for them?
State laws regarding paid time off
As of March, the Colorado Division of Labor enacted the Colorado Health Emergency Leave with Pay Rules (Colorado HELP) to give employees some help, especially with paid time off. Because of these new regulations, companies are now required to provide up to four days of paid medical leave for their employees. This time can be used to self-isolate if you are exhibiting symptoms of Covid-19. The new regulations cover employees in the following industries: leisure and hospitality, retail stores that sell groceries, food and beverage manufacturing, food services, childcare, education (including transportation, food service, and related work), home health care, nursing homes, and community living facilities.
New federal laws
Two new acts passed by Congress — the Families First Coronavirus Response Act and the Emergency Paid Sick Leave Act —also give you rights with regards to paid time off. These new laws require all states, cities, and towns, along with private companies with less than 500 employees, to provide up to 80 hours of paid leave to employees if they are told to self-quarantine or if they have symptoms and are waiting for test results. If this is the case, you should receive your regular rate of pay for those 80 hours. You can also use the time to care for a child if their school or daycare has been closed due to Covid-19 or to care for a family member who is either sick or needs to self-isolate. In this case, the law requires your employer to pay you two-thirds of your regular pay during your time off. The law also prevents your employer from requiring you to use all of your other paid time off, like vacation or personal time, if you get sick or need to care for someone who is.
Paid time off if you need to care for a family member
Sometimes, it’s not you that’s sick but an immediate family member like a spouse or child. If you have worked a year or more, full-time,for a company with more than 50 employees, you can take advantage of the Family Medical Leave Act, or FMLA. This act requires that companies give you up to 12 weeks of unpaid time off to care for a family member and then let you return to your job in the same or an equivalent position. They also have to let you keep your health insurance.
Can I be fired for getting sick?
The FMLA and other federal laws protect employees from being fired for a serious health condition. The Americans with Disabilities Act (ADA) also prohibits companies from discriminating against employees with a disability. In some cases, you could be considered disabled if you have an underlying health condition, such as asthma or diabetes, that could be exacerbated by the Covid-19.
We are here to help with paid time off and other employment issues
If you have experienced problems with your employer not giving you the required paid time off during this epidemic or any other health crisis, please give us a call. We work diligently to protect employee rights. The Civil Rights Litigation Group is dedicated to protecting the rights of employees during the coronavirus outbreak. If you are having issues securing paid time off, we can pursue a lawsuit against your employers, and will fight to get you compensation for your damages. For a free, no-obligation consultation with the Civil Rights Litigation Group, call our Denver CO law firm today at (720) 515-6165 or use our online contact form.
