When people are brought in for questioning by the police, they are expected to tell the truth or get in trouble. But what about the officers questioning you — are they bound to be truthful? In Colorado and most states, the short answer is no. They can’t lie in every instance, and they can’t fabricate evidence (Florida v. Cayward, 1989), but most of the time it’s completely legal for them to lie so it’s important to remember this if you are ever interrogated. The Supreme Court ruled in Frazier v. Cupo (1969) that police officers can lie during an investigation as long as it does not “shock the conscience of the court or the community.” For instance, they can’t tell someone that they will lose custody of their children if they don’t confess (Lynumn v. Illinois, 372 US 528 (1963). But they most certainly can lie about a lot of things that can intimidate people into confessing to crimes they didn’t commit. And as long as the court determines that a confession was voluntary and not obtained through violence, the court could allow it.
So, what do the police lie about?
When interrogating someone, the police can use every psychological trick they have to elicit a confession. They can lie about evidence they have, such as telling you that they found your fingerprints at the scene or that you were caught on camera. They might tell you that other people involved have already confessed and have implicated you as well. They might say they have already spoken to your spouse or friend who believe you are guilty. If you take a polygraph test, they can lie and tell you that you didn’t pass. The important thing to remember in these cases is that they can lie about evidence, but they can’t fabricate it. So, if they tell you they have your fingerprints on something, ask to see it. If they tell you they have video of you at a crime scene, ask to see it. And if they show you evidence that you know isn’t real, they have definitely crossed a line. Another thing they cannot do is lie to you about your rights or tell you that incriminating statements you might give won’t be used against you. Miranda warnings (from Miranda v. Arizona, 1966) are required before police officers can legally interrogate you while you are in custody. Those warnings make clear that you have the right to remain silent and that anything you say can and will be used against you in a court of law. Thus, the best practice is almost always to exercise that right and remain silent.
There are a lot of ways the police can trick people into confessing to crimes, even ones they didn’t commit. And you may think that no one would ever admit to doing something they didn’t do, but the psychological pressure of an interrogation can certainly cause someone to do so. Because of this, it’s important to always remember that you have the right to be silent and the right to have an attorney present for questioning. Police might also tell you that you will get a lighter sentence if you confess now instead of waiting for an attorney, but cops don’t decide sentencing so always ask for and consult with a lawyer before believing anything police say.
It’s also important to remember than the police don’t have to read you your Miranda rights unless they take you into custody. So, if you are speaking with an officer at the scene of a crime and they suspect you may be involved, they can intentionally tell you that you are not under arrest in order to get you talking while not technically in custody or they could lie to you about any number of things in order to get you to keep talking before they place you in custody. And if you do so willingly, your statements can be used against you in court. So always keep your guard up if you are speaking to police and there is any chance at all they think you did something wrong. Obviously, you should help the police if you call them about a crime, and often it may be in the public’s interest to serve as a witness to a crime if you have valuable information, but always remember that being innocent isn’t a guarantee that you won’t be implicated in something.
Youth are even more vulnerable when the police lie
The worst part about all this is that in most states the police can lie to kids. Some states, including Colorado (https://leg.colorado.gov/bills/sb22-023), are currently trying to pass laws to stop this. The bill didn’t pass in Colorado this year but legislators are going to reintroduce it in the 2023 session. Kids are even more vulnerable to being intimidated by the police because they either fear or trust them — and the police will absolutely use this to their advantage. Juveniles are also much less likely to know their actual rights when being questioned so it’s easy for an officer to scare them into confessing to something they didn’t do. Our brains don’t fully develop until we are in our mid-twenties, so children and even teens don’t have the same decision-making or reasoning skills that are needed during an interrogation. But until the laws do change, officers are still able to lie to them so it’s important to teach kids what their rights are and how to deal with the police. We recommend readying your children as much as readying yourself for potential police interactions. Make sure they understand that if your children are stopped, they may request a parent, guardian, and/or lawyer be present for questioning, and obviously, they have the right to remain silent.
What are your rights during an interrogation?
The Fifth Amendment protects you from being forced to incriminate yourself and the Fourteenth Amendment prohibits coercive questioning by the police. So, if a confession is coerced or involuntary, it isn’t admissible in court. Also, if the police are going to take you into custody, they should inform you of your Miranda rights — but they don’t always do that. For a confession to be considered involuntary or coerced, usually, one or more of the following needs to have happened:
- The police deprived you of food, water or using the bathroom
- You were denied legal counsel
- The police promised you leniency or told you that your statements wouldn’t be used against you
- The police threatened you in some material way (other than threats to carry out the law)
- They physically harmed you or used a gun to intimidate you into confessing.
The court will also consider other factors such your age, the location and/or length of the interrogation, your mental health at the time, level of intelligence, or if your thinking was impaired due to intoxication. The main legal standard for proving an involuntary confession is whether the police used tactics that undermined your ability to exercise free will.
What can you do?
The most important thing you can do is be aware of your rights and choose to remain silent until you have legal counsel present when you are questioned by the police. They can’t use that against you, although many will lie and tell you that things will be better if you just talk to them — but don’t believe it. And if you were accused of a crime you didn’t commit and believe the police fabricated evidence against you, it’s important that you contact an attorney who specializes in civil rights and dealing with the police. Call us for a free consultation.
Call 720-515-6165 for a free consultation.
Anyone who’s watched a cop show has likely heard of Miranda rights. At some point during an arrest, you’ll hear the officer say, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.” The wording might vary slightly from state to state, but the message is the same: the police can’t force you to answer their questions. You have the right to remain silent to avoid incriminating yourself, something every lawyer constantly reminds their clients to do.
Miranda Rights became law in 1966 as a result of the United States Supreme Court (SCOTUS) case of Miranda v. Arizona. The Miranda warning — that officers are supposed to read to anyone being arrested — is intended to protect your Fifth Amendment right to refuse answering self-incriminating questions. Now, it’s important to remember that Miranda rights only take effect after you are placed under arrest. Before that, the officers can ask you anything. Officers should, but aren’t compelled to let you know that answering their questions outside an arrest is voluntary. That is why attorneys always advise the best answer is simply, “My lawyer has advised me not to answer any questions without them present.” This is especially important if you think there is any chance at all that the police suspect you of committing a crime. Even when you aren’t – are you confident that you know all of the laws and that you have not violated any law? Keep in mind Congress passes a new book of laws every single year. With that happening, even a lawyer might have trouble keeping up with every new law that is passed. Can you ever really be sure you have not violated a law? Can anyone?
What if an officer doesn’t read you your Miranda rights?
If you aren’t read your Miranda rights before officers question you while you are in custody (something called a custodial interrogation), then the state should not be permitted to legally use what you say afterward against you at trial. Statements made in response to police interrogation without a suspect being mirandized is commonly referred to as fruit of the poisonous tree. Recognizing that type of evidence is inadmissible at trial is supposed to be the main catalyst for ensuring cops read that warning at an appropriate time because otherwise they risk losing the case and letting a supposed criminal go free — what’s the point of getting a confession from someone if it becomes inadmissible at trial?
However, just because they are required to inform you of your Miranda rights doesn’t mean they always do. The police are very skilled at trying to get information out of people and not all of them play by the book. If they believe you are guilty of something or know something, they will use every trick they know to get that information out of you, including psychological and sometimes even physical tactics. And sometimes, they don’t read you the Miranda warning. If that happens to you, you should absolutely get a good criminal defense lawyer and challenge the admissibility of the evidence.
The new SCOTUS ruling on Miranda rights
On June 23, 2022, the Supreme Court ruled in Vega v. Tekoh that if an officer doesn’t read you your Miranda rights, you cannot sue them for money damages. Basically, this means that you have no civil recourse against them if you end up having to stand trial because you were detained or prosecuted based on something you said without knowing your rights. So, even if you end up spending time in jail, losing your job, losing your reputation, and who knows what else based on ill-gotten evidence, you can no longer file a civil suit to recoup damages based on a Miranda violation. The cops may have violated your rights, but your only avenue for relief is to get the evidence suppressed in your criminal case.
That is important because before this, some jurisdictions allowed people to sue officers for violating this important civil right. Section 1983 of U.S. Code broadly authorizes civil rights lawsuits against state and local officials responsible for the “deprivation of any rights … secured by the Constitution.” Without that protection, there’s very little chance officers will face any punishment for not issuing Miranda warnings to suspects before interrogation because history has shown that police departments rarely punish their own. In fact, Supreme Court Justice Elena Kagan warned in a dissent that the Supreme Court has effectively created a new legal immunity for cops accused of violating a suspect’s Fifth Amendment rights.
Now, this ruling doesn’t mean that the evidence the cops get after speaking to you without reading your rights can be used in court, but that only comes into play if you actually know about those rights to begin with. And that is what has civil rights attorneys worried. If an officer believes a suspect doesn’t know about or understand Miranda rights, then what’s to stop them from not reading them to a suspect at all? Quite often, younger suspects or those with mental challenges may not understand their rights and will end up incriminating themselves without knowing they had another option.
And this is why, as The Clash has sung, it’s always important to know your rights.
What can I do to if the police violated my rights?
Just because you can no longer sue the police for not reading you your Miranda rights doesn’t mean you can’t sue them for other civil rights violations. If you believe you are the victim of police misconduct, such as unlawful arrest, wrongful prosecution, or excessive force it’s important that you contact a civil rights attorney as soon as possible because there are time limits to filing those claims (typically two years from the date of the incident). The Civil Rights Litigation Group has prevailed in many cases against the police in Colorado for violating people’s rights. Give us a call for a free consultation – 720-515-6165.
Call us at 720-515-6165.
Related blog posts:
Fighting back against malicious prosecution
Record the police and protect your rights
Know your rights when questioned by the police
Police misconduct and your civil rights
Wrongful arrest? Here’s what you need to prove
We often hear people talk about civil liberties and civil rights and how they are being violated, but do you actually know what they really are and what they afford you as an American? Simply put, they are the personal rights that are guaranteed by the U.S. Constitution and other federal laws enacted by Congress. They are designed to recognize the free-decision making required for individual autonomy and provide all Americans equal social opportunities and equal protection under the law regardless of race, religion, gender, age, or other personal characteristics. Aside from the rights and liberties expressly spelled out in the Bill of Rights, they include things like the Civil Rights Act of 1871, the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990.
In the U.S., federal and state law has been enacted to prohibit discrimination based on protected-class characteristics (such as race, color, religion, creed, national origin, ancestry, gender, sexual orientation, pregnancy, age, disability, etc.) when it comes to things like education, employment, access to public assistance and facilities, housing, or healthcare, just to name a few. The great thing about our Constitution and our system of laws is that it’s possible to make changes over time to correct or add things the original framers didn’t necessarily take account of or which were against social norms in the 1700s. One big example is slavery, which was still legal in 1776 and widely practiced in the South. That civil rights change only came about because of the Civil War and even then people have had to continue to fight so that people of color would eventually be given the same rights and the same treatment as others. Other civil liberties and civil rights have been secured either by new legislation or court cases providing precedence. But all of these require continued vigilance and enforcement through litigation.
What’s the difference between civil liberties and civil rights?
While they are somewhat similar, civil liberties are different from civil rights in that they are basic freedoms while civil rights focus on the right to be free from discrimination. Many of your civil liberties are guaranteed by placing limits on what the government can do to you, such as limit your freedom of speech or imprison you without proper cause. Other civil liberties include the right to privacy, the right to remain silent, the right to a fair trial, and the right to vote, something that both women and people of color had to fight for as they were not similarly recognized in the original Constitution. Most recently, the LGBTQ community fought to guarantee the right to marry for same-sex couples, a civil liberty the original framers would likely not have ever formally considered.
Civil rights, on the other hand, are designed to provide freedom from discrimination. For example, an employer can’t choose to promote only the men in the company, or layoff people just because they are over 50. Women can no longer be fired or denied promotions for getting pregnant; in fact, employers must accommodate pregnant women in the workplace. Your doctor can’t deny you medical care because they don’t like people of your race. And schools must provide a free education to all children in the U.S. and can’t segregate them into different schools. This is an example of a right that was won by a court case in 1954, Brown v. Board of Education.
Fighting for your rights
Fighting for our civil rights is something that we all need to continue to do because our system of governance requires increasing recognition of marginalized people in our society, methods of ensuring fair and equal treatment under the law, and enforcement through lawsuits, because, unfortunately, not everyone follows the law. Much of the civil rights fight happens in the political world, through voting, protests, and other methods of speaking out. The death of George Floyd in May 2020 brought about huge civil rights protests in many U.S. cities. Those protests brought about change and many states have passed new laws, such as requiring the police to wear cameras to accurately record what they do. As lawyers, we support, but cannot directly assist with political efforts. But when it comes to enforcement of the law, we have the tools necessary to sue, for example, employers that continue to find ways to discriminate and government agencies like police departments that continue to violate people’s civil constitutional rights on a daily basis. We are 100% dedicated to using the law to enforce your civil liberties and rights from those who would seek to violate them.
We can fight for your civil liberties and civil rights
If you feel that your civil liberties or civil rights have been violated, we may be able to help. If you believe your rights have been violated, whether it’s discrimination or police misconduct or any other civil rights matter, it’s important for you to contact an attorney that specializes in civil rights as soon as possible. Many claims have a statute of limitations so time is of the essence. The Civil Rights Litigation Group has handled many civil rights cases and we offer free consultations so you can find out if you have a legitimate case and/or if the attorneys here may be a good match to represent you in your case.
Call the Civil Rights Litigation Group at (720) 515-6165 or use our online contact form to schedule your free consultation with us today.
Call (720) 515-6165
At some point in your life, you will likely be questioned by the police, whether about something you witnessed or something you are being accused of doing. If you’ve witnessed a car accident or crime of some sort, you should give a statement to the police. But if there is any chance at all that they suspect you of something, it’s important to know your civil rights with regards to answering their questions. If the police believe you have information that they need, they won’t volunteer that information unless they are arresting you and reading your Miranda rights. They often count on people not knowing their rights when in these situations. The main thing to remember is that you have the right to remain silent and the right to have an attorney present, even if you aren’t being arrested.
The police also count on our basic human nature when it comes to answering questions, and in an interrogation room they know all the tricks. Here’s the problem: “When your brain is thinking about the answer to a question, it can’t contemplate anything else.” (“Want To Know What Your Brain Does When It Hears A Question?“, Fast Company) Once someone asks you a question, your brain immediately starts working on the answer whether you want to answer it or not. And our brains can only think about one idea at a time, so the police know that asking questions can mess with our thought processes. So the hard thing is knowing how and when to keep quiet even though your brain is focusing on nothing other than the questions the police are asking you.
The Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
When being questioned by the police, the main thing that protects you is the Constitution, specifically the Fourth Amendment. The police need reasonable suspicion if they are going to stop you, whether you are driving or just walking down the street. If they want to arrest you or search your car, they must have probable cause. If they want to search your home, they need a warrant or exigent circumstances. If they don’t have any of these things, they must get consent and that’s why it’s important to know your rights and keep quiet. For example, just because the police pulled you over doesn’t mean they have the right to search your car so they’re going to try to get your consent. They often make it seem like no big deal and say something like, “Hey, do you mind if we take a quick look in your car?” When you think you haven’t done anything wrong, your defenses are down and you aren’t thinking about protecting yourself. And sometimes they will take the assumptive approach and just tell you that they are going to search your car, knowing that a lot of people will just let them. So remember never to consent to a search even if you are innocent. If they try to give you a hard time about it, just tell them that your lawyer told you to never consent to a search without a warrant.
How to act while being questioned by the police
The main thing to do when being questioned by the police is remain calm and respectful. The police will often try to say or do things to make you angry or even scared because they know that’s when people lose control and end up saying things they shouldn’t. Your actions while angry could also give them probable cause to do a search so do everything you can to remain calm and in control. And definitely resist the urge to argue with them because they are very well trained in that art form and it rarely ends well for you.
Once you are calm, simply ask the officer if you are being detained. If they say no, ask if you are free to leave. If they say you are, then simply walk away. Don’t run or do anything to escalate the situation, and don’t taunt them or respond to their taunts. If the police suspect you of doing something or believe that you have information they want, they will continue to try to get you to react in some way that gives them reason to detain you.
What to do if you are detained
Being detained is not the same as being arrested, but that can still happen so it’s vital to know your rights. If they say you are being detained, ask for how long. They can’t detain you for an unreasonable amount of time without probable cause so this is an important question to ask because it lets them know that you are aware of this right. Once they tell you how long you are being detained, ask them why. Again, you have a right to know why they are detaining you and they must have reasonable suspicion to do so.
Another important thing to remember when being detained is that you also have a right to know the officer’s name and badge number. Most Colorado law enforcement agencies require the officer to give you their business card when requested. In addition, they can’t retaliate in any way just because you asked them for this information.
If you are pulled over and then detained, they will often ask if they can search your car. Ask if they have a search warrant and if they say no, calmly say that you do not consent for them to search your car. Once again, it’s important to be respectful and stay in control so that you don’t give them a reason to do a search. When being detained or even just stopped on the street, many states allow officers to do a pat down to be sure you aren’t carrying any weapons, but any search beyond that requires a warrant, exigent circumstances, or your consent — so don’t give that to them.
While you are detained and being questioned by the police, the main thing to remember is that you have the right to remain silent. Aside from telling the officer your name and possibly your address, you don’t have to answer any other questions. If you are being detained after a traffic stop, you are required to provide insurance and registration in addition to your ID, but you are still not required to answer any other questions like where you are going or what you are doing. However, you do have the right to ask questions so don’t be afraid to ask them why they stopped you, why they are questioning you, and if you have the right to leave.
Many innocent people are in prison simply because they started talking to the police. We wrongly believe that only guilty people stay silent and that the innocent will always try to help by answering questions. In fact, the police will use this against you and often say something like, “If you haven’t done anything wrong then you don’t have anything to fear.” They know it’s in our nature to answer questions, especially if we don’t think there’s any harm in doing so. But if the police have detained you then they already suspect that you are guilty of something so don’t give them any help in that regard. If they arrest you, they will often read you your Miranda rights and remind you of that — but not always — so remember that you still have that right even if you are only being detained. It’s also important to remember than choosing to remain silent does not give them probable cause to do a search. So stay calm and shut up. And if for some reason you do decide to talk, you have the right for an attorney to be present so request that before saying anything.
Were your rights violated while being questioned by the police?
If you believe that your rights were violated then it’s important that you contact a civil rights attorney who is experienced in dealing with the police. We work diligently to ensure police accountability and fight those who violate your 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.
What Does the Fourth Amendment Mean? (uscourts.gov)
Know Your Rights (ACLU)
Police misconduct and your civil rights
Police accountability improving in Colorado
While gathering evidence and documentation is necessary for your workplace discrimination case, the first step is often the hardest for most people to take: say something. If you feel you are being discriminated against for any reason, the most important thing is for you to make it officially known to your employer that you feel this way, in writing. Every company has their specific policies, whether it be filing an official report or speaking with a specific person, so if you aren’t sure consult your employee handbook or ask someone in the human resources department to find out what steps you need to take. If you don’t have an HR department and it isn’t specified in your employee handbook, just start with your immediate supervisor. Send an email, a letter, or a fax, however you choose to do it, make sure you complain in writing and make sure that you make it clear you believe you have been discriminator against due to your protected class status.
Workplace discrimination: Make it official
Now, a lot of people are probably wondering why you should let your employer know you feel this way, after all, its probably not the most comfortable conversation you can imagine. But there are many reasons why it is to your advantage to do this. The first reason is that sometimes talking about an issue can help resolve it. It’s possible your employer didn’t realize they (or another employee) were doing something that either made you feel uncomfortable or made you feel you were being treated differently than other employees. If you talk to them about it, they might be willing to address the issue and make things better without getting lawyers involved. This is certainly the easiest and quickest outcome you can hope for and could lead to you enjoying your job again and moving forward.
However, we all know this isn’t always the case so the second reason it’s important to speak up or file an official report is to create a paper trail. Once you file your complaint, any adverse action your employer takes against you after that may count as retaliation, which is illegal. According to the EEOC, “Participating in a complaint process is protected from retaliation under all circumstances.“ Whether it be termination, a demotion, discipline, or even a significant schedule change, it is illegal for them to treat you differently simply because you have raised a complaint. And if these actions do occur, they are great evidence for a discrimination and/or relation lawsuit.
One last thing to consider is that raising a complaint can also help you keep your job longer. Most HR representatives know the laws regarding retaliation, so it is less likely your boss’s boss will approve termination or other adverse employment actions against you once you raise a good-faith complaint. While termination may still be inevitable, this could help bring attention to illegal conduct and provide you and others interested in ensuring an equal opportunity workplace necessary time to gather more evidence.
How do I prove retaliation in workplace discrimination cases?
Once you file your complaint — a protected activity — your employer is not allowed to retaliate against you because of it. However, if you do something wrong, they are still allowed to address that behavior how they normally would (i.e. cutting your pay for being late). “In a case alleging that an employer took a materially adverse action because of protected activity, legal proof of retaliation requires evidence that:
- An individual engaged in prior protected activity
- The employer took a materially adverse action
- Retaliation caused the employer’s action.” (EEOC website)
The last one isn’t easy to prove, but it’s one more reason why you want to make your complaint official, to show a timeline of events. If you are now being punished for something that you and other employees have done in the past without consequence, that can help prove retaliation by helping to show that you are being treated differently than similarly situated others have been treated in the past.
Gathering other evidence for your case
Never forget that the best time to gather evidence on workplace discrimination is while you are still employed. If you happen to get terminated, you still have the right to obtain your employee files (See our previous blog post: You have a right to your personnel files) but that won’t include everything, just official documents like performance reviews, official discipline, or other official actions. So, in addition to filing an official complaint, remember to save anything that could be used to show how you are being treated or patterns in your employer’s behavior. One easy thing to do (so long as you do not violate any company policy) is to blind copy (BCC) your personal email address. This is a great way to have backup copies of any important emails that tend to show discriminations because typically you won’t be able to access your work email account after you are terminated. You can also just forward emails as well. And don’t just keep copies of emails that might show discrimination but also ones where your employer praises you, or ones where other employees thank you for doing something. These can help prove you were a good employee if they suddenly start giving you bad performance reviews or otherwise try to falsely claim that you were a bad employee before you started complaining about discriminations. And if your supervisor gives you cards or notes with praise, save those too. You never know what could end up helping prove your case.
Who can help you fight workplace discrimination?
If you ever feel you are being discriminated against at your job, it’s important to speak to someone as soon as possible. Very often you must file an official complaint before your employer can be made liable and there are important deadlines to filing claims with state or federal investigatory agencies. Finding the right civil rights attorney is key. The Civil Rights Litigation Group has successfully handled many workplace discrimination cases over the past 10 years and we are 100% dedicated to civil rights issues. We offer free consultations so you can find out if you have a legitimate case. Please call us at 720-515-6165.
Call 720-515-6165 for a free consultation.
Additional resources on workplace discrimination:
Questions and Answers: Enforcement Guidance on Retaliation and Related Issues, https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.
Discrimination, Harassment, & Mistreatment, https://cdle.colorado.gov/wage-and-hour-law/termination/discrimination-harassment-mistreatment
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.