Anti-discrimination and the laws that protect you

man in wheelchair working with woman, medical indifferenceRegardless of whether you are a member of a protected class or not, it’s important to understand the anti-discrimination laws and how they have changed over the years. In Colorado, the main one is the Colorado Anti-Discrimination Act (CADA). It originally passed in 2013 and additions to it went into effect on January 1, 2015. The main difference between CADA and the federal anti-discrimination laws is that CADA applies to all Colorado employers no matter how few employees they have. Most of the federal laws only apply to employers with at least 15 employees.

 

What does the Colorado Anti-Discrimination Act cover?

The Colorado Anti-Discrimination Act makes it illegal for employers to discriminate against an employee on the basis of disability, race, creed, color, sex, sexual orientation, religion, age, national origin or ancestry. It also guarantees equal access to public accommodations and housing. Public accommodations include most businesses that offer products or services to the public, such as restaurants, retail stores, health clubs, and even hospitals and clinics. In Colorado, it’s illegal for one of these places to deny someone the available goods and services because they are a member of any of the protected classes listed above. The part of the law that covers housing protects those same people from discriminatory financing, refusal to rent, unequal terms and conditions, failure to provide reasonable accommodations for disabilities, and retaliation for exercising these rights.

Some of the changes that were added in January 2015 include:

  • Employees can now file discrimination lawsuits under state law vs. federal law.
  • In addition to back pay and equitable relief (i.e. reinstatement), employees can now seek to recover punitive and compensatory damages such as emotional pain and suffering, mental anguish, loss of enjoyment of life, inconvenience and other losses not directly relating to or consisting of money (a.k.a. non-pecuniary losses).
  • The courts now have the discretionary power to award aggrieved employees attorneys’ fees, as well as various fees and cost associated with the actions.
  • Employers may be awarded attorneys fees and costs, but only if the court deems the case to be groundless, vexatious, or frivolous.
  • Either the employer or the employee can now demand a jury trial.
  • To be more in line with federal age discrimination law, there is no longer a maximum age for employees to make a discrimination claim.

 

What is the process for filing anti-discrimination complaints?

With all of these new laws, it is important to remember that there is a statute of limitations (time limit) from the date of the last alleged discriminatory and/or retaliatory act for when you must file a complaint:

  • Employment filing deadline: six (6) months from the act of alleged discrimination (possibly up to 300 days for federal matters)
  • Housing filing deadline: one (1) year from the act of alleged discrimination
  • Public Accommodations filing deadline: sixty (60) days from the act of alleged discrimination

Therefore, if you feel that you have been discriminated against, it is important to act fast. If you choose to file a complaint yourself, you can read the steps for the Complaint Process online with the Colorado Civil Rights Division, under the Colorado Department of Regulatory Agencies, or DORA. There are different filings that need to happen before these deadlines, so it is important to start as early as possible. And whether you file yourself or get legal representation, know that the Division has 270 days to complete their administrative process (with 90-day extension requests available to both parties) so it can take a while to resolve.

 

Who can help me with anti-discrimination lawsuits?

The other option is to consult an attorney who is experienced with not only the deadlines and filing procedures, but also all of the state and federal anti-discrimination laws that may apply to your case. If you believe you are the victim of discrimination, it’s important to act quickly and to gather as much evidence as you can, and then contact a local civil rights attorney who can advise you on your case. The Civil Rights Litigation Group has successfully handled many anti-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.


Related blog posts on this topic:

How to spot workplace discrimination

Speaking up about workplace discrimination

Sexist language and subtle discrimination

Is there such a thing as pregnancy discrimination in the workplace?

I filed an age discrimination lawsuit: What questions will I be asked?

What proof do I need for age discrimination lawsuits in Colorado?

What is the burden of proof in a religious discrimination lawsuit

Discrimination in Denver

Is it discrimination? A few questions you need to ask

How to spot workplace discrimination

Workplace discrimination can take a variety of forms that may not always be easy to spot. But before we get into the details of how to spot workplace discrimination, it’s important to understand exactly what discrimination is. Simply put, discrimination means treating someone differently based on — or because of — their protected class characteristics (i.e. things like sex, race, age, religion, disability, etc.). We’ve all likely experienced some form of discrimination at some point or another in our lives, whether it be in the form of racism, sexism, ageism, or the many other ways that people are unfairly judged based on an aspect of themselves they cannot change. Disparate treatment based on a protected class characteristic is against the law. And while things have improved over the years, discrimination unfortunately still sometimes happens … especially in the workplace.

What laws protect you against workplace discrimination?

There are many federal laws that protect you from workplace discrimination, including but not limited to:

The basic idea of these combined laws is that employers must treat all of their employees equally regardless of sex/gender, age, race, religion, national origin, pregnancy status, disabilities, etc. They are not allowed to make employment decisions such as hiring, firing, promotions, assignments, or discipline based on these factors. The laws also prohibit retaliation and harassment, including sexual harassment. Federal laws apply to employers with 15 or more employees (the ADEA requires a minimum of 20), but many states have additional laws that extend these protections to employers with fewer employees. In Colorado, the Colorado Anti-Discrimination Act (CADA) and the Pregnant Workers Fairness Act (PWFA) protects employees who work for employers with less than 15 employees and, often, include even more expansive protections than does federal law.

equal pay shown on scale with moneyWhat does workplace discrimination look like?

Discrimination can take many forms but there are certain behaviors and situations that you should keep an eye out for as red flags that might be indicative of discrimination.

Unequal pay: If two employees (or groups of employees) have the same skills, abilities, qualifications and performance and are doing the same (or comparable) job, but one is being paid more simply because of other differences, that may be a sign of discrimination. Whether those differences are based on gender, race, age, or any other protected class status — it’s not right and may be actionable. This is one of the most obvious and recognizable signs of discrimination, so if you suspect something may be amiss between you and other employee’s pay, consider asking what others in similar roles are being paid as compared to you.

Pay secrecy policies: To protect employees who inquire into the compensation they and their coworkers are making, the National Labor Relations Act of 1935 prohibits private-sector employers from enacting pay secrecy policies that try to stop employees from discussing their pay with each other. In 2014, President Obama signed an executive order that prohibits such discussion for federal contractors as well. If such policies exist, they are likely to be unlawful and/or unenforceable.

Lack of Diversity: Are all the employees at your company the same race? Is everyone under 40 even though there are plenty of jobs that could be performed by older people? Are all the female employees childless, which could indicate pregnancy or familial preference? If so, these types of patterns may be indicative of discrimination. The more obvious the differences are, the easier this one is to spot. You can also look for signs of this kind of discrimination by looking at people in positions of leadership — are they all men or a certain race? If so, this could be a sign that the employer discriminates in its hiring practices or may consciously or subconsciously prevent members of protects classes from advancement. This could also be a sign that facially neutral policies are being applied (or being applied in a manner) that may have a disproportionate impact on people of certain protected classes.

Gender roles: In the not-so-distant past, it was totally acceptable for employers to hire specific genders for certain jobs, such as men being managers and women being secretaries. Unfortunately, this kind of discrimination still happens today and affects people of all protected classes. Much of this discrimination is based on stereotypes, such as hiring only men as car salesmen because “men know more about cars.” Or hiring women as receptionists because “women are more pleasant than men.” It could involve employers not hiring people of a certain race for a front desk position because they don’t want people with different accents greeting customers. Sometimes it’s subtle, like an employer only asking female employees to fill in for a sick receptionist or younger employees to do jobs involving technology.

Inappropriate questions, jokes or communication: Everyone likes to joke around and be lighthearted at work occasionally, but if those jokes are levied at the expense of people of protected classes — such as sexist or racist jokes — it can be classified as discrimination. Also, it can be helpful to look at how supervisors communicate with the employees under them — are they condescending to certain genders or ages? Do they over-explain things to people of different races? Do they make unfounded assumptions about the trustworthiness of people of certain races? Do they express distrust for people of certain religions? These are the subtle forms of discrimination that may point to bigger problems.

Suspicious interview questions and hiring practices: During an interview, if you are asked questions about your health, age, plans on having a family, or other personal situations that have nothing to do with the job you are applying for, that may be a red flag. Some employers still look for ways not to hire women who may be planning on having children, or may already have several children, because those women sometimes need time off to care for their children. Employers may find tricky ways of asking about your age because your health insurance could cost them more or they might assume you are going to retire soon. If a potential employer asks inappropriate questions, it may be a sign to pass on that job or report the employer.

Unequal promotions and discipline: Are less-qualified male employees being promoted faster than more-qualified women? Are employees of a certain race given better jobs or opportunities for growth? Are older employees given less hours or given tasks that are below their skills? Likewise, are things equal with regards to discipline? Does your boss scold or punish the female employees for being late but let the men get away with it? If an employer only enforces certain policies with specific employees of a protected class, that can be an example of workplace discrimination.

Retaliation: If you feel that discriminated against, or that discrimination is impacting other employees, you have the right to complain and/or to seek changes for an equal opportunity workplace. If you decide to exercise your rights, the law prohibits your employer from retaliating against you, including for any of the following:

  • Complaining to your employer or supervisor
  • Filing a discrimination charge or lawsuit
  • Resisting sexual harassment or advances
  • Opposing discrimination or an unlawful employment practice
  • Being a witness in someone else’s discrimination complaint or lawsuit
  • Requesting an accommodation for a disability
  • Assisting with a discrimination investigation
  • Requesting information on your employer’s discrimination policies

All of these are considered protected activity and retaliation for them is against the law. Retaliation can take many forms such as termination, increased scrutiny, negative performance reviews, discipline, a change in job duties or reduction in hours, or almost any other form of threat or harassment that has a material effect on your job or ability to perform your job.

What should you do?

If you believe you are the victim of workplace discrimination or retaliation, it’s important to act quickly because there are time limits for when you can file a charge or a lawsuit. It’s equally important to gather as much evidence as you can and then contact a local civil rights attorney because they can advise you on all the laws in your city and state. 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.

_____________________________

Related blog posts on this topic:

Speaking up about workplace discrimination

Equal pay for equal work is a law in Colorado

You have a right to your personnel files

Sexist language and subtle discrimination

Is there such a thing as pregnancy discrimination in the workplace?

I filed an age discrimination lawsuit: What questions will I be asked?

My company found out I’m a whistleblower and are now harassing me

What proof do I need for age discrimination lawsuits in Colorado?

 

Speaking up about workplace discrimination

woman stressed at work, workplace discriminationWhile 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 Issueshttps://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.

Discrimination, Harassment, & Mistreatment, https://cdle.colorado.gov/wage-and-hour-law/termination/discrimination-harassment-mistreatment

When is recording conversations legal in Colorado?

hand holding phone, recording conversationsNo matter what kind of lawsuit you are looking to file, the most important element of your case will always be evidence — do you have any and how strong is it? Regardless of whether you are involved in a discrimination case with your employer or a case against the police, your cell phone is often your best defense. You always have the power to pull it out and start recording conversations or situations if you think something illegal is happening or about to happen. Most of the time, you are within your rights to do so.

The best kind of evidence

Discrimination lawsuits are some of the hardest to win because they often rely on how conduct by an employer is interpreted. Sometimes an employer’s specific language, tone, or comparative actions are key to understanding how something said or done is discriminatory. Context is often key. To prove that something illegal actually took place, you need to have solid evidence that you were treated differently because of your protected class status. And you want that to be clear. The best kind of evidence you can have is video or audio evidence. It’s difficult for someone to deny something or say that it wasn’t meant the way you interpreted it when you have a recording of the activity in context. In a time when pretty much everyone has a portable video camera and audio recorder in their pocket, it has become much easier to prove illegal conduct through records like audio and video evidence.

Recording conversations and the law

Recording conversations legally is pretty easy in Colorado. Colorado recording law stipulates that it is a “one-party consent state.” What that means is that only one party to a communication needs to be aware of a recording in order to lawfully consent to the creation of the recording. In Colorado, it is a criminal offense to use any device to record communications whether it’s wire, oral or electronic without the consent of at least one person taking part in the communication. … “One party consent” means that in Colorado, you are legally allowed to record a conversation you take part in.” (recordinglaw.com) Now, if you are in a situation where you are trying to record other people where you are not involved in the conversation, it’s only legal if they are in a public place — and therefore have no reasonable expectation of privacy — or if you make it known to at least one of the participants that you are recording. Otherwise, it’s considered eavesdropping.

Recording conversations in the workplace

Under many circumstances, the workplace is considered a public place. However, eavesdropping laws are serious business. So we do not recommend recording if you are not a party to the conversation, without consulting a qualified attorney first. However, most conversations you are aware of probably involve you, so most times recording conversations and/or phone calls with your employer (or whoever is discriminating against you), is fair game. Thus, recording your boss at work without him or her knowing is sometimes the best way to legally obtain critical evidence. Circumstances may only practically allow you to get audio evidence with a phone recorder turned on in your pocket or purse, but it still can provide solid evidence and can help your case. If problems are arising during group meetings, and you are part of those meetings, it is also likely legal for you to record those too. Unless your company has legal rules against it, it’s fine in most cases as long as you aren’t planning on doing anything illegal with the recordings, like blackmailing someone or selling company secrets. And if you want to be 100% sure that your recording will be legal, simply start recording and immediately say, “Do you mind if I record this?”

Company policies regarding recording

It is important to be aware of any company policies that may prohibit recording in the workplace. There may be legitimate security or privacy reasons companies prohibit recording in certain areas. Violating legitimate company policies could inadvertently place you in hot water. However, some company policies that prohibit recording may be illegal and/or unenforceable. In 2015, for example, “the National Labor Relations Board ruled that blanket no-recording policies by employers violate workers’ right to engage in ‘concerted activity’ about the terms of their employment.” You should consult an attorney to help navigate nuances in this area.

What to do next?

If you feel you are being discriminated against at your job, it is important to gather and save evidence that can make a difference. That can often involve audio or video recordings. 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 in court and make sure your rights are protected and you are treated fairly.

Call 720-515-6165

Equal pay for equal work is a law in Colorado

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.

woman working with saw, equal payExceptions 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.

 

You have a right to your personnel files

woman reading through personnel filesIf 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.

woman looking through folders of personnel filesWhat 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:

  1. Documents required by state or federal law to be maintained in a separate file (such as medical or FLMA documents)
  2. Confidential reports from the employee’s previous employer
  3. Documents pertaining to an active criminal investigation
  4. Documents pertaining to an active disciplinary investigation
  5. Documents pertaining to an active investigation by a regulatory agency
  6. 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:

  1. Create a private cause of action, (meaning it does not create a new way for you to sue)
  2. Require employers to create, maintain, or retain personnel files of employees or former employees
  3. 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.

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