On February 3, 2021, the Puerto Rico Department of Labor and Human Resources (hereinafter, the “PRDOL”) approved the Guidelines on Workplace Harassment / Bullying (“Acoso Laboral”) in the Private Sector in Puerto Rico (hereinafter, the “Guidelines”). These Guidelines were adopted in compliance with the mandate included in Article 9 of Act No. 90-2020, known as the “Act to Prohibit and Prevent Workplace Harassment in Puerto Rico” (hereinafter, “Act No. 90”), which instructs the PRDOL to adopt uniform guidelines that guide and assist private sector employers in the adoption and implementation of protocols against workplace harassment. For our Client Newsletter regarding Act No. 90 please click on this link. Employers will have 180 days from the approval and publication of the Guidelines, or until August 2nd, 2021, to adopt, implement, and publish the protocols in their workplaces.

What is and what isn’t workplace harassment

While the Guidelines, similar to Act No. 90, provide that the determination of whether certain conduct is constitutive of workplace harassment will depend on the totality of the circumstances and the facts proven in each particular case, Article V of the Guidelines clarifies that, pursuant to the definition of workplace harassment, the conduct must meet all of the following nine elements in order to be considered workplace harassment / bullying: (i) ill-intentioned or malicious; (ii) unwanted by the employee; (iii) repetitive and abusive; (iv) arbitrary, unreasonable and/or capricious; (v) verbal, written and/or physical; (vi) repetitive (be it by the employer, agents, supervisors or employees); (vii) unrelated to the employer’s legitimate business interests; (viii) infringes upon employees’ constitutionally protected rights, such as the right to protection against abusive attacks on their honor, dignity, reputation and private/family life, and employees’ right to be protected from risks to their health or personal integrity in their workplace; and (ix) must have created an environment in the workplace that is intimidating, humiliating, hostile and offensive, such that a reasonable person will not be able to perform their duties in a normal manner.

While Article 8 of Act No. 90 lists examples of behavior constitutive of workplace harassment, the Guidelines make it clear that such conduct must be considered in light of the definition of workplace harassment. As such, even if each one of the actions listed in Article 8 by itself meets the majority of the elements of the definition, the behavior will not be considered workplace harassment if it is deemed an isolated incident and not repetitive in nature. Furthermore, while some of the examples of behaviors considered to be workplace harassment entail that the conduct be perpetrated in public or in the presence of co-workers, actions or behavior perpetrated in private or in the absence of co-workers could, if all elements of the definition are present, be considered workplace harassment.

The Guidelines underscore that for the behavior or conduct to be considered workplace harassment it must be unrelated to the employer’s legitimate interests. Reasonable acts undertaken to encourage the proper and normal operation of a business, even if uncomfortable, unfriendly, or not to the employee’s liking, are not considered behavior or conduct constitutive of workplace harassment under Act No. 90, regardless of whether they are isolated or repetitive in nature. These generally pertain to an employer’s reasonable, legitimate and non-discriminatory actions tied to its operations and day-to-day functioning, such as implementing and enforcing disciplinary measures, enforcing policies, metrics, standards, confidentiality provisions and other contractual or statutory rights and obligations, requiring additional work or duties whenever necessary, evaluating employees’ performance, and terminating employees (for cause or upon expiration of fixed term contracts).

Exhaustion of internal and alternate dispute resolution procedures

Pursuant to Article 10 of Act No. 90, the employer must adopt an internal procedure and protocol to address allegations of workplace harassment. This protocol need not be far from those already established for other similar claims, such as, for example, the procedures to address allegations of sexual harassment or the protocol to handle domestic violence situations in the workplace. At minimum, the protocol must adopt an internal remedies and mediation scheme where the employee must, in first instance, communicate allegations of workplace harassment internally to allow their employer an opportunity to learn about the situation, investigate, and take the corresponding and necessary measures, if applicable. If the internal process is unsuccessful, the employee may then go to the Judicial Branch’s Bureau of Alternate Methods for Conflict Resolution (“Negociado de Métodos Alternos para la Solución de Conflictos de la Rama Judicial”). If, after receiving orientation, the parties do not accept the results of mediation or the mediator does not recommend the same, only then may an employee file a suit before the Puerto Rico Court of First Instance where they must provide evidence of having exhausted both internal and alternate dispute resolution procedures. Employees have one year to file suit from the moment they felt subjected to workplace harassment.

Minimum content of employer’s policy to prevent and manage situations of workplace harassment / bullying

The Guidelines establish that an employer’s internal policy or protocol serves a dual purpose. Namely, the protocol will provide orientation to employees on workplace harassment in order to promote a safe workplace free from harassment and bullying, while at the same time establishing the internal procedure to handle and investigate claims of workplace harassment. Also, while the Guidelines state that the handling of workplace harassment complaints can be adjusted to fit the administrative and human resources realities of each employer – and may even be integrated in existing policies and protocols, it is important to note that certain minimum principles must be included in the employer’s policy or protocol to prevent and handle situations of workplace harassment, namely: (1) a declaration from the employer about its policy against workplace harassment consistent with Act No. 90 while including its posture about the environment that should permeate the workplace; (2) examples of behavior or actions that could constitute workplace harassment; (3) disciplinary actions, sanctions or consequences (including personal civil liability) of engaging in conduct or behavior constitutive of workplace harassment; (4) guidelines for supervisors and managers in the prevention and identification of situations that could constitute workplace harassment; (5) anti-retaliation and confidentiality provisions; (6) the procedure for filing internal complaints of workplace harassment, mentioning the individual(s) (including alternates) responsible for receiving such complaints, while specifying whether the complaints must be verbal, written, or both (given the language of Act No. 90 and the employer’s potential civil liability if it fails to take immediate corrective measures whenever its supervisors or agents knew or should have been aware of the behavior constitutive of workplace harassment, it is highly recommended that employers investigate all claims and take immediate corrective action whenever applicable); (7) the investigation procedure and its terms (crucial given Act No. 90’s employer immunity provision when employers demonstrate that they took immediate and appropriate measures and the employee failed to take advantage of the employer’s corrective and preventive measures); (8) the steps for the exhaustion of remedies and procedures provided by Act. No. 90 aside from the internal process, including prescriptive period to file suit; and (9) providing information as to how the employer will fulfill its duty to disseminate the protocol in the workplace and date of its adoption.

If you have any questions or comments regarding these recent developments that impact the employment landscape, or if you would like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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