On August 7, 2020, Puerto Rico Governor Wanda Vázquez-Garced signed into law House Bill 306, known as the “Act to Prohibit and Prevent Workplace Harassment in Puerto Rico” (hereinafter “Act 90-2020 or “the Act”). House Bill 306, which faced staunch opposition from the private sector, was originally introduced in January of 2017, but had been sitting idle at the Legislature until earlier this summer. This new statute, which went into effect immediately, applies equally to the public and private sectors, defines the term workplace harassment (“acoso laboral”) or bullying, establishes employer’s obligations and provides aggrieved employees with a civil cause of action against their employer and individuals responsible for perpetrating workplace harassment, among other things. Notably and with respect to employer’s obligations, the statute provides that it shall be every employer’s responsibility to take necessary measures to eliminate or substantially reduce the occurrence of workplace harassment or bullying. As such, all employers must adopt and implement internal policies to reduce or prevent workplace harassment, investigate all allegations of alleged workplace harassment or bullying, and impose the corresponding sanctions whenever applicable.
Prohibited workplace harassment or bullying
Act 90-2020 defines workplace harassment or bullying as repeated and unwanted actions, conduct or behavior that are malicious, abusive, arbitrary, unreasonable and/or capricious. Said actions, conduct or behavior can be verbal, written and/or physical, are repeated in nature and perpetrated by the employer, agents, supervisors or employees, and are unrelated to the employer’s legitimate business interests. Likewise, this prohibited conduct or behavior infringes upon the employees’ constitutionally protected rights, such as the protection against abusive attacks to their honor, dignity, reputation, and private/family life, among others. This conduct creates an environment that is intimidating, humiliating, hostile and offensive and not conducive for a reasonable person to perform their duties in a normal manner.
While Act 90-2020 provides that the determination of whether certain conduct or behavior constitutes workplace harassment or bullying will depend on the totality of the circumstances and shall be dealt with on a case-by-case basis, it nonetheless provides a non-exhaustive list of behaviors that are considered as constitutive of workplace harassment or bullying:
● injurious, defamatory, or damaging expressions about a person that are filled with profanity;
● hostile and humiliating comments about an individual’s professional incompetence that are made in the presence of others;
● unjustified termination threats made in the presence of co-workers;
● comments or jokes made in public directed at an employee’s physical appearance or choice of clothing;
● the imposition of functions or duties patently foreign to the employee’s regular duties, requirements that are openly disproportionate with regards to the work assigned and the drastic change of place or scope of work without any objective reason concerning the employer’s service or business, among other examples.
Similarly, the statute provides a non-exhaustive list of behaviors that shall not be considered constitutive of workplace harassment or bullying:
● acts aimed at enforcing legal disciplinary measures by supervisors over subordinates;
● employer’s affirmative actions to enforce manuals, policies or employment contracts;
● formulating regulations, policies or directives related to the operation, the maximize efficiencies and for purposes of evaluating employees’ performance;
● the request for additional chores or tasks whenever it is necessary for the continuation of services or to solve difficult situations related to the operation or services offered by the employer;
● employer’s affirmative actions aimed at enforcing legal obligations, duties, and prohibitions.
Civil cause of action
The Act provides that any person responsible for workplace harassment or bullying shall incur in civil liability and be obligated to pay the aggrieved employee an amount equal to double the damages suffered by the employee as a result of the prohibited conduct or behavior, which could amount to remedies in excess of those provided in discrimination and retaliation cases under local statutes, which are subject to monetary caps. Moreover, employers will be held liable for the actions of supervisors or employees that constitute workplace harassment or bullying if the employer, its agents or supervisors knew or should have known of said conduct, unless the employer can demonstrate that it took immediate and appropriate actions to remedy the workplace harassment and the employee unreasonably failed to act upon the employer’s preventive and corrective actions to avoid harm. This defense will not be available when the prohibited acts are perpetrated by the employer. Likewise, employers will be held liable for acts of workplace harassment or bullying perpetrated against their employees by third parties, such as vendors or contractors, if the employer, its agents or supervisors knew of should have known of said conduct and failed to take immediate and appropriate actions to remedy the situation.
Additionally, if workplace harassment or bullying occurs amongst employees of different employers (as may occur in business that use temporary employment services, subcontractors, private security personnel, among other examples), all employers will be responsible for investigating the matter and taking corrective measures, if any.
Among other things, please note that the statute recognizes the opposition, denouncement or participation in investigations related to workplace harassment or bullying as protected activity for purposes of Puerto Rico’s general anti-retaliation statute.
DOL Regulations and Employer’s Protocol
Pursuant to Act 90-2020, the Secretary of the Department of Labor and Human Resources and the Director of the Office of Administration and Transformation of Human Resources of the Government of Puerto Rico shall, within 180 days from the Act’s effective date, adopt uniform guidelines for the development of protocols that employers must implement to handle internal complaints related to workplace harassment or bullying. Likewise, employers must, within 180 days from the publication of the DOL’s uniform guidelines, adopt and implement internal protocols and communicate these among their workforce.
Exhaustion of Internal and External Remedies
Prior to filing a claim in court for alleged workplace harassment or bullying, employees must comply with the procedure and protocol to be adopted by the employer to address workplace harassment or bullying claims. Once the employee exhausts the employer’s internal protocol and a resolution is not reached, the employee must escalate the claim with the Bureau of Alternative Disputes Resolution of the Judicial Branch. If, however, after having been oriented, the parties do not accept mediation or the mediator does not recommend mediation, the employee may file a claim in court and submit evidence showing they exhausted the administrative procedure. At that stage, the employee may opt to process the case either through the ordinary civil procedure or the summary proceeding established by Act No. 2 of October 17, 1961.
Lastly, Act 90-2020 provides a 1-year statute of limitations which starts counting from the moment the employee first felt harassed.
If you have any questions or concerns regarding the application of this new paid leave to your workforce or operations, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:
|Juan J. Casillas Ayala||787 firstname.lastname@example.org|
|Luis F. Llach-Zúñiga||787 email@example.com|
|Israel Fernández Rodríguezfirstname.lastname@example.org|
|Luis R. Ramos Cartagenaemail@example.com|
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