Compliance alert: employers in Puerto Rico failing to implement required workplace protocols and facing the consequences

As most employers doing business in Puerto Rico are aware, employment is a highly legislated field in this jurisdiction. All employers are required to have in place a vast array of policies and procedures, and to comply with countless laws and regulations governing everything from the initial recruitment process to post-termination issues. However, it has recently become apparent that some employers, both big and small, are overlooking three critical requirements to be in compliance with local law. To wit, employers are failing to create and implement protocols for the management of domestic violence in the workplace, workplace harassment (‘mobbing’), and sexual harassment in the workplace.

While almost all entities with operations in Puerto Rico are aware of their legal obligations to have in place policies (a set of rules or guidelines for employees in the workplace to follow) that declare zero tolerance for domestic violence, mobbing, and sexual harassment in the workplace, it has become evident in recent high-profile cases that many employers are unaware of their separate, additional obligation to have in place specific protocols (procedures that include the steps for managing the problem) for the management of such situation in their place of business.

Since Law 261 was passed on 29 September 2006, all employers in Puerto Rico are obligated to implement and publish a protocol directly addressing situations of domestic violence in the workplace, which is an extension of the employer’s legal obligation to abide by the public policy against domestic violence established by Law 54 of 15 August 1989. Subsequently, on 7 August 2020, the local government enacted Law 90, titled ‘Law to Prohibit and Prevent Workplace Harassment in Puerto Rico’ (our translation, hereinafter the ‘Workplace Harassment Act’), to prohibit mobbing. The approval of this statute distinguishes Puerto Rico from many other jurisdictions in the US. Puerto Rico is currently the only jurisdiction in the United States with a workplace harassment law in place. Finally, Law 82 of 27 September 2022, an amendment to Puerto Rico’s ‘Law to Prohibit Sexual Harassment’ was approved and went into effect immediately. The amendment was triggered by headline-making fines by the Puerto Rico office for women’s advocacy against a local political party in connection with a sexual harassment claim, after it determined that the organisation in question had failed to have protocols and procedures in place to handle sexual harassment claims.

Under the foregoing statutes, employers are not only obligated to have in place policies prohibiting domestic violence, mobbing, and sexual harassment in the workplace, they are also required to have separate protocols in place for each of the three, which must include, among others, a declaration that the conduct at issue is illegal; a declaration of purpose to prevent, discourage and avoid such harassment or violence; definitions of important terms included in each protocol; examples of prohibited conduct; how to present a charge of harassment or a situation of domestic violence and to whom; the names, positions, and contact information of each person designated to implement and administer the protocol(s); as well as the specific procedures the employer will follow when a charge is made under the protocol(s); and, in the case of sexual harassment complaints, a copy of the complaint form for reporting charges. Employers not only have a duty to create and implement protocols for each of the foregoing statutes, but also to disclose the same to all of their employees, provide them training as to the same, and specifically advise them of their rights and resources under each law. Employers should obtain a signed acknowledgment of receipt from each employee, certifying that they received a copy of the policy and the requisite orientation regarding the same.

The Puerto Rico Department of Labour facilitated compliance with this obligation by publishing templates of each required protocol that employers can then modify according to the specific needs of their operation. However, as previously mentioned, recent trends demonstrate that employers are falling short in their obligation to implement the specific protocols outlined above, with sometimes dire consequences. Not only does this omission expose companies to civil fines from the Puerto Rico department of labour for non-compliance, but many employee lawsuits are now alleging that the failure to have the required protocols in place is discriminatory on its face, as the employer has refused to abide by applicable laws. It is only a matter of time before a major ruling is handed down on this issue.

Don’t get caught unaware – is your organisation in compliance?

For further information or, if you should have any questions or comments relative to this article, please consult the labour and employment law team at AMG.

Adsuar Muñiz Goyco Seda & Pérez-Ochoa, P.S.C. (‘AMG’)

Adsuar Muñiz Goyco Seda & Pérez-Ochoa, P.S.C. (‘AMG’) endeavors to provide comprehensive business-related legal services to companies throughout Puerto Rico, as well as business interests based in the continental United States or abroad that have financial interests in Puerto Rico. AMG’s exceptional team of lawyers bring years of experience and a wide range of professional credentials to every matter they handle. As a full-service law firm, AMG assists clients facing a wide range of issues including business disputes; labour and employment law; tax issues; commencing business operations in Puerto Rico; banking, real estate, finance and mergers and acquisitions; and aviation law.

AMG’s labour and employment department is experienced in all areas of labor and employment law, including legal counseling in cases of wrongful discharge, employment discrimination, workplace retaliation, wage and hour claims, employee benefits, business-related immigration, and employment practices liability. AMG’s labour and employment practice includes representation of employers in cases before federal and Puerto Rico courts, as well as administrative agencies. Our attorneys also represent employers in the public and private sectors with claims and proceedings involving union campaigns, negotiation and administration of collective bargaining agreements, and labour arbitrations. AMG labour and employment law attorneys also have extensive experience in reorganisation of businesses, reductions-in-force, plant closings and mergers and acquisitions. AMG’s labour and employment law attorneys are the current Puerto Rico contributors to the Executive Remuneration Review and Chambers global practice guide (employment).

Mariel Y Haack joined AMG in 2005. She is currently a shareholder in the firm’s labour and employment department. Her areas of practice include representation of management before administrative agencies and in federal and Puerto Rico courts in wrongful discharge cases, discrimination suits, wage and hour and benefits claims; general counselling with clients regarding
the avoidance of litigation, as well as compliance with Puerto Rican and federal labour laws, employment discrimination statutes (such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964), ERISA and other laws governing various aspects of employment; appellate practice in both federal and Puerto Rican courts; and employment-based immigration, including H-1B visas for professionals and individuals with specialist knowledge; L visas for intra-company transfers for executives, administrators, professionals and individuals with specialist knowledge; E visas for treaty investors and treaty traders; and labour certifications, employment-based permanent resident petitions and naturalisation. Ms Haack’s practice also includes defending insurance claims in the area of employment practices liability. She also represents major airlines serving Puerto Rico in labour and employment matters and aviation law.

Ms Haack is admitted to the Puerto Rico Bar, the US District Court for the District of Puerto Rico and the United States Court of Appeals for the First Circuit.

Edwin J Seda-Fernández is the director of AMG’s labour and employment department. His active practice encompasses counselling and representing clients in all areas of labour and employment law. A substantial element of his practice consists of representing management in union campaigns, negotiation of collective bargaining agreements, labour arbitration and proceedings before the National Labour Relations Board. Mr Seda-Fernández also defends vigorously but judiciously employers in wrongful discharge, employment discrimination, benefits, and wage and hours claims in the Puerto Rican and federal courts, including the United States Court of Appeals for the First Circuit.

Mr Seda-Fernández has extensive experience in counselling employers in workforce reductions, business reorganisations and employment aspects of mergers and acquisitions. He has lectured extensively before commercial and professional associations, including the Puerto Rico Manufacturing Association, the Puerto Rico Chamber of Commerce, the Council on Education in Management, the National Business Institute, the Puerto Rico Hotel and Tourism Association, the programme for professional development of the University of Puerto Rico and the Association of Labour Relations Practitioners. He has also taught courses in labour law and jurisprudence, collective bargaining and labour relations at the Business Administration Faculty of the University of Puerto Rico, Río Piedras.

Mr Seda-Fernández is admitted to the Puerto Rico Bar, the US District Court for the District of Puerto Rico, and the United States Court of Appeals for the First Circuit.