It’s not funny anymore: a primer on workplace harassment in Puerto Rico

In a notable development for employers doing business in Puerto Rico, on 7 August 2020, the local government enacted Law 90, titled the Law to Prohibit and Prevent Workplace Harassment in Puerto Rico (our translation, hereinafter the ‘Workplace Harassment Act’), to prohibit workplace harassment (commonly referred to as ‘mobbing’). Previously, workplace harassment had not been recognised or protected under the law in this jurisdiction, although plaintiff-side practitioners had long argued for such protections. The law went into effect immediately upon its enactment. At this time, employers are expected to be in full compliance and have anti-workplace harassment policies in place. This, along with Puerto Rico’s Wrongful Discharge Statute, Law 80 of 30 May 1976; and strong local anti-discrimination and other workplace protections, 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, and all employers doing business here should ensure to have adjusted their policies and practices accordingly.

This workplace harassment statute applies to all employees in the private and public sector, including temporary and fixed-term employees. The Act defines the term ‘workplace harassment,’ and requires employers to take affirmative steps to reduce and eliminate it, including adopting and implementing anti-harassment policies. It also requires employers to address and investigate all allegations of workplace harassment.

In compliance with Article 9 of the Workplace Harassment Act, on 3 February 2021, the Puerto Rico Department of Labor and Human Resources issued Guidelines Regarding Workplace Harassment in the Private Sector in Puerto Rico (translation ours), aimed at providing employers with the necessary tools to enact their anti-harassment policies and procedures, and to clarify for both employers and employees the extent of their rights and obligations under the law.

The Workplace Harassment Act and its interpretative guidance provide a non-exhaustive list of the conduct and actions that shall be considered unlawful workplace harassment. The term ‘workplace harassment’ is defined as malicious conduct that is unwanted, repetitive and abusive, arbitrary, unreasonable or capricious, not related to legitimate business interests, such conduct may be verbal, in writing, or physical, and must be of a nature and severity that infringes on constitutionally protected rights. This includes protection against attacks to the employee’s reputation or private life, and risks against the employee’s health and integrity, among others. In sum, the law forbids conduct that creates a work environment that is intimidating, humiliating, hostile or offensive, which is not conducive to a reasonable person executing their duties or functions in a normal manner. Some of examples of prohibited conduct include jokes regarding an employee’s physical appearance; disregarding an employee’s work-related opinions or ideas in a humiliating way; imposing multiple disciplinary actions that are determined to be reckless; and making public comments regarding an employee’s private or family life. The law requires that the conduct objected to be recurrent and persistent, so that a single act of harassment shall not constitute unlawful workplace harassment. That being said, employers should take care to investigate allegations of isolated incidents in order to prevent their reoccurrence from becoming actionable mobbing.

It is important to reiterate, however, that in order to constitute unlawful workplace harassment, the conduct in question must truly be unrelated to the employer’s legitimate business interests. Meaning that reasonable actions directed to ensure the proper operation of the workplace will not be considered mobbing, even if they are uncomfortable, unpalatable, or unpopular to employees. For example, the legitimate exercise of disciplinary authority of a supervisor over a subordinate; requests or demands of confidentiality designed to protect the products or services provided by the employer, or requirement duty of loyalty of the employee towards their employer; the implementing or promoting policies, procedures, and memoranda to direct the employer’s operations, maximise efficiency and evaluate the employees’ performance in accordance with the employer’s objectives; requests for the execution of overtime work, additional duties or collaboration when needed for purposes of continuity of services or in order to resolve unanticipated or complex situations that impact the employer’s operations; and affirmative actions taken by the employer in order to comply with its duties, obligations and prohibitions, as defined by law.

Given the dynamic nature of the workplace, the foregoing examples are not intended to be exhaustive. Employers are empowered to take any and all decisions and actions in furtherance of the administration of their business and human resources as are necessary, so long as they are not prohibited by law. Accordingly, the good faith evaluation and discipline of personnel, establishment of performance targets and standards, assignment of duties, training and counseling, as well as oversight of work performance are expressly permitted. Employees must be aware that the aforementioned acts make take place periodically and repeatedly and will still not be considered workplace harassment; as any such action by the employer, whether isolated or repeated, is within the employer’s managerial prerogative.

Employers should take note that, unlike some other prohibited forms of harassment which require evidence that they were perpetrated by a superior towards a subordinate, such as quid-pro-quo sexual harassment, unlawful mobbing can take place by and between employees of any rank, be it by the employer, its supervisors, agents, or any other type of employee. Workplace harassment by third parties and non-employees is also prohibited.

Pursuant to the law, the employer shall be liable for the actions of its supervisors and other employees who engage in workplace harassment, when the employer, its agents, or its supervisors ‘knew or should have known’ of the improper conduct, unless the employer can prove that it took immediate and appropriate action to stop the conduct. This defence is not available when it is determined that the employer itself engaged in the prohibited conduct. This law also establishes that the workers’ compensation immunity for work-related injuries will not apply when it is determined that the condition suffered by the employee was prompted by a pattern of workplace harassment. It also authorises the State Insurance Fund to recover expenses incurred in providing treatment to the employee in such situations. Opposing, denouncing, or participating in investigations related to workplace harassment shall be considered protected activity under Puerto Rico’s Anti-Retaliation statute, Law No 115-1991.

Employers and their in-house counsel should take note that the law provides a statutory remedy for unlawful workplace harassment equal to double the amount of any damages proven at trial by the employee, plus attorney’s fees. As a result, even a nominal award can become a substantial amount. However, before any action is filed in court, the employee must exhaust both internal remedies within the company and external remedies with the Alternate Dispute Resolution Bureau of the Judicial Branch through a mediation process. This is new, as under other local harassment statutes, mediation is not required before filing a judicial complaint.

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, PSC (AMG) endeavours 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 labour 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).