On August 7, 2020, the Governor of Puerto Rico, Hon. Wanda Vázquez Garced, signed into law the “Act to Prohibit and Prevent Workplace Harassment in Puerto Rico,” previously known as House Bill No. 306. The primary purpose of the Act is to prohibit and prevent abusive conduct against employees in the workplace that affects worker performance, alters workplace peace, and threatens the dignity of employees.
The Act defines workplace harassment as actions and behavior that are:
malicious, unwanted, repetitive and abusive; arbitrary, unreasonable and/or capricious; verbal, written and/or physical; [performed] repeatedly by the employer, his agents, supervisors or employees, oblivious to the legitimate interests of the employer's company, are unwelcome, [violate the employee’s] protected constitutional rights . . . . creat[ing] an intimidating, humiliating, hostile or offensive work environment, not suitable for the reasonable person to perform their duties or tasks in a normal manner.
The Act provides a non-exhaustive list of conduct that can be considered workplace harassment, such as: injurious, defamatory or damaging expressions about the person, with the use of profanity; hostile and humiliating comments about an individual’s professional incompetence in the presence of co-workers; public comments or ridicule directed at the employee about physical appearance or dress; among other examples.
Employers will be held liable for the actions of their supervisors or other employees for conduct that is considered workplace harassment, if they knew of the harassment taking place and did nothing about it. On the other hand, if the employer can establish that it took immediate and appropriate action to remedy and stop the workplace harassment, then the employer will not be held liable.
The Act requires that employers adopt and implement internal rules and policies to eliminate or reduce the occurrence of workplace harassment, establish the procedure to investigate claims of workplace harassment, and impose sanctions against those who violate these policies.
After the Puerto Rico Department of Labor issues uniform guidance as to the requirements employers need to include in their policies, employers will have 180 days to implement these requirements. The Act also establishes that in cases where the workplace harassment occurs among employees of different employers, as may be the case in temporary work arrangements, all employers must investigate the claim of workplace harassment, regardless of which entity is the victim’s or harasser’s employer.
In broad terms, the Act establishes the procedure an employee will have to follow to complain of workplace harassment. First, the employee must exhaust the employer’s internal complaint mechanism. If this is unsuccessful, then the employee must turn to the Bureau of Alternate Dispute Resolution of the Judicial Branch. Finally, if mediation is unsuccessful or the mediator does not recommend it, then the employee may take judicial action in the Court of First Instance.
The Act imposes a one-year statute of limitations for employees to file their cause of action after they feel they were the victim of workplace harassment. If held liable, the employer is responsible for compensatory damages suffered by the employee, and any damages awarded will be doubled automatically.
Once the Puerto Rico Department of Labor issues uniform guidance on this new law, employers should review their current policies and revise them accordingly to ensure compliance with the Department’s requirements.
