New Puerto Rico Laws Expand Protected Activity for Retaliation Claims, Create Civil Penalties for Violations of Vacation, Sick Leave Statute
After vetoing workplace bullying legislation this summer, the Governor of Puerto Rico has signed into law two amendments to existing employment laws that may increase litigation of retaliation and vacation and sick leave claims. The amendments are effective immediately.
An amendment to Puerto Rico’s anti-retaliation in employment statute, Act No. 115 of December 20, 1991 (“Act 115”), has expanded the scope of protected activity to include “testimony, expressions, and information” offered or attempted to be offered through internal company procedures or before any employee or representative in a position of authority.
Prior to this amendment, a protected activity for purposes of Act 115 was limited to offering, or intending to offer, any testimony, expression, or information before a legislative, judicial or administrative forum.
The scope of a protected activity for purposes of Act 115 has become broader. The law now establishes that an employer cannot retaliate against an employee because the employee “offer or intend to offer, verbally or in writing, any testimony, expression or information before”:
1. a legislative, administrative, or judicial forum in Puerto Rico;
2. within internal procedures established by the company; or
3. to any employee or representative in a position of authority.
Expressions that either are defamatory or contain privileged information are not protected by Act 115.
The stated purpose of the legislation is to provide protection against retaliation similar to that provided by Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and other federal statutes. However, unlike federal law, Act 115 has a generous three-year statute of limitations period (federal law generally provides up to a 300-day limitations period).
Civil Penalties for Violation of Paid Vacation and Sick Leave Law
The “Minimum Wage, Vacation and Sick Leave Law,” Act No. 180 of July 27, 1998 (“Act 180”), was amended to include additional civil penalties for violations. Act 180 now provides for awards equal to double the amount of any damages caused to the employee as a result of any statutory violations. In addition to the courts, the Office of Mediation and Adjudication of the Puerto Rico Department of Labor and Human Resources now has jurisdiction to entertain cases alleging violations to Act 180 and to impose civil penalties. Where the amount of damages cannot be determined, an adjudicator has discretion to impose a penalty ranging from $500 to $3,000.
As a result of the amendment to Act 180, an employee may file a claim for damages if the employer, among other things: (a) does not allow the employee to take vacation leave consecutively on a yearly basis, absent an agreement between the employer and employee to apportion the vacation leave in order to take, at least, five consecutive working days during the year; (b) partially liquidates accrued vacation leave in excess of ten days without the written request of the employee; (c) allows vacation leave to include non-working days comprised in the period the employee will enjoy vacation leave and/or the non-working days immediately before or after said period of vacation leave, without the written request of the employee; or (d) allows an employee to accrue up to two years of vacation leave without an agreement between the employer and the employee to that effect.