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Puerto Rico Becomes First Jurisdiction to Adopt Law Against Workplace Bullying

In an unprecedented move and without taking into consideration the mass opposition from the private sector, on August 7, 2020, the Governor of Puerto Rico signed into law House Bill 306 to prohibit workplace bullying. This law goes into effect immediately.

Under the new law, employees in the public and private sector have a cause of action for conduct the law classifies as workplace bullying. Aggrieved employees would be entitled to remedies greater than those under local anti-discrimination statutes.

In addition, government and private sector employers, among others, must adopt policies and protocols advising employees about their rights under this new law. Employers must prohibit all forms of harassment and bullying in the workplace and provide mechanisms to address and investigate internal allegations. Unlike other employment law claims, an employee needs to exhaust both internal remedies with the company and external remedies with the Alternate Dispute Resolution Bureau of the Judiciary through a mediation process as a prerequisite to filing a lawsuit in court.

House Bill 306 goes as far as providing that the immunity for workplace injuries will not apply when it is determined that the condition suffered by the employee was prompted by a pattern of workplace harassment. House Bill 306 is unclear on which entity (i.e., a court or the State Insurance Fund) will make that determination. However, once that determination is made, the State Insurance Fund will have a cause of action against an employer to recover expenses incurred in providing treatment to the employee.

Even though the Puerto Rico Unjust Dismissal statute, Act 80-1976, recognizes a cause of action for constructive discharge when an employee is subject to arbitrary, unreasonable, and capricious actions of the employer that cause a hostile work environment, employees do not have to resign to be covered under the new law.

The law provides examples of what will be considered unlawful harassment, and it requires that the totality of the circumstances be considered. In general, the prohibited conduct is defined broadly as malicious conduct that is unwanted, repetitive and abusive, arbitrary, unreasonable or capricious, not related to legitimate business interests, and that infringes on constitutionally protected rights, such as the protection against attacks to the employee’s reputation or private life, among others. The prohibited conduct can be verbal, written, or physical. Some of the examples provided range from disregarding, in a humiliating way, an employee’s work-related opinions or ideas to imposing multiple disciplinary actions that are determined to be reckless. In short, how performance or disciplinary issues are handled or whyadditional tasks are assigned to employees is what is going to potentially trigger a claim under the new law.

The law also recognizes that opposing, denouncing, or participating in investigations related to workplace bullying will be considered protected activity under the Puerto Rico Anti-Retaliation statute, Act 115-1991.

The Puerto Rico Department of Labor will issue regulations and guidance within 180 days of the enactment of the new statute, or by February 3, 2021.

Employers in Puerto Rico have to revise policies and provide extensive training to managers and supervisors to reduce risks. Please contact a Jackson Lewis attorney with any questions about the

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 220

TRENDING LEGAL ANALYSIS


About this Author

Juan Felipe Santos, Employment Attorney, Jackson Lewis Law Firm
Office Managing Principal and Office Litigation Manager

Juan Felipe Santos is the Office Managing Principal and Office Litigation Manager in the San Juan, Puerto Rico, office of Jackson Lewis P.C. He has successfully represented employers in litigation before federal and Puerto Rico courts, including jury trials. Before joining Jackson Lewis when it opened the Puerto Rico office in 2013, Mr. Santos worked for over 10 years in other major law firms in Puerto Rico, devoting his practice exclusively to labor and employment law.

Mr. Santos represents clients through all phases and types of federal and local labor and...

787-522-7315
Sara Colón-Acevedo, Jackson Lewis, wage hour lawyer, employment discrimination attorney, puerto rico courts legal counsel, administrative forum law
Shareholder

Sara E. Colón-Acevedo is a Shareholder in the San Juan, Puerto Rico, office of Jackson Lewis P.C. Her practice concentrates in employment discrimination and wage and hour law counseling and litigation on behalf of employers in Puerto Rico local and federal courts.

Ms. Colón-Acevedo has extensive trial experience before both federal and local courts and administrative forums in Puerto Rico. She also has experienced defending employers facing collective wage and hour class actions.

In her more than 15 years of practice, Ms. Colón-Acevedo has developed extensive experience offering preventive advice to clients, developing and revising policies, and giving seminars to clients on different areas in the Employment Law field.

Following her undergraduate studies, Ms. Colón-Acevedo was a teacher in a private school in Puerto Rico. She decided to continue her studies and, following law school, she completed a two year clerkship at the San Juan Superior Court with Honorable Judges Carmen Rita Vélez-Borrás and Arnaldo López-Rodríguez.

787-522-7310