Newly enacted Act 90-2020 (Act 90) defines and prohibits workplace harassment in Puerto Rico, creating a new cause of action for employees and imposing additional responsibilities on employers with respect to implementation of policies and investigations. The Act is effective immediately, although employers will have until next year to adopt protocols.
Act 90, which was signed into law on August 7, 2020, applies to all natural persons and public or private entities that employ persons for any type of remuneration, including all businesses, governmental units, nonprofit organizations, employment agencies and labor unions. The Act states that the term “employee” will be interpreted as broadly as possible and shall include any person that provides services to an employer for remuneration, regardless of the nature of his or her employment, duration of employment contract, category, classification, or hierarchy.
Workplace harassment conduct for which the employer may be held responsible
Under Act 90, an employer will be held responsible for incurring, promoting, or allowing workplace harassment. The protection provided by Act 90 is identified as part of the public policies designed to implement Puerto Rico’s constitutional mandate of safeguarding human dignity.
Workplace harassment, also known as mobbing, is defined in Act 90 as conduct that is ill-intentioned, unwanted, abusive, arbitrary, unreasonable, and repetitive, that creates an intimidating, humiliating, hostile, or offensive work environment that does not allow a reasonable person to normally exercise his or her duties. Although the determination of whether there has been workplace harassment will depend on the totality of the circumstances and the evidence in each particular case, Act 90 provides open lists of actions that will be considered harassment and actions that will not.
Act 90 identifies nine actions that will constitute workplace harassment, including making injurious, defamatory or harming expressions about the person while employing indecent or crude language; and disregarding multiple claims of mobbing by not taking disciplinary actions. There are another four actions that will only constitute workplace harassment if they are carried out publicly or in front of workmates: making hostile or humiliating comments that discredit the person as a professional; threatening dismissal; making fun of the employee’s personal appearance; and disclosing private or intimate personal or family information of the employee.
Additionally, there are three actions related to the employee’s functions, which are: disqualifying the employee’s proposals or opinions in a humiliating manner; not providing the materials and information that the employee needs to perform his or her tasks; and imposing duties not related to the employee’s functions, having openly disproportionate compliance expectations in relation to a given task, or abruptly changing the employee’s worksite or functions without a business reason.
Meanwhile, the actions that will not be considered workplace harassment include reasonable disciplinary actions; requirements related to the protection of confidential information or the employee’s loyalty towards the employer; establishing regulations to guide the operation, maximize efficiency and evaluate employees in relation to the business objectives of the employer; actions taken to comply with human resources regulations or work contract clauses; requesting the employee to perform additional tasks which are necessary for the continuity of the services provided or to solve a difficult situation; terminating an employment relationship with just cause or a contract with a fixed term, and actions taken to comply with legal obligations or prohibitions.
The conduct may be verbal, written or physical, and may be carried out by the employer or its agents, supervisors or other employees not acting in a way that promotes the legitimate interests of the employer.
An employer will be responsible for the harassing actions of its employees if the employer, its agents or its supervisors knew or should have known about the conduct, unless the employer demonstrates that it took immediate and appropriate measures to correct the conduct and the employee committing the harassment unreasonably disregarded these measures. In those cases, the employer will be exempt from responsibility, but the affected employee will be able to claim against the harassing employee. Likewise, the employer will be responsible for the harassing actions of third parties against its employees at the employer’s worksite if it had knowledge of such actions and did not take corrective measures. This is similar to the sexual harassment doctrine.
The provisions of Act No. 115-1991 also protect employees who make a claim for workplace harassment against retaliation.
A harassed employee who falls ill as a result of workplace harassment is eligible to receive the services of the Workers Compensation System for Labor-Related Accidents administered by the State Insurance Fund. Once the State Insurance Fund determines that the employee’s health condition was due to workplace harassment, the Fund will be able to recover the costs of the treatment from the harassed employee’s employer. The employer will not have the defense of immunity of an insured employer because the conduct will be considered an intentional action. Therefore, the employee may seek the relief provided in the statute.
Any employee who may have suffered workplace harassment will have to follow the protocol established by the employer to notify it of the harassment. If the procedure does not result in reasonable measures, the employee may request mediation in the Alternate Dispute Resolution Bureau of the Judicial Branch. If the parties do not agree to undergo mediation, then the employee may file a complaint in court, including evidence to demonstrate that mediation was considered.
The statute of limitations to file the complaint is of one year counting from the date in which the employee was harassed. A cause of action under Act 90 may be filed under the summary proceedings for employment claims provided by Act No. 2 of October 17, 1961.
An employer or person found responsible for workplace harassment will be subject to pay two times the amount of money granted by the court for the damages caused, based on the evidence presented in each case. It is also possible that the employer or responsible person may be subject to criminal prosecution because of the harassing conduct.
Actions against workplace harassment that employers must take
Every employer will have to establish and implement policies to prevent and discourage workplace harassment and take all necessary measures to avoid this conduct. If an employer already has policies or collective bargaining agreements that provide protections against workplace harassment equal to or greater than those required by Act 90, it will be deemed to have complied with this requirement.
Employers are required to publish a summary of the provisions of Act 90 in a place visible to their employees, as they do with other labor legislation, and provide trainings to their employees regarding the policies and procedures adopted by the employer in compliance with Act 90. On or before February 3, 2021, the Puerto Rico Labor Department will publish guidelines for the implementation of workplace harassment investigation protocols and each employer will have 180 days since the date of such publication to adopt its own protocol and publish it among its employees.
Act 90 requires employers to conduct investigations of all allegations of mobbing and impose disciplinary measures when the investigation shows that the conduct occurred. When the situation involves employees of different employers, all the employers have the duty to investigate the claim. This may be the case when an employee has issues with an employee from a temporary employment agency, a subcontracted maintenance employee or other persons who regularly visit the worksite.
Here are action steps for employers in Puerto Rico to consider:
- Include the poster summarizing Act 90 in their worksites. Although the official poster is not yet available, it should be published in due course by the Labor Department.
- Revise handbooks, policies or conduct codes to clarify norms that may seem ambiguous and include workplace harassment as prohibited conduct.
- Design investigation procedures and identify the persons in charge of receiving and investigating claims - including potential external investigators - although these procedures will have to be reviewed when the regulation is published.
- Establish a uniform method to document each claim received with a list of allegations and the signature of the claimant, if there is not one already in place.
- Coordinate employee trainings on workplace harassment, which may be offered along with trainings regarding discrimination and sexual harassment.
If you have any questions, please contact the authors or your DLA Piper relationship attorney.
This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.