Further to the enactment of Act 90-2020 (Act 90), effective since August 7, 2020, employers in Puerto Rico now have until August 2, 2021 to adopt protocols on workplace harassment and educate their employees regarding such protocols. Please refer to our previous alert on Act 90.
The Department of Labor issued its Guidelines on Workplace Harassment for the Private Sector on February 3, 2021, which include clarifications regarding the interpretation of Act 90, as well as a model protocol that private employers may adopt or modify to design their own workplace harassment policies and investigation procedures. Please note that although the Guidelines are directed to private employers, Act 90 also applies to government entities.
The Guidelines stress that conduct will only constitute workplace harassment if it meets all the criteria set forth in Act 90; that is, it must be ill-intentioned, unwanted, abusive, arbitrary, unreasonable, repetitive, and capable of creating an intimidating, humiliating, hostile, or offensive work environment that does not allow a reasonable person to normally exercise his or her duties. The Guidelines clarify, as well, that a single occurrence is not sufficient to constitute workplace harassment, but a combination of several different conducts may meet the recurrence requirement. Employers who discover any apparently isolated misconduct should consider investigating the situation to ensure there is no repetition.
Act 90 includes non-exhaustive lists of actions that will be considered harassment and actions that will not. Act 90 identifies 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; mocking the employee’s personal appearance; and disclosing private or intimate personal or family information of the employee. Notwithstanding the foregoing, the Guidelines indicate that these types of conduct may constitute workplace harassment even if they are carried out privately, depending on the totality of the circumstances.
The Guidelines also include additional examples of conduct that will not be considered workplace harassment: ordering an employee to perform additional tasks, monitoring performance, notifying performance issues, advising how to improve performance issues, informing the employee of actions that may be taken against him or her if performance issues are not corrected, setting reasonable goals and standards, and conducting periodic evaluations. Additionally, the Guidelines provide that any reasonable action, whether isolated or repeated, that is directed to the good and normal operation of the business, in line with each business’ administrative circumstances, will not be considered harassment, even if it causes discomfort among the employees.
When designing protocols, employers must include all the relevant information contained in the Guidelines, but employers are free to choose: (i) whether they will accept written or oral claims, or both; (ii) the reasonable timeframe in which a workplace harassment claim will be investigated, depending on the administrative and human resources circumstances of the business; (ii) the employer’s expectations regarding employees’ conduct and any particular behavior that is considered unacceptable; (iii) the type of disciplinary sanctions that may be imposed for engaging in workplace harassment; (iv) the responsibilities of supervisors, such as a duty to report any potential workplace harassment; (v) the persons or offices to whom workplace harassment claims may be notified; and (vi) any details regarding how the investigation will be conducted and how the results will be notified.
Employers are encouraged to revise their handbooks, policies or conduct codes to clarify norms that may be ambiguous and to establish a mechanism to investigate workplace harassment complaints that abides with the Guidelines.
The protocol, including the company’s policies and investigation procedures, must be disseminated to the employees. If all the employees are currently working remotely – temporarily or permanently – the protocol may be circulated by email or other electronic platform. If the employees are alternating remote and in-person work, or only some of the employees are working remotely, the protocol must be posted electronically and in the workplace. Additionally, a poster summarizing Act 90-2020 must be displayed at the worksite.
Employees should be offered seminars or lectures on the requirements of Act 90-2020 and the company’s protocol. As part of the training, it is advisable to emphasize that those who harass employees may be sued and held personally liable for their actions, as an additional measure to deter this type of conduct in the workplace.
If you have any questions, please contact the authors or your DLA Piper relationship attorney.