Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On September 28, 2022, Puerto Rico Governor Pedro Pierluisi signed into law Act No. 82-2022 (Act 82) amending Act No. 17 of April 22, 1988, which prohibits sexual harassment in the workplace. This amendment expands employment protections to paid and unpaid interns and establishes specific requirements for sexual harassment protocols.
The definition of employee, as amended by Act 82, now includes individuals who participate in internships for educational or training purposes, regardless of whether they receive any monetary compensation. More importantly, Act 82 now requires that employers establish and implement sexual harassment protocols that meet specific parameters in order to address sexual harassment situations that may arise in the workplace. The Act further authorizes the Women’s Advocate Office (WAO) and the Puerto Rico Department of Labor and Human Resources (PRDOL) to provide the necessary technical advice regarding the preparation and implementation of said protocols, as well as to ensure their compliance.
Employers may choose to either adopt the model protocol to be designed by the PRDOL or implement their own.1 The employer-designed protocol, however, must meet or exceed the protections afforded by the PRDOL protocol. More specifically, the protocol must include the following:
- A statement expressing that sexual harassment in the workplace is illegal
- The legal basis for the protocol
- Designation of the persons in charge of handing sexual harassment complaints
- Examples of prohibited conduct
- Provisional protection measures to protect complainants or victims of harassment
- Appropriate definitions
- Explanation of who is allowed to file a complaint and the procedure to follow in doing so, which must include the option to file a verbal, written or anonymous complaint, in addition to the ability to investigate rumors based on "real suspicion"
- Means to maintain confidentiality
- Provision on retaliation, which must expressly state the illegality of retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation related to a claim of sexual harassment
- Process for designating the investigative entity that will adjudicate the complaint
- Other legal remedies and forums for victims (i.e., WOA, PRDOL, Equal Employment Opportunity Commission), and instructions on how to contact said agencies
- Information on federal and state legal provisions relating to sexual harassment, resources available to victims, and an express statement that there are additional applicable local laws
- Complaint form for employees to report incidents of sexual harassment, which must include a provision for employees to identify if there have been previous complaints of sexual harassment
Notably, Act 82 also provides for the creation of a digital portal for the filing of complaints online and for the public to obtain additional information regarding sexual harassment in the workplace and related protections. Complaints filed through this portal will be evaluated by the WAO and the PRDOL.
Further, in the case of public agencies, instrumentalities or corporations, the Act requires that any investigation regarding a sexual harassment complaint be conducted by a different public entity or instrumentality. Personnel in charge of dealing with matters of sexual harassment at the agency where the alleged sexual harassment conduct occurred must refer any information received to the agency that the Office of Administration and Transformation of Human Resources in the Government of Puerto Rico (OATH) identifies to carry out the particular investigation. For these purposes, the OATH must create regulations within a period of 30 days from the approval of Act 82.
The Act took effect immediately upon its approval.
Puerto Rico employers are advised to update their current sexual harassment policies and complaint procedures to ensure compliance with these new statutory requirements.
1 Notwithstanding the fact that the Act took effect immediately after its signature, these model protocols have yet to be published.