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 February 3, 2021, the Puerto Rico Department of Labor (PR DOL) published the “Guidelines on Workplace Harassment in Puerto Rico’s Private Sector” (Guidelines). The Guidelines were drafted pursuant to the mandate in Section 14 of Act No. 90 of August 7, 2020, also known as the “Act to Prohibit and Prevent Workplace Harassment in Puerto Rico” (“Act 90” or “the Act”), which required the PR DOL to publish guidelines to administer and implement its provisions within 180 days of the Act’s enactment. Employers now have 180 days, i.e., until August 2, 2021, to adopt and implement internal workplace harassment protocols incorporating the Act’s requirements.
Before delving into several aspects of the Guidelines, it is important to note that the Guidelines function more as an instruction manual for employers on Act 90 than as a legally binding regulation. In other words, the Guidelines themselves lack authoritative power and state directly that Act 90 is the only statutory authority in Puerto Rico on workplace harassment. Although these Guidelines are not binding upon the courts, we can expect that they will be cited for their persuasive value. The following are five key takeaways from these Guidelines.
FIRST: Mirrored Definitions. The Guidelines copy the Act’s expansive definitions for “employee” and “workplace harassment” but limit the broad definition of “employer” to only those in the private sector and to worker associations with employee participation, presumably because the Guidelines apply only to the private sector. The Guidelines, like Act 90, recognize that “workplace harassment” can occur in any direction regardless of the organizational dynamics in the workplace, including acts made by third parties or persons not employed by the employer.
SECOND: Insights on Examples. The Guidelines contain entire sections echoing Act 90’s non-exhaustive list of conduct that may or may not be considered workplace harassment, and provides further input. For instance, the Guidelines remind employers that legitimate business measures that affect employees, such as disciplinary actions or the approval of a new policy, are not considered workplace harassment. Similarly, the Guidelines point out that although certain examples of harassment in the Act’s list hinge on whether or not they are done in public, the definition of “workplace harassment” does not exclude acts done in private. In other words, conduct that occurs behind closed doors may be considered harassment under the law provided it complies with the definition of “workplace harassment.”
THIRD: Duty to Investigate. Per Act 90, to be considered workplace harassment, the hostile conduct must be recurring. Despite this repetition element, the Guidelines underscore that pursuant to the Act, employers are required to investigate all instances of alleged workplace harassment. On this topic, the Act requires employers to adopt an internal procedure through which employees can channel grievances of workplace harassment, and employers can conduct subsequent investigations. The Guidelines explain that employers may use existing procedures for this purpose, such as those for channeling sexual harassment grievances, but that since Act 90 places more of an emphasis on internal investigation and resolution, in contrast to other employment statutes, a compliant protocol requires a special focus that existing procedures might not have. As such, special care must be taken when drafting the internal procedures for channeling workplace harassment grievances, and in complying with the recommendations in the Guidelines.
FOURTH: To Publicize and Educate. The Guidelines expand on the employer’s notification requirements established in Section 9 of the Act. The Guidelines explain that employers must publish Act 90’s content in the workplace, which the Guidelines clarify is a poster requirement. The Guidelines also explain that this duty also requires employers to provide guidance to employees about the established protocols in the workplace. These protocols must inform employees about workplace harassment and establish an internal procedure for investigating employee complaints. Specifically, the Guidelines provide that at a minimum, an effective workplace harassment protocol under Act 90 must contain: (a) a statement about the employer policy against workplace harassment and the employer’s responsibilities; (b) examples of conduct that may constitute workplace harassment; (c) a declaration that engaging in workplace harassment may entail disciplinary action; (d) supervisors’ and management’s responsibilities to prevent and identify situations that may constitute workplace harassment; (e) a statement about confidentiality regarding the aggrieved employee and the investigation process as well as the employee’s protection against retaliation; (f) the grievance process; (g) the investigation procedure; (h) guidance about Act 90’s requirement to exhaust internal remedies and mediation systems as a condition to filing suit in court; and (i) details about the protocol’s adoption, publication and revision.
The Guidelines provide a sample of an internal protocol that incorporates Act 90’s mandates, which employers can adopt or modify as they see fit. Nevertheless, because of the Act’s broad definitions and punitive liabilities, employers should strongly consider their particular circumstances and administrative realities before adopting the provided standardized template.
FIFTH: Post-Grievance Process. According to the Act, an employer that experiences or permits workplace harassment or fails to take measures to reduce or eliminate workplace harassment will be subjected to civil responsibility. Before aggrieved employees can go knocking on the court’s doors, the Act provides that they must complete certain steps. The Guidelines reiterate and explain this pathway as a three-step process. First, the employee must notify the appropriate person or office of the harassment allegation in accordance with the employer’s internal protocol. In the second step, if the employee is not satisfied with the result of the internal process, the aggrieved employee must turn to the Bureau of Alternate Dispute Resolution of the Judicial Branch. As a final and third step, if the employee understands that mediation was not productive, the employee may go to court and provide proof of steps one and two.