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If you have any questions in regards to the above, please do not hesitate to contact our offices so that we may explain the amendments to the provisions of the Code in more detail. Our address is:

 

Fiddler González & Rodríguez, P.S.C., P.O. Box 363507, San Juan, PR 00936-3507. Our fax (787) 759-3108.

 

We welcome your questions and comments.


José J. Santiago

787-759-3129

jsantiag@fgrlaw.com

 

Carlos A. Padilla

787-759-3149

cpadilla@fgrlaw.com

 

Antonio L. García

787-759-3221

agarcia@fgrlaw.com

 

Edgardo Barreto

787-759-3170

ebarreto@fgrlaw.com

 

 

 

 

BILL TO PROHIBIT LABOR HARASSMENT APPROVED BY THE LEGISLATURE

 

The Puerto Rico Legislature approved the Bill to Prohibit and Prevent Labor Harassment in Puerto Rico. On June 4, 2014, the Bill was sent to the Governor for his signature. If signed, the Law will become effective immediately after approval.


The Law establishes a vigorous public policy against all types of labor harassment that affect the worker's performance, alter the industrial peace and constrain the worker's dignity. The Law would apply to all employees who are subject to labor harassment regardless of the nature of their job, category, position, classification or the duration of the employment contract.


I. DEFINITIONS

1. Employee - means any person who works for an employer and receives compensation for working. The term will be defined in the broadest manner possible.

2. Employer - means any judicial or natural person, all branches of the Government of Puerto Rico, as well as their instrumentalities or public corporations, municipal governments and their instrumentalities or municipal corporations which employ persons through any kind of compensation and their supervisors. It also includes all private employers, for or non-profit, labor organizations, as well as employment agencies.

3. Labor harassment - means all malicious, undesired, repetitive and abusive conduct by an employer, its supervisors or employees, whether verbal, written or physical, unrelated to the legitimate interests of the company that generates a hostile, intimidating, humiliating and offensive atmosphere which interferes with the employee's tenure on the job, may result in the employee being undermined, overlooked or destroyed professionally and violates his civil and constitutional protected rights, including his dignity


II. LIABILITY

The employer who promotes or allows labor harassment will be civilly liable toward the affected persons.


The employer must:

 

Take all necessary measures to eliminate or reduce to a minimum the occurrence of labor harassment in the workplace. Adopt and implement the necessary internal policies needed to prevent, discourage and avoid labor harassment in its work place. Investigate all complaints and impose the appropriate sanctions when applicable.

 

The employer will always be liable for acts of labor harassment by its supervisors except when it can show that it took immediate and appropriate action to correct the situation as soon as it found out about the harassment. In that case the employer, but not the harassing supervisor, will have immunity as to such claims.


In situations where the labor harassment involves several employers (i.e. temporary employment agencies, security or maintenance companies or other contractors), all the employers involved will have the obligation to investigate the claim of labor harassment, regardless of whether or not they are the direct employer of the employee.


The employer will be liable for the labor harassment acts of third parties towards its employees if the employer or its supervisors knew about such conduct and did not take immediate and appropriate action to correct the situation.

 

III. STATE INSURANCE FUND IMMUNITY

 

Employers cannot claim the immunity provided by the PR Workers' Compensation Law (Law 45 of April 18, 1935). However, the employee can receive the services provided by the State Insurance Fund (SIF) and, if it is determined that the employee's health condition is due to a pattern of labor harassment, the SIF will recover the funds spent in the treatment from the employer.

 

IV. RETALIATION

 

Any person who reports acts of labor harassment will be protected by this Act according to the provisions of PR Law 115 of 1991, the Anti-Retaliation Law. The employer will be liable for any act that affects the work opportunities and conditions of any employee who has opposed a practice constituting labor harassment, or who has denounced, testified, collaborated or in any other form participated in an investigation or procedure related to labor harassment or when the employer does not take the necessary measures to provide the employee adequate protection.


Employers can not terminate, threaten or discriminate against an employee with regards to the terms, conditions, compensation, placement, benefits or privileges of employment because the employee offers or tries to offer, verbally or in writing, any testimony, expression or information before any union, human resources office or other employer office, legislative, administrative or judicial forum in Puerto Rico when said statements are not defamatory nor constitute the disclosure of privileged information.


The employee must prove the violation through direct or circumstantial evidence and may establish a prima facie case proving that he/she denounced an act of labor harassment and that he/she was subsequently fired, threatened or discriminated against. Once the above has been established, the employer must allege and prove a legitimate, non-discriminatory reason for the termination. The employee would then have to allege and prove that the reason alleged by the employer is a pretext for the termination.

 

V. EXAMPLES OF CONDUCT THAT CONSTITUTES LABOR HARASSMENT

 

The determination whether a certain conduct constitutes or not labor harassment will depend on the totality of the circumstances and the facts proven in each case.

The following acts will be considered conduct constituting labor harassment:

1. Injurious, defamatory or harmful statements about the person, with the use of obscene words;

2. Hostile and humiliating comments of professional disqualification made before the work colleagues;

3. Unjustified threats of termination made before work colleagues;

4. Multiple disciplinary complaints from alleged harassers whose temerity is shown by the results of the respective disciplinary procedures;

5. Humiliating disqualification about work proposals or opinions;

6. Comments or mockery made in public directed towards the employee about his/her physical appearance, way of dressing.

7. Public mention of matters belonging to the employee's personal and family intimacy;

8. The imposition of duties outside of the regular duties, openly disproportionate demands regarding compliance with assigned tasks and the abrupt change of work location or of the contracted work without any objective reason involving the business or services provided by the employer; and,

9. The refusal of the employer or other employees to provide materials or information which are relevant and necessary to the performance of the work.


The following do not constitute labor harassment:

1. Acts designed to exercise the legitimate disciplinary authority of supervisors over the employees.

2. The requirement of protection of confidentiality for the services of the employer or of employee loyalty towards the employer.

3. The preparation or issuance of regulations or memos to direct the operation, maximize efficiency and evaluate the work of the employees.

4. The request that the employee perform additional duties when necessary for the continuity of service or to resolve difficult problems in the employer's operations and services.

5. Administrative actions directed to complete a work contract with just cause or for a fixed period of time.

 

VI. COMMUNICATION AND TRAINING

 

Employers must:

1. Post an explanation of this Law in the workplace.

2. Train employees about the policies and procedures adopted to prevent and avoid labor harassment in the workplace.

3. Distribute to all employee the policies and procedures regarding labor harassment in the workplace. Employers will have one year from the Law's effective date to adopt and implement a protocol to handle complaints about labor harassment. The Secretary of Labor may allow, through regulation, that employers can use the existing protocols to handle complaints.

 

VII. PROCEDURES

 

Employees must use the procedure and protocol adopted by the employer (which must comply with the requirements that will be established by the Department of Labor) to file a claim.


If the claim is not resolved, the employee must file the claim before the Department of Justice's Bureau of Alternate Methods to Conflict Resolution.


For employers with 15 employees or less, the Bureau of Alternate Methods can be the first step in the process.

 

VII. PROCEDURES

 

Employees must use the procedure and protocol adopted by the employer (which must comply with the requirements that will be established by the Department of Labor) to file a claim.


If the claim is not resolved, the employee must file the claim before the Department of Justice's Bureau of Alternate Methods to Conflict Resolution.


For employers with 15 employees or less, the Bureau of Alternate Methods can be the first step in the process.

 

VIII. CIVIL LIABILITY

 

Any person responsible for labor harassment will incur in civil liability of twice the damages caused to the employee. In addition, the person can be criminally liable. In lawsuits against the Government and its instrumentalities, the court can order reinstatement with back pay. It is not clear if reinstatement with pay is available against private employers, except in cases of retaliation.

 

IX. STATUTE OF LIMITATIONS

 

The Law establishes a one-year statute of limitations for filing actions. The Law states that the one-year period begins to run one year after the moment the employee felt that he had been harassed. While this appears to be a poorly drafted sentence, in effect it extends the statute of limitations to two years.

 

X. SUMMARY PROCEEDING

 

In cases against private employers, the plaintiff can file the cause of action under the expedited proceeding provided by Law No. 2 of October 17 of 1961.

 

XI. REGULATIONS

 

The Law provides 180 days to the Secretary of Labor to approve regulations to administer the Law.

 

XII. CONCLUSION

 

Due to the very broad definitions and prohibitions included in the Law, it will have a significant impact on employers. Therefore, we strongly recommend:

1. Review the anti-discrimination and anti-harassment policies, including the grievance procedures.

2. Develop mandatory trainings to all personnel on this topic.

3. Train Human Resources personnel on appropriate investigation techniques, with special emphasis on drafting the investigation report.

 

The Labor Law Group at Fiddler González & Rodríguez, P.S.C., will issue the FGR LABOR WATCH with information of legal issues and developments in areas of interest to our friends and clients. If you know anyone who would like to receive the FGR LABOR WATCH, please feel free to forward this newsletter. For more information about any matter raised in this Labor Watch, please contact your usual FGR labor lawyer or José A. Silva Cofresí at jsilva@fgrlaw.com.

©2014 FIDDLER GONZÁLEZ & RODRÍGUEZ, P.S.C. Permission is granted to view, store, print, copy or distribute the content of this newsletter for noncommercial or personal use, provided you do not alter it and you give us proper credit. The content of this newsletter is for informational purposes only. It is not legal advice or advertising. In addition, the above discussion has been provided in general terms and, therefore, should not be relied upon as legal advice applicable to a specific set of facts and circumstances. Before taking legal action, consult a lawyer you trust. Although we will try to be accurate, you cannot rely on its applicability to your specific problem without consulting your lawyer. Fiddler González & Rodríguez, P.S.C. and the members of the Labor Law Group assume no responsibility to inform you of additional changes in law or any other legal issues related to matters addressed in this email of which we may become aware after the date hereof. This newsletter is not intended to create an attorney-client relationship between you and our firm or any of our attorneys. If we are not already representing you, be mindful that your email communications to any of our lawyers will not be treated as privileged or confidential until you ask us to represent you, we first conduct a conflict of interest search, we agree to represent you and you sign an engagement letter from the law firm.

***IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any United States federal tax advice in this communication (including any attachments) is not intended or written by Fiddler González & Rodríguez, P.S.C. to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. **

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