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Puerto Rico’s New Guidelines on Workplace Harassment/Bullying Clarify Protocols for Employers

February 22, 2021

The Puerto Rico Department of Labor recently released guidelines on Law 90-2020, which seeks to prohibit workplace harassment and bullying, whether or not tied to a protected category. Employers should comply with posting requirements and review and update their current policies to ensure compliance with the law.

On February 3, 2021, the Puerto Rico Department of Labor (PRDOL) issued guidelines on complying with Law 90-2020, signed August 7, 2020 (Law 90). Law 90 is meant to prohibit and prevent workplace harassment/bullying even if not tied to a protected category, and the PRDOL guidelines (while lacking legal authority) explain what employers should include in their protocols as well as how they can comply with the law’s posting requirements. Employers have until August 2, 2021, to adopt protocols that comply with Law 90.

What Is Workplace Harassment/Bullying?

Workplace harassment/bullying is defined in both the guidelines and Law 90 as including malicious, unwanted, repetitive, abusive, arbitrary, unreasonable, and/or capricious conduct (verbal, written, and/or physical) outside the legitimate interests of the employer, unwanted by the person, which infringes on the person’s protected constitutional rights (such as the inviolability of the dignity of the person; protection against abusive attacks on the person’s honor, reputation, and/or private or family life; and the protection of the worker against risks to health or personal integrity in the workplace), and which creates an intimidating, humiliating, hostile, or offensive work environment, unsuitable for a reasonable person to perform his or her duties or tasks in a normal manner. Importantly, unlawful workplace harassment/bullying under Law 90 does not have to be tied to any protected category under applicable discrimination laws.

Workplace harassment/bullying includes acts committed repeatedly by an employer and/or its agents, supervisors, or employees. It is important to note that multiple different acts may constitute repetitive behavior that qualifies as workplace harassment/bullying. Moreover, although repetitiveness of the acts in question is required, Law 90 also requires that employers prevent workplace harassment/bullying and that they investigate all allegations of such conduct.

The guidelines and Law 90 provide a nonexhaustive list of examples of behavior that constitutes workplace harassment/bullying, such as insulting, defamatory, or harmful expressions about the person, with the use of profane words; hostile and humiliating comments of professional disqualification expressed in the presence of coworkers; unfounded threats of discharge in the presence of coworkers; and rejection of work proposals or opinions in a humiliating manner, among others. The guidelines and Law 90 also provide a nonexhaustive list of examples of conduct that will generally not violate Law 90, including routine coaching and counseling, such as feedback about and correction of work performance, and reasonable work assignments, such as shift, post-shift, and overtime assignments.

Protocol and Posting Requirements

According to the guidelines, an effective policy/protocol should include the following, at a minimum:

  • Policies against workplace harassment/bullying and an employer’s responsibilities
  • Examples of behaviors that may constitute workplace harassment/bullying
  • Declaration that acts of workplace harassment/bullying can carry disciplinary actions
  • Supervisor and manager responsibilities in preventing or identifying situations that may constitute workplace harassment/bullying
  • Declaration of confidentiality for any person who alleges workplace harassment/bullying and during the investigation process, as well as a prohibition on retaliation for reporting
  • Process for presenting complaints of workplace harassment/bullying (which must be activated immediately upon presentation of allegations)
  • Investigation process that includes timeframes during which the investigation will be undertaken
  • Steps to exhaust remedies that Law 90 provides
  • Establish how the duty to post and distribute will be met, the date that the protocol was adopted, and the term for its revision

The guidelines expand on what may be included in the protocol to satisfy each of these requirements.

The guidelines also discuss the requirement to post the contents of the reach of Law 90 in a place that is visible to all employees. If all employees work remotely, this can be distributed via electronic means. The protocol should be distributed to all employees, including new employees upon hire.

Training Requirements

While there are no specific requirements on trainings, the PRDOL recommends having trainings, orientations, and seminars for employees on workplace harassment/bullying. It is important for employees to be aware of examples of workplace harassment/bullying, the conduct that will not be tolerated in the workplace, and that every person who commits workplace harassment/bullying may be civilly responsible in his or her individual capacity.

Process for Exhausting Remedies

An employee who is experiencing workplace harassment or bullying should follow the following procedures:

  • The employee should communicate the workplace harassment/bullying allegations according to the internal process adopted by the employer.
  • If the internal processes are ineffective, the employee may look for assistance with the Alternate Dispute Resolution Bureau of the Puerto Rico Judiciary.
  • If the parties do not accept mediation or the mediator does not recommend mediation, the employee may file a court complaint.

There is a one-year statute of limitations for workplace harassment/bullying claims under Law 90.

Conclusion

Employers should comply with posting requirements and review and update their current policies to ensure compliance with Law 90. Additionally, it is important that employers educate their employees on what conduct constitutes workplace harassment/bullying under Law 90 and provide employees with newly enacted protocols that comply with this law.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact the author, Melissa C. Rodriguez.