February 10, 2021
On February 3, 2021, the Puerto Rico Department of Labor (“PR DOL”) issued the long-awaited Private Sector Workplace Harassment Guidelines (“Guidelines”). The Guidelines summarize and underscore many requirements contained in Act No. 90-2020, Law to Prohibit and Prevent Workplace Harassment (“Act 90”).
Act 90 defines “workplace harassment” as ill-intended, unwanted, repetitive, and abusive conduct; arbitrary, unreasonable, and/or capricious; verbal, written and/or physical; carried out by the employer, its agents, supervisors, or employees, unrelated to the legitimate interests of the employer’s business and which creates an intimidating, humiliating, or offensive work environment. The Guidelines are aimed at helping private sector employers adopt a suitable workplace harassment protocol or policy, complying with the statute’s requirements. Pursuant to the Guidelines, an effective policy should at the bare minimum include the following:
- A statement prohibiting workplace harassment;
- Examples of behavior that could constitute workplace harassment;
- A statement regarding disciplinary action for conduct deemed workplace harassment;
- Supervisors’ and managers’ responsibility in the prevention and identification of conduct which could be deemed workplace harassment;
- A statement any and all phases of an investigation regarding workplace harassment shall be confidential, and that any claimant is entitled to protection from retaliation and shielded by confidentiality;
- The process through which workplace harassment claims may be presented (and that the designated process will be followed as soon as allegations are raised);
- The investigation process (with timely deadlines);
- The steps to be taken by claimant in order to exhaust all available remedies (starting with internal complaint);
- How the contents of Act 90 will be published in the workplace; date on which the protocol is adopted; and the term for its revision.
The Guidelines state that the workplace harassment protocol, may be adapted or implemented into other policies in effect at the workplace such as sexual harassment policies or domestic violence policies. Employers have 180 days from February 3, 2021 (approximately 6 months) to adopt a protocol or policy as required by Act 90. The Guidelines include a sample protocol for employers and the full text of the Spanish-language Guidelines can be accessed here. Employers may use the sample protocol as a guide to prepare their own protocol tailored to their specific business circumstances. These Guidelines are not considered laws or binding regulation, they merely serve as a tool for employers in the preparation of their protocols. However, since they are issued by the PR DOL, it is likely that the courts will award them persuasive value.
Should you have any concerns or questions regarding additional employer obligations in this matter or other employment issues, our labor team is ready to assist you.
©2021 Jiménez, Graffam & Lausell. This material is provided for informational purposes only and it is not intended to constitute legal advice, nor does it create a client-lawyer relationship. Please consult with counsel before taking any actions based on the information contained within this material.