Author: chris

On June 24, 2022, the Supreme Court of the United States (“SCOTUS”) overturned Roe v. Wade, holding that there is no constitutional right to choose an abortion. Under the Court’s rationale, the States now are free to delimit via legislation the scope of abortion rights within their jurisdictions.  

In his majority opinion, Justice Alito, joined by four other Justices, held that Roe and Planned Parenthood v. Casey were incorrectly decided and that their premise that the right to choose an abortion is part of the concept of “liberty” protected by the Fourteenth Amendment’s Due Process Clause was erroneous. Holding that the right to have an abortion is not expressly preserved in the Constitution nor is it deeply rooted in the Nation’s history and tradition, the majority opinion determined that states were free to prohibit or limit abortion at their discretion. 

Although joining the majority opinion, Justice Thomas also wrote separately to invite the Court to revisit (and similarly overrule) all cases grounded on an expansive interpretation of the concept of “liberty” in the Fourteenth Amendment, and indeed all cases grounded on the doctrine of substantive due process, including cases that currently guarantee the right to contraception, same-sex consensual sexual relations, and same-sex marriage. It will be interesting to see if future Court decisions in fact follow the path laid out by Justice Thomas. Such a result seems entirely plausible given the current composition of the Court, and as cited by Justice Thomas, would impact numerous other individual rights that had been recognized in the Court’s jurisprudence over the last few decades.

Notably, Chief Justice Roberts did not join the majority opinion and instead wrote separately, concurring only in the judgment of the Court. In his view, the Court should have only decided the narrow question before it regarding the constitutionality of Mississippi’s statute prohibiting certain abortions and should have stopped short of overruling Roe and doing away with the previously recognized limited constitutional right to choose an abortion.    

As a result of the Dobbs decision, the power to regulate or legislate with respect to abortion rights is now in the hands of the States and territories. In Puerto Rico, competing bills have already been filed (although one has been temporarily withdrawn) to legislate on the issue in response to the SCOTUS opinion. One bill filed before the Puerto Rico House and later withdrawn, PC 1407, sought among other things to criminalize abortions, establishing a 99-year jail term for a woman who commits or consents to an abortion. In contrast, PC 1403 seeks among other things to characterize the termination of a pregnancy as an essential healthcare service, part of the sexual and reproductive rights of women in Puerto Rico and protects doctors and other health professionals who perform or assist in such services. An earlier bill which has been approved in the Senate and is currently pending approval in the House, PS 693, would prohibit most abortions after 22 weeks except in the case of a medical emergency to prevent the death or disability of the mother.

Any legislation must conform to the strictures of the Puerto Rico Constitution, as interpreted by our Supreme Court. In Pueblo v. Duarte, our Supreme Court reversed the conviction of a doctor duly licensed to practice medicine in Puerto Rico who was convicted for terminating a pregnancy. At that time, our penal code prohibited abortions except where there was a “therapeutic indication” and to preserve the health of the pregnant woman. Still today, our current penal code broadly prohibits abortions except as therapeutically indicated by a duly licensed physician to protect the health or life of the woman. The Duarte majority based its holding not on the Puerto Rico Constitution but rather on the right to choose afforded under the U.S. Constitution as then-recently held in Roe. And importantly, even though the Puerto Rico Constitution includes an express right to privacy which is lacking in the U.S. Constitution, it also noted that the right to choose an abortion afforded under Puerto Rico’s Constitution was coextensive with, and not broader, than the right recognized at that time under the U.S. Constitution. This limitation has been expressly acknowledged and reiterated in at least one subsequent opinion of our Supreme Court. In fact, even while Roe was still the law of the land, shortly after Duarte the Puerto Rico Supreme Court upheld the conviction of a doctor who performed an abortion, in the absence of a therapeutic indication to protect the health or life of the woman. SCOTUS having now overruled Roe, the obvious question now becomes whether the rationale of Duarte should be similarly discarded, and in such event, what is the effect on a woman’s right to choose in Puerto Rico?

In response to instant public debate on this particular issue following Dobbs, the Puerto Rico Department of Justice released a statement reiterating Duarte as the “prevailing” rule of law in Puerto Rico, and in accordance therewith, stating that Article 98 of Puerto Rico’s Penal Code does continue to allow for the right to choose an abortion under “therapeutic indication” diagnosed or recommended by a duly licensed doctor in Puerto Rico for the protection of the woman’s physical and mental health. That said, the Secretary of Justice recognized that because of Dobbs it is now up to the Puerto Rico Legislature to regulate over this issue.

It is evident that the decision in Dobbs has already had a direct and profound effect in public opinion. Regardless of the Puerto Rico Department of Justice’s assurances, there are legitimate doubts as to Duarte’s continuing applicability as a limit on legislative power. And if PC 1407 is any indication, there will be a push by certain groups to completely ban or criminalize abortions with fewer exceptions than currently recognized in our penal code. Given the current uncertain state of our constitutional precedent, it is likely that the Puerto Rico legislature will have the last say on the future of a woman’s right to choose. 

For further information, you can contact AMG’s Litigation Department at 787.756.9000.

By: Luis R. Pérez Giusti and Verónica M. Torres-Torres

On September 21st, 2021, the governor of Puerto Rico, Pedro Pierluisi, signed into law the Puerto Rico Minimum Wage Act, Act 47-2021 (hereinafter the “Act”). When he made the announcement, Pierluisi
expressed that, after more than 12 years without a raise to the federal minimum wage of $7.25 per hour, now through the PR Minimum Wage Act, on January 1st, 2022, the minimum wage salary in Puerto Rico
will be raised to $8.50 per hour.

Puerto Rico public policy
Through the recently enacted Act, it is the public policy of the Commonwealth of Puerto Rico to adequate the minimum wage with the cost of living in Puerto Rico, so that no worker lives under the poverty level
and is able to earn enough income to cover his/her basic necessities, promote progress and guarantee a better quality of life.

State minimum wage
The new minimum hourly wage will be increased as follows, unless the Minimum Wage Review Commission issues a decree varying it :
• Effective, January 1st, 2022 $8.50
• Effective, July 1st, 2023 $9.50
• Effective, July 1st, 2024, $10.50

The Minimum Wage Review Commission
In addition to the wage increases, the Act also creates the Minimum Wage Review Commission (“Commission”) to carry on the public policy of the government. The Commission will be ascribed to the Puerto Rico Department of Labor and Human Resources and will be composed of seven members, among which there will be at least four economists, representatives of the workers interests and of the employers
as well, along with the PR Secretary of Labor who will represent the public interest and will preside the Commission.

The Act details the Commission’s faculties and duties in addition to the qualifications and requirements of the position. The Commission will be responsible for the implementation of the public policy adopted
by the government; and among its tasks it will prepare reports, will periodically review the minimum wage and will approve mandatory decrees that will set the adequate minimum wage, which will be revised at
least once every two years. It is important to note that, aside from the first wage increase, the change in the minimum wage will not exceed more than 25% of the minimum wage previously approved. Under the Act, the Commission shall enact a mandatory decree to set forth the minimum wage for every worker in Puerto Rico and the state minimum wage will prevail as long as it is higher than the federal minimum wage.

The Commission is authorized to enact special mandatory decrees for “Administrators”, “Professionals” and “Executives” as set forth by the Regulation No. 13 of the PR Minimum Wage Board. The Commission
shall also issue a special mandatory decree on or before July 1st, 2022, for workers in the agriculture industry, including those excluded by the Fair Labor Standards Act (FLSA), and another special mandatory decree for tipped workers.

This part of the law reverts us to the era of Mandatory Decree Board which was abolished in the 90’s. Now, with this Commission it is as it we are going back in time. So, instead of moving forward, and create some uniform rules to simplify the management of the employees, we are moving in the wrong direction.

Employees covered by the PR Minimum Wage Act
As provided by the Act, the increase to the minimum wage will apply to those employees covered by FLSA.

However, the raise will not apply to the following employees: agriculture workers, public sector employees (those working in government agencies, instrumentalities, municipalities, the judicial branch and the legislative branch). The increase will not apply also to exempt employees (“Administrators”, “Professionals” and “Executives”) as defined by Regulation No. 13 of the PR Department of Labor. Tipped
employees shall be eligible to the federal minimum wage applicable to such employees, which along with the tips received, shall be able to reach the minimum hourly wage established by the Commission.

Also, expressly excluded from the Act are those employed by the United States Government, the Commonwealth of Puerto Rico with exception to those employees who work for public agencies or instrumentalities operating as private businesses. Employees of Puerto Rico municipalities were also excluded from the Act along with those workers covered by a collective bargaining agreement as long as their wages are equal or higher than the minimum hourly wage provided by this recently enacted Act.
What the law does not clarify is what happens to those employees that work for an employer that does not fall under the jurisdiction of FLSA, which are small employers that do not sell more than $500,000.00 in goods in a year. This is one of the unanswered questions in the law.

Violations and penalties
Any employer that refuses to comply with the Act, or disregards any of the provisions of the Act, will be penalized with a fine of no less than $500 nor higher than $5,000, subject to the Court’s discretion. In recurrent cases, fines will be of $5,000 to $10,000.

Also, the employer shall incur in civil liability for an amount equal to the double of the damages suffered by the employee. In those cases in which the judge cannot determine the damages amount may, it its discretion, impose a compensation between $500 to $5,000.

Please note that this is a new cause of action available to the employees. Previously an employee that was not compensated according to the law, had the option of filing a claim to recover the unpaid wages, plus a penalty imposed by law. Now, they can seek damages in addition to the make whole remedy. In our opinion, it is a terrible amendment as it will increase the claims against the employers.

Statute of limitations
Another change is the new statute of limitation to bring claims for unpaid wages. The Act increased the term from 1 year to 5 years from the last day of employment of the employee on the date the claims was filed. Also, the Act increased the period of the time in which the employee can claim the back wages from 3 years to 5 years. This requires the employer now to maintain payroll records for up to 10 years after the employee leave the company.

The new Chambers & Partners Global Practice Guide- Employment 2021 covers 52 jurisdictions. The Puerto Rico chapter of the guide, contributed by AMG, provides the latest legal information on the legislative initiatives to cope with the COVID-19 crisis, terms of employment, non-compete and non-solicitation clauses, data privacy law, foreign workers, the role of unions, and employee representative bodies, termination of employment, employment disputes and dispute resolution. It also discusses the latest trends and developments in the area of Employment Law in Puerto Rico.

Puerto Rico remains under a state of public health emergency first announced on March 12, 2020, in connection with the COVID-19 pandemic. In response to the sharp increase in COVID-19 cases on the island, on August 5 and August 11, 2021, governor Pedro Pierluisi issued Executive Orders, 2021-062 and 2021-063, which extend previously-announced vaccination requirements for employees in the public sector (Executive Order 2021-058) to government contractors, employees in the healthcare industry, as well as employees in the hospitality and tourism industry (including hotels, inns, and other lodgings. Concessionaries and other businesses operating within the vicinity of or in connection with these industries have been encouraged to adopt this requirement. Furthermore, all persons who wish to stay at any hotel, inn, short-term rental (including those using internet platforms such as Airbnb, VRBO, and others), must present evidence of vaccination against COVID-19 or a negative COVID-19 test. Executive Order 2021-062 goes into effect on August 16, 2021. The employees covered by Executive Order 2021-062 must be fully vaccinated by September 30, 2021.

In addition, Executive Order 2021-063, which goes into effect on August 23, 2021, sets forth that all restaurants, bars, cafeterias, theaters, cinemas, coliseums, event venues, and any other establishment that serves food or beverages must require their employees to be vaccinated against COVID-19. Employees must present evidence that they have received at least one dose of the vaccine on or before August 23, 2021, and the second dose no later than October 7, 2021.

Subsequently, on August 19, 2021, governor Pierluisi issued Executive Order 2021-064, which further extends local vaccine mandates to include employees of gymnasiums, beauty salons, barbershops, spas, childcare centers, casinos, supermarkets, grocery stores (including business authorized under the WIC Program) and gas stations. These employees must show proof of their first dose of the vaccine on or before August 30, 2021, and of their second dose no later than October 15, 2021.
There are only limited exceptions to the newly-enacted vaccine mandates:

– Documented medical reasons;
– Sincerely held religious beliefs; and
– Evidence of having recovered from COVID-19 in the last three (3) months, along with a medical certification that the employee is no longer contagious.

Any employee who is unable to or refuses to get vaccinated due to covered by an exception to the Executive Orders discussed above must present a weekly negative COVID-19 test. An employee who cannot comply with the foregoing must not be allowed to present themselves to work and must be placed on leave (paid or unpaid, depending on the employer’s policies).

Moreover, all patrons of establishments covered by the aforementioned Executive Orders must present evidence of COVID-19 vaccination; a negative COVID-19 test performed no more than seventy-two (72) hours prior to presenting themselves to the venue, or evidence that they have recovered from a COVID-19 infection within the last three (3) months and a medical certificate indicating that they are no longer contagious. Employers and private establishments are free to implement more restrictive measures.

Establishments who fail to comply with the directives set forth in these Executive Orders shall be subject to fines and criminal penalties, as well as restrictions on their operating capacity. The aforementioned requirements will remain in place until the state of emergency is lifted. Please be advised that it is expected that additional actions will be taken, including the implementation of further vaccination mandates, in order to encourage vaccination, reduce community transmission, and hasten reaching the threshold for herd immunity on the island.

We continue to monitor this situation as the COVID-19 pandemic evolves. For further information or, if you should have any questions or comments, or if you should require more specific guidance on this issue, please contact the Labor and Employment law team at AMG.

In a notable development for employers doing business in Puerto Rico, on 7 August 2020, the local government enacted Law 90, titled the Law to Prohibit and Prevent Workplace Harassment in Puerto Rico (our translation, hereinafter the ‘Workplace Harassment Act’), to prohibit workplace harassment (commonly referred to as ‘mobbing’). Previously, workplace harassment had not been recognised or protected under the law in this jurisdiction, although plaintiff-side practitioners had long argued for such protections. The law went into effect immediately upon its enactment. At this time, employers are expected to be in full compliance and have anti-workplace harassment policies in place. This, along with Puerto Rico’s Wrongful Discharge Statute, Law 80 of 30 May 1976; and strong local anti-discrimination and other workplace protections, distinguishes Puerto Rico from many other jurisdictions in the US. Puerto Rico is currently the only jurisdiction in the United States with a workplace harassment law in place, and all employers doing business here should ensure to have adjusted their policies and practices accordingly.

This workplace harassment statute applies to all employees in the private and public sector, including temporary and fixed-term employees. The Act defines the term ‘workplace harassment,’ and requires employers to take affirmative steps to reduce and eliminate it, including adopting and implementing anti-harassment policies. It also requires employers to address and investigate all allegations of workplace harassment.

In compliance with Article 9 of the Workplace Harassment Act, on 3 February 2021, the Puerto Rico Department of Labor and Human Resources issued Guidelines Regarding Workplace Harassment in the Private Sector in Puerto Rico (translation ours), aimed at providing employers with the necessary tools to enact their anti-harassment policies and procedures, and to clarify for both employers and employees the extent of their rights and obligations under the law.

The Workplace Harassment Act and its interpretative guidance provide a non-exhaustive list of the conduct and actions that shall be considered unlawful workplace harassment. The term ‘workplace harassment’ is defined as malicious conduct that is unwanted, repetitive and abusive, arbitrary, unreasonable or capricious, not related to legitimate business interests, such conduct may be verbal, in writing, or physical, and must be of a nature and severity that infringes on constitutionally protected rights. This includes protection against attacks to the employee’s reputation or private life, and risks against the employee’s health and integrity, among others. In sum, the law forbids conduct that creates a work environment that is intimidating, humiliating, hostile or offensive, which is not conducive to a reasonable person executing their duties or functions in a normal manner. Some of examples of prohibited conduct include jokes regarding an employee’s physical appearance; disregarding an employee’s work-related opinions or ideas in a humiliating way; imposing multiple disciplinary actions that are determined to be reckless; and making public comments regarding an employee’s private or family life. The law requires that the conduct objected to be recurrent and persistent, so that a single act of harassment shall not constitute unlawful workplace harassment. That being said, employers should take care to investigate allegations of isolated incidents in order to prevent their reoccurrence from becoming actionable mobbing.

It is important to reiterate, however, that in order to constitute unlawful workplace harassment, the conduct in question must truly be unrelated to the employer’s legitimate business interests. Meaning that reasonable actions directed to ensure the proper operation of the workplace will not be considered mobbing, even if they are uncomfortable, unpalatable, or unpopular to employees. For example, the legitimate exercise of disciplinary authority of a supervisor over a subordinate; requests or demands of confidentiality designed to protect the products or services provided by the employer, or requirement duty of loyalty of the employee towards their employer; the implementing or promoting policies, procedures, and memoranda to direct the employer’s operations, maximise efficiency and evaluate the employees’ performance in accordance with the employer’s objectives; requests for the execution of overtime work, additional duties or collaboration when needed for purposes of continuity of services or in order to resolve unanticipated or complex situations that impact the employer’s operations; and affirmative actions taken by the employer in order to comply with its duties, obligations and prohibitions, as defined by law.

Given the dynamic nature of the workplace, the foregoing examples are not intended to be exhaustive. Employers are empowered to take any and all decisions and actions in furtherance of the administration of their business and human resources as are necessary, so long as they are not prohibited by law. Accordingly, the good faith evaluation and discipline of personnel, establishment of performance targets and standards, assignment of duties, training and counseling, as well as oversight of work performance are expressly permitted. Employees must be aware that the aforementioned acts make take place periodically and repeatedly and will still not be considered workplace harassment; as any such action by the employer, whether isolated or repeated, is within the employer’s managerial prerogative.

Employers should take note that, unlike some other prohibited forms of harassment which require evidence that they were perpetrated by a superior towards a subordinate, such as quid-pro-quo sexual harassment, unlawful mobbing can take place by and between employees of any rank, be it by the employer, its supervisors, agents, or any other type of employee. Workplace harassment by third parties and non-employees is also prohibited.

Pursuant to the law, the employer shall be liable for the actions of its supervisors and other employees who engage in workplace harassment, when the employer, its agents, or its supervisors ‘knew or should have known’ of the improper conduct, unless the employer can prove that it took immediate and appropriate action to stop the conduct. This defence is not available when it is determined that the employer itself engaged in the prohibited conduct. This law also establishes that the workers’ compensation immunity for work-related injuries will not apply when it is determined that the condition suffered by the employee was prompted by a pattern of workplace harassment. It also authorises the State Insurance Fund to recover expenses incurred in providing treatment to the employee in such situations. Opposing, denouncing, or participating in investigations related to workplace harassment shall be considered protected activity under Puerto Rico’s Anti-Retaliation statute, Law No 115-1991.

Employers and their in-house counsel should take note that the law provides a statutory remedy for unlawful workplace harassment equal to double the amount of any damages proven at trial by the employee, plus attorney’s fees. As a result, even a nominal award can become a substantial amount. However, before any action is filed in court, the employee must exhaust both internal remedies within the company and external remedies with the Alternate Dispute Resolution Bureau of the Judicial Branch through a mediation process. This is new, as under other local harassment statutes, mediation is not required before filing a judicial complaint.

Last week, Governor Pedro Pierluisi signed into law, Act 15-2021, which amends Act No. 42-2017, “Act to Manage the Study, Development, and Research of Cannabis for Innovation, Applicable Standards and Limits”, to provide employment protections to registered and authorized medical cannabis patients by creating a protected category for these employees in their workplaces.

Under Act 15-2021, employers shall not discriminate against an employee who is a registered and authorized medical cannabis patient in the process of recruitment, hiring, promotion, discipline, or termination, or with regards to any other terms and conditions of employment.

These employment protections are not absolute, as Act 15-2021 recognizes certain exclusions if the employer can establish, by a preponderance of the evidence, any of the following:

1. The use of medical cannabis represents a real threat of harm or danger to others or property;

2. The use of medical cannabis interferes with the employee’s performance and essential job functions;

3. The use of medical cannabis by the employee would expose the employer to the risk of losing any license, permit, or certification related to any federal law, regulation, program, or fund; or

4. The registered and authorized patient ingests or possesses medical cannabis in the workplace and/or during working hours without the employer’s written authorization.

Act 15-2021 provides that no employer shall be penalized or denied any license, contract, permit, certification, or benefits under the Commonwealth of Puerto Rico for the sole reason it employs medical cannabis patients.

The provisions of Act 15-2021, are to be interpreted liberally in favor of the registered and authorized patients of medical cannabis.

AMG will remain alert for future developments since the Medical Cannabis Regulatory Board and the Puerto Rico Department of Labor and Human Resources must adopt any regulations or administrative measures necessary to ensure the effective implementation of Act 15-2021 within 90 days by October 27, 2021. Act 15-2021 is effective immediately.

Through this recently enacted legislation, Puerto Rico joins a handful of states that have adopted policies that somehow address anti-discrimination protections for medical cannabis patients. AMG advises its clients to revise their drug testing and discrimination policies to comply with Act 15-2021. For further information or, if you should have any questions or comments, you can consult the Labor and Employment law team at AMG.