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Labor and Employment Update: United States Citizenship and Immigration Services
Issues Revised Employment Eligibility Verification Form I-9, Ends COVID-19 Flexibilities

Since 1986, the Immigration Reform and Control Act (“IRCA”) requires all employers to complete an Employment Eligibility Verification Form I-9 for all new hires to physically verify an employee’s identity and authorization to accept employment, within the first three (3) days of employment, and to retain the form for three (3) years after the date of employment, or one (1) year after the date of termination of employment, whichever occurs later.

On August 1, 2023, the United States Citizenship and Immigration Services (“USCIS”) published a revised version of Form I-9. After October 31, 2023, all employers must use the latest version of Form I-9 to verify the identity and employment eligibility of all new hires, and/or for the reverification of expiring employment authorization of current employees (if applicable). After October 31, 2023, previous versions of Form I-9 will not be accepted, and failure to use the revised Form I-9 may result in penalties. A revised Spanish Form I-9 dated August 1, 2023 is available for use in Puerto Rico only. All employers should make sure to use the latest version of Form I-9, available at https://www.uscis.gov/i-9.

In addition, beginning on August 1, 2023, employers may remotely examine employees’ Form I-9 documents, provided they are enrolled in the E-Verify program.

Changes to the latest version of Form I-9 include:

• Reduced Sections 1 and 2 to a single sheet.

• Moved the Section 1 Preparer/Translator Certification area to a separate Supplement A that employers can use when necessary. This supplement provides three areas for current and future preparers and translators to complete as needed. Employers may attach additional supplements as needed.

• Moved Section 3 Reverification and Rehire to a standalone Supplement B that employers can use as needed for rehire or reverification. This supplement provides four areas for current and subsequent reverifications. Employers may attach additional supplements as needed.

• Removed use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work” and clarified the difference between “noncitizen national” and “noncitizen authorized to work.”

• Ensured the form can be filled out on tablets and mobile devices by downloading onto the device and opening in the free Adobe Acrobat Reader app.

• Removed certain features to ensure the form can be downloaded easily. This also removes the requirement to enter N/A in certain fields.

• Improved guidance to the Lists of Acceptable Documents to include some acceptable receipts, guidance, and links to information on automatic extensions of employment authorization documentation.

• Added a checkbox for E-Verify employers to indicate when they have remotely examined Form I-9 documents.

On a separate note, the United States Immigration and Customs Enforcement (“ICE”) announced that, effective July 31, 2023, COVID-19 related flexibilities for the remote inspection of employee documents would end. These flexibilities were originally announced in March 2020 and updated in March 2021. Employers must now complete in person physical document inspections for employees whose documents were inspected remotely during the temporary flexibility period by August 30, 2023. This announcement gives employers additional time to complete in-person physical inspection of identity and employment authorization documents and annotate the Form I-9 for this population. As discussed above, employers enrolled in the E-Verify program may prospectively use remote examination for I-9 documents as of August 1, 2023.

Please contact Mariel Y. Haack, Esq., at (787) 281-1951, mhaack@amgprlaw.com, or Edwin J. Seda- Fernández, Esq., (787) 281-1822, seda@amgprlaw.com, if you have any further questions regarding the revised Form I-9 or the required in-person document inspections for employees whose documents were inspected remotely during the COVID-19 pandemic.

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Q&A: Disregarded Entities for Puerto Rico Income Tax Purposes

The concept of a disregarded entity was unknown for Puerto Rico income tax purposes until last year when it was introduced to the Puerto Rico Internal Revenue Code of 2011, as amended (the “PR Code”) by Act No. 52 of June 30, 2022.  By contrast, for United States income tax purposes, the disregarded entity tax treatment has been available since the late 1990s. 

The questions and answers below discuss the main topics related to disregarded entities for Puerto Rico income tax purposes:     

What is a disregarded entity?

A disregarded entity is an entity that is “ignored” as a separate entity from its owner for Puerto Rico income tax purposes.

Is a disregarded entity required to file a Puerto Rico income tax return?

No, a disregarded entity is not required to file a Puerto Rico income tax return.  Instead, the owner reports the entity’s income, expenses, gains, and losses on its own Puerto Rico income tax return.

Are all entities eligible to be treated as a disregarded entity for Puerto Rico income tax purposes?

No, only those Puerto Rico organized and non-Puerto Rico organized limited liability companies (LLCs) that have one member (i.e., owner) may elect to be classified as a disregarded entity for Puerto Rico income tax purposes; provided that for these purposes, a married couple under the community property regime is considered one owner. 

Which Puerto Rico organized LLCs are eligible to be classified as disregarded entities for Puerto Rico income tax purposes?

For Puerto Rico organized LLCs, the sole member must be a Puerto Rico resident individual or a married couple in which both are Puerto Rico residents.

What happens if a Puerto Rico organized LLC fails to timely elect to be classified as a disregarded entity for Puerto Rico income tax purposes?

It will be treated as a corporation for Puerto Rico income tax purposes, which is the default classification in the case of a Puerto Rico organized LLC, unless it timely elects to be classified as a pass-through entity (i.e., “Entidad Conducto”). 

Which non-Puerto Rico organized LLCs are eligible to be classified as a disregarded entity for Puerto Rico income tax purposes?

Those non-Puerto Rico organized LLCs that have a single member and are treated -by election or by operation of law- as a disregarded entity for income tax purposes in the United States, or their respective foreign country.  In these cases, the member does not have to be an individual, nor does it have to be a resident of Puerto Rico.  For these purposes, a married couple under the community property regime is considered one owner.

What happens if a non-Puerto Rico organized LLC that is classified -by election or by operation of law- as a disregarded entity in the United States, or in its respective foreign country, fails to timely elect to be classified as a disregarded entity for Puerto Rico income tax purposes?

Such entity will be classified as a pass-through entity (i.e., “Entidad Conducto”) for Puerto Rico income tax purposes, and it cannot elect to be treated as a corporation for Puerto Rico income tax purposes.

The classification as a disregarded entity for Puerto Rico income tax purposes is available for which taxable years?

In the case of a Puerto Rico organized LLC, the election is available for the taxable year 2022 and years thereafter.  For non-Puerto Rico organized LLCs, the disregarded entity classification is available for taxable year 2023 and years thereafter.

Is the classification as a disregarded entity for Puerto Rico income tax purposes mandatory for all eligible LLCs?

No, it is optional. The LLCs can elect to be classified as a pass-through entity (i.e., “Entidad Conducto”), which are generally subject to the Puerto Rico partnership income taxation rules, or as a corporation, as applicable. 

How does an eligible entity choose to be classified as a disregarded entity for Puerto Rico income tax purposes?

The election is made by filing Form AS 6045 entitled Partnership, Limited Liability Company or Corporation Classification Election with the Puerto Rico Treasury Department, along with the Puerto Rico income tax return.

When is the election to be taxed as a disregarded entity due?

The election is due on or before the due date for the owner to file its Puerto Rico income tax return for the taxable year in which the election will be effective, including extensions.

Can an eligible entity change its classification once an election to be classified as a disregarded entity for Puerto Rico income tax purposes is made?

Generally, yes, but the entity and its owners must consider the income tax implications and the conversion costs that may apply by reason of the change in classification as well as any limits or conditions that may apply.

Is a disregarded entity required to comply with the filing and payment responsibilities related to other taxes (i.e., not income taxes)?

Yes, a disregarded entity is solely disregarded for Puerto Rico income tax purposes.  The entity is required to comply with the filing and payment responsibilities related to other taxes (i.e., not income taxes), including but not limited to employment taxes, sales and use taxes, property taxes, municipal license taxes, among others.

What are the advantages of disregarded entity status?

  • No separate income tax return must be filed for the LLC; and tax compliance costs may be lower.
  • Lower income tax rates (avoid the effect of double taxation vis-à-vis being taxed as a corporation).

If disregarded entity classification is elected in Puerto Rico, does the entity have to make a similar election for United States income tax purposes?

No. The applicable requirements and rules for United States income tax purposes are different and separate from the Puerto Rico election.  Furthermore, electing disregarding entity for United States income tax purposes can have serious negative United States tax implications, particularly United States estate taxes and FICA/FUTA taxes, thus careful consideration should be given to such an election as there are very few instances where such a United States income tax election would be advisable.

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AMG’s Mariel Y. Haack to Participate in Puerto Rico HotelierCon 2023

On May 11, 2023, at 4:30pm, Mariel Y. Haack, Shareholder of AMG’s Labor and Employment Department, will participate as a speaker at the 2023 Puerto Rico HotelierCon, sponsored by the Puerto Rico Tourism Company.  Mariel will discuss how to approach mental health in the workplace from a legal perspective.  

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New PR Tax Reporting Requirement for Foreign Financial Accounts

It’s no surprise that Puerto Rico residents may have a financial account outside of Puerto Rico and the United States. But did you know that simply having a bank account in a foreign country, such as Spain and the Dominican Republic, might trigger reporting requirements both in the United States, and most recently in Puerto Rico?

Puerto Rico resident individuals that have a financial interest in financial accounts held outside of Puerto Rico (or the United States) with a balance over $10,000 during the previous taxable year must report such foreign financial accounts in their Puerto Rico income tax returns, commencing with the return due on April 17, 2023.  A taxpayer complies with this requirement by completing and filing Schedule CFF for each foreign financial account with a maximum value exceeding $10,000, along with his or her tax return.

It should be noted that this new Schedule CFF is similar to FinCEN Form 114 (formerly known as Report of Foreign Bank and Financial Accounts – FBAR) required to be filed by United States persons (including Puerto Rico residents) under the Bank Secrecy Act.

Financial accounts include:
– bank accounts
– investment accounts
– crypto asset accounts
– certain insurance policies
– future or options contract accounts

An individual is considered as having a financial interest in an account when:
– the individual is the owner;
– the owner is a third party acting on behalf of the individual;
– the owner is an entity in which the individual directly or indirectly owns at least 50% of all their value or voting power;
– the owner is a grantor trust for the individual’s benefit; or
– the individual has signature authority over the foreign financial account.

Failure to report foreign financial accounts will be subject to a $10,000 penalty and is classified as a misdemeanor.

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THE REPEAL AND UNCERTAIN FATE OF LAW NO. 41-2022

Since the inception of Law No. 41-2022, we alerted our clients and readers of the obstacles and challenges that lay ahead with the implementation of this legislation.  The Fiscal Oversight & Management Board for Puerto Rico (“the Board”) made no secret of its opposition to House Bill 1244-2022, which eventually became Law No. 41-2022, and advised the government of Puerto Rico not to repeal Law No. 4-2017, also known as the Labor Transformation and Flexibility Act.  The Board also vowed to take legal action to stop any legislation that would negatively impact the labor market flexibility that Puerto Rico needs, or any action that would interfere with PROMESA’s purposes.

Thus, on July 30, 2022, a few days after the effective date of the law, the Board provided the government of Puerto Rico with an economic impact analysis of Law No. 41-2022, and asked the government to suspend voluntarily such law no later than August 4, 2022.  Failure to act on the part of the government would result in legal action to nullify Law No. 41-2022.  The government, however, ignored the Board’s warning and decided to go full speed ahead with the implementation of the law.

The Board made good on its promise.  On September 1, 2022, it filed a complaint in federal court with two (2) counts to repeal Law No. 41-2022.  On September 29, 2022, the government answered and challenged the jurisdiction of the Court.  On the same day, the Board moved for summary judgment.  Accordingly, on March 3, 2023, after full consideration of the parties’ arguments and positions, the Court denied the government’s motion, holding that it may exercise jurisdiction, and granted in part and denied in part the Board’s summary judgment motion. 

Granting in part the Board’s summary judgment motion was sufficient for the Court to find that such entity was entitled as a matter of law to the relief sought.  Consequently, the Court held that Law No. 41-2022 was null ab initioThis means that the law and all actions taken to implement it are null and void from the beginning.  In other words, Law No. 41-2022 never had any legal effect.

The decision of the Court validates and gives new life to Law No. 4-2017.  However, the effects on employers of this new development could still be significant.  In the past few months the government of Puerto Rico took the stand that all employers in our jurisdiction had to comply with the provisions and amendments of Law No. 41-2022.  Thus, many employers modified personnel handbooks, offered employment under the new rules for probationary periods, calculated hours and paid Christmas bonuses according to the new guidelines of the Puerto Rico Department of Labor, and accrued vacation for part-time employees, to mention just a few.  Others are perhaps litigating or have settled cases under the changes brought by Law No. 41-2022.  Now the question turns out to be what to do next.  Changing rules again for the existing workforce could have unforeseeable effects, and could result in staff turnover and difficulties in attracting good candidates.        

This Court’s decision is not final yet.  According to some government spokespersons, including the Secretary of Labor and Human Resources of Puerto Rico, they are analyzing the legal grounds that support the decision and will determine if the best course of action is to appeal.  However, given this swift action and decisive language used by the Court, in addition to the good track record of the Board in PROMESA cases, it is likely that the decision will be upheld.  Moreover, the least that is needed at this moment is further confusion and instability from a government appeal.  At AMG we will follow closely all development related to Law No. 41-2022 and keep you updated.  For your ready reference, we are attaching our newsletter of January 27, 2017, which contains a summary of Law No. 4-2017.

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AMG win in PR Court of Appeal in a discrimination and retaliation case

AMG’s Labor and Employment Practice Team secured a win before the Puerto Rico Court of Appeals in a discrimination and retaliation case and a reversal of a penalty over an awarded bonus payment to an exempt employee.

In a well-reasoned Judgment, the Puerto Rico Court of Appeals confirmed a decision from the Puerto Rico Court of First Instance dismissing an exempt employee’s claim of unjust dismissal, age discrimination and retaliation, and reversed the trial court’s imposition of a penalty that is only required by law for non-exempt employees.

In this case, after a six-day virtual trial, the trial court concluded that Plaintiff’s allegations were meritless. However, said Court erroneously imposed a penalty over an awarded bonus payment to the Plaintiff, who was an exempt employee.  The Plaintiff appealed the dismissal of the claims and also argued that he was entitled to a higher amount regarding his bonus.  After the case was fully briefed,  AMG’s Labor and Employment Practice Team secured a win when the appellate court not only confirmed the trial court’s dismissal of the unjust dismissal, age discrimination and retaliation claims, but also eliminated the imposed penalty regarding the bonus.

Liana Gutiérrez-Irizarry and Luis Pérez-Giusti of the firm’s Labor and Employment Practice Team handled the case on behalf of AMG’s client.

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AMENDMENTS TO PUERTO RICO SEXUAL HARASSMENT IN THE WORKPLACE ACT

In August of 2022, the Puerto Rico Office for Women’s Advocacy (Oficina de la Procuradora de las Mujeres) made headlines when it fined a political party in Puerto Rico in the amount of $30,000, in connection with a sexual and workplace harassment claim. Among other findings, the Office for Women’s Advocacy determined that the political organization in question had failed to have protocols and procedures to handle sexual harassment claims.

The above was certainly one of the triggers for the government to amend Law No. 17 of April 22, 1988, better known as the Law to Prohibit Sexual Harassment in the Workplace. Accordingly, On September 27, 2022, Law No. 82 was approved and went into effect immediately.

The major changes introduced by Law No. 82-2022 can be summarized as follows:

1. The protection against sexual harassment is extended to paid or unpaid interns.

2. Employers must adopt a protocol to handle sexual harassment situations in the workplace.

3. Both the Office for Women’s Advocacy and the Puerto Rico Department of Labor will provide technical assistance for the drafting and implementation of this protocol.

The protocol required under Law No. 82-2022 must include, among other measures, the following:

1. A declaration to the effect that sexual harassment in the workplace is illegal.

2. Legal basis.

3. A declaration of purpose to prevent, discourage, and to avoid sexual harassment, as well as a zero- tolerance policy.

4. Definitions

5. Designation of those in charge of implementing the protocol, a description of the process to present complaints, and the name and contact information of those receiving complaints.

6. Who can present a complaint and options to do it verbally, in writing, or anonymously.

7. Measures to maintain confidentiality.

8. Antiretaliation provisions.

9. Examples of prohibited conduct.

10. Provisional measures to protect claimants and victims.

11. Other legal remedies available and forums for victims, as well as instructions to contact administrative agencies such as the EEOC, the Puerto Rico Department of Labor, and the Office for Women’s Advocacy.

12. A complaint form to denounce incidents of sexual harassment.

Finally, both the Puerto Rico Department of Labor and the Office for Women’s Advocacy will create an online site with information related to sexual harassment in the workplace and to file online complaints.

The labor and employment law team of AMG will keep all our clients and friends updated and well informed of all the latest developments.

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The Labor Reform of 2017 and Law Number 41-2022:  One step forward two steps back

On June 20, 2022, the governor of Puerto Rico signed into law the long-awaited amendments to Law No. 4-2017, the Labor Transformation and Flexibility Law of 2017 (also known as the Labor Reform of 2017). Now, with the benefit of an opinion of the Secretary of Labor and Human Resources of Puerto Rico issued on June 28, 2022, and a presentation by such agency on June 30, 2022, we have a better view of the scope of Law No. 41-2022, which is effective on July 20, 2022. For micro businesses and PYMES (small and medium enterprises) as defined in Law No. 62-2014, the provisions of Law No. 41-2022 will be effective ninety (90) days after its approval.

It is still unknown if the Puerto Rico Financial Oversight Board will challenge Law No. 41-2022 under the provisions of PROMESA. However, the clock is ticking and employers must be ready to implement changes in employee manuals and other internal operation documents, if needed, by July 22, 2022.
The main goal of Law No. 41-2022 is to revert some of the amendments introduced by the Labor Reform of 2017. It also creates new benefits for certain employees. Eight (8) labor laws have been amended by Law No. 41-2022, which consist of the following:

Law No. 4-2017 (Labor Reform of 2017)

1. Ambiguous provisions in employment contracts shall be liberally construed in favor of the employee. Employers, however, may reserve the right to interpret its own rules and policies as long as such interpretation is reasonable.
2. The statute of limitation for employment contract related claims is increased from one (1) to three (3) years.
3. The Secretary of Labor and Human Resources of Puerto Rico shall submit reports to the legislature every three (3) months with respect to Law No. 41-2022.

Law No. 80-1976 (Wrongful Discharge)

1. The employer has the burden of proof in wrongful discharge claims.
2. The indemnity cap of nine (9) months is repealed.
3. Employees with more than fifteen (15) years of service are entitled to claim an indemnity equal to six (6) months plus three (3) weeks of salary for every complete year of employment.
4. Employees with less than fifteen (15) years of service are entitled to claim an indemnity equal to three (3) months plus two (2) weeks of salary for every complete year of employment.
5. Courts can order a judicial deposit of the amount equal to the indemnity under the law plus fifteen percent (15%) in attorney’s fees.
6. The probationary period will be automatic for the first three (3) months for both exempt and non-exempt employees. Such period can be extended to a maximum of six (6) if the employer notifies in writing to the Puerto Rico Department of Labor the reasons for the extension.
7. The probationary period provision of Law No. 41-2022 is prospective. It does not affect employees hired under the probationary period provisions of Law No. 4-2017.
8. All voluntary payments for terminations are credited towards the Law No. 80-1976 indemnity. Such payments are tax exempt up to the indemnity amount.
9. Amounts paid to terminated employees under profit sharing programs or resulting from liquidation or closure, for reasons attributed to the employer (closing, partial closing, reductions-in-force, reorganizations), will not prevent employees from claiming the indemnity provided under Law No. 80-1976.
10. The statute of limitations is increased to three (3) years.

Law No. 100-1959 (Discrimination in Employment)

1. The rebuttable presumption of discrimination is reinstated, if the alleged acts are committed without just cause.
2. The caps for damages in cases of discrimination and retaliation established under Law No. 4-2017 remain in place.

Law No. 180-1998 (Vacation and Sick Leave)

1. All full time non-exempt employees will be entitled to accrue one and one quarter (1.25) vacation days and one (1) sick leave day for every month in which the employee works one hundred and fifteen (115) hours.
2. For Puerto Rico employers with twelve (12) employees or less, such employees will accrue one half (0.5) vacation days and one (1) sick leave day if they work at least one hundred and fifteen (115) hours per month.
3. For Puerto Rico employers with twelve (12) employees or less, such employees will accrue a quarter (0.25) vacation days and one half (0.5) sick leave days if they work no less than twenty (20) hours per week but less than one hundred and fifteen (115) hours per month.
4. Part-time employees will accrue one half (0.5) vacation days and one half (0.5) sick leave days if they work no less than twenty (20) hours per week but less than one hundred and fifteen (115) hours per month.
5. Upon written request of the employee, the employer may pay the full amount or part of the accrued and unused vacation balance.
6. The statute of limitation for actions arising under Law No. 180-1998 is increased to three (3) years.
7. This statute of limitations also applies to claims under mandatory decrees, Law No. 289-1946 (Rest Day), Law No. 17-1931 (Payment of Salaries), Law No. 148-1969 (Christmas Bonus), and Law No. 379-1948 (Days and Hours of Work).


Law No. 379-1948 (Working Hours and Days)

1. Daily overtime will be the hours worked in excess of eight (8) in any calendar day.
2. Employees can request a change of schedules, number of hours worked, or place of work. Employers must respond in writing. Granting such request is subject to the conditions agreed between employer and employee.
3. Denials in changes of schedules, number of hours worked, or place of work must be specific. If there are no alternatives available for the changes requested, the response shall state so.
4. Meal periods shall begin after the completion of the third consecutive hour of work and before the sixth consecutive hour of work. By written agreement between the employer and the employee, the meal period could be taken between the second and the third hour of work.
5. Waivers of meal periods in cases in which the employee does not work more than six (6) hours a day are repealed.
6. Second meal periods can be waived by written agreement between the employer and the employee, if the workday does not exceed twelve (12) hours, and the first meal period was taken.
7. Written agreements to reduce the meal period to thirty (30) minutes are valid as long as the parties agree. Otherwise, they can be revoked at any time.
8. For union employees, the meal period reduction is only valid if included in the collective bargaining agreement, or by written agreement with the union.

Law No. 289-1946 (Rest Day)

1. Students working on a seventh consecutive day of work must be compensated at double the rate for hour.
2. A student is defined as a person enrolled in a higher education system, university, or graduate program.
3. A student employed by a microbusiness or PYMES (small or medium enterprise) as defined in Law No. 62-2014, will be compensated at time and a half.
4. All other employees are paid at time and a half.

Law No. 148-1969 (Christmas Bonus)

1. The minimum hours to qualify for a bonus is seven hundred (700) hours during a period of twelve (12) months comprised between October 1 and September 30 of the following year (“the bonus year”).
2. The bonus is equivalent to six percent (6%) of the maximum salary of $10,000 earned by the employee, or $600.
3. Employers with twelve (12) employees or less during at least twenty-six (26) weeks during the bonus year will pay a bonus equivalent to three percent (3%) of the maximum salary of $10,000, or $300.
4. For employees hired on or after January 26, 2017, the effective date of the Labor Reform of 2017, who work no less than seven hundred (700) hours during the bonus year, the bonus will be equal to three percent (3%) of the salaries up to a maximum of $600.
5. For employees hired on or after January 26, 2017, who work no less than seven hundred (700) hours for an employer with twenty (20) employees or less during more than twenty-six (26) weeks in the bonus year, the bonus will be equal to three percent (3%) of the salaries up to a maximum of $300.
6. Employers considered to be a microbusiness or PYMES (small or medium enterprise) as defined in Law No. 62-2014, will pay a bonus to its employees who work nine hundred (900) hours or more during the bonus year, equal to three percent (3%) of the salaries up to a maximum of $600.
7. Employers considered to be a microbusiness or PYMES (small or medium enterprise) as defined in Law No. 62-2014, with twenty (20) employees or less during more than twenty-six (26) weeks in the bonus year, will pay a bonus to its employees who work nine hundred (900) equal to three percent (3%) of the salaries up to a maximum of $300.
8. The payment of fifty percent (50%) of the bonus during the first year of employment is repealed.

Law No. 28-2018 (Catastrophic Illnesses)

1. Bleeding conditions similar to hemophilia are added.
2. The employee must have worked during the previous twelve (12) months and at least one hundred and thirty (130) hours per month to claim the benefits of the special leave.

The labor and employment law team of AMG will keep all our clients and friends updated and well informed of all the latest developments related to Law No. 41-2022.

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Dobbs v. Jackson Women’s Health Organization: The Supreme Court of the United States overturns Roe v. Wade. What is its impact in Puerto Rico?

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.

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AMG’s Intellectual Property Team Prevails before the Puerto Rico Supreme Court

In its first decision on trademark issues in over 15 years, the Puerto Rico Supreme Court unanimously validated the arguments presented by Luis A. Oliver-Fraticelli and Alexandra Casellas, part of AMG’s intellectual property litigation team. In the last court opinion written by retiring justice Anabelle Rodriguez, the Court held that the term “pet-friendly” is a generic term and thus incapable of being appropriated as a trademark or afforded legal protection as such, regardless of any alleged secondary meaning. The Court adopted AMG’s argument that “pet friendly” was generic because it was used to identify places where pets are allowed and was not used to associate such places with the plaintiffs, as the source of any services. AMG’s intellectual property practice group frequently counsels clients with respect to trademark registration issues and represents clients in related litigation to enforce or defend against purported trademark rights.