New Laws on Workplace Harassment (“Mobbing”)

On August 7, 2020, the Governor of Puerto Rico signed into law House Bill 306 to prohibit workplace harassment (commonly referred to as “mobbing”). The “Law to Prohibit and Prevent Workplace Harassment in Puerto Rico” (our translation), applies to all employees in the private and public sector, including temporary and fixed-term employees. It 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.

The new law provides 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, and that infringes on constitutionally protected rights, such as the protection against attacks to the employee’s reputation or private life, risks against the employee’s health and integrity, among others. Some of the examples 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 provides as a remedy double the amount of any damages caused to the employee.

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 defense 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 authorizes 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 will be considered protected activity under Puerto Rico’s Anti-Retaliation statute, Law No. 115-1991.

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 as a prerequisite to filing a lawsuit in court. The Puerto Rico Department of Labor and Human Resources will issue regulations and guidance within 180 days of the enactment of the law. Consequently, employers must adopt policies and protocols prohibiting workplace harassment, including a procedure for employees to raise complaints. This law goes into effect immediately.

We will keep you informed of further developments related to the Law to Prohibit and Prevent Workplace Harassment in Puerto Rico.

For further information or, if you should have any questions or comments, you can consult the Labor and Employment law team at AMG.