An Employee’s Felony Indictment Constitutes Just Cause for Termination

Precedential Decision by Judiciary or Regulatory Agency

On April 25, 2019, the Puerto Rico Supreme Court held that a felony indictment constitutes conduct severe enough for a just-cause termination under Puerto Rico’s Unjust Dismissal statute, Act No 80 of May 30, 1976 (Act 80). Here, the employee was suspended after criminal charges were filed against him and, subsequently, was terminated after being found guilty of six felony charges. The Court explained that an employer can adopt rules and regulations for the good and normal functioning of the company and may evaluate its employees based on the prevailing moral and public order values. Additionally, the Court noted that the presumption of innocence that applies in the criminal context does not extend to the labor and employment context. This case provides greater certainty to employers when deciding the course of action to take when an employee receives a felony indictment, although, a case-by-case analysis is still highly recommended.

Guidelines on the Interpretation of Puerto Rico’s Employment Legislation (Part 1)

New Regulation or Official Guidance

On May 8, 2019, the Puerto Rico Department of Labor published the first edition of its Guidelines on the Interpretation of Puerto Rico’s Employment Legislation. The Guidelines provide legal certainty on the Department’s interpretation of the laws and regulations that fall within its jurisdiction. The Guidelines also discuss the impact of particular pieces of legislation on employee rights and how to examine the wording of specific statutory provisions in controversy. Although the Guidelines do not create any substantive or procedural rights, they provide a wide range of the Department’s official interpretation of employment-related statutes and will probably receive significant attention in the coming years.

Guidelines on the Interpretation of Puerto Rico’s Employment Legislation (Part 2)

New Regulation or Official Guidance

Further, the Guidelines discuss employer’s obligation to provide reasonable accommodation for an employee’s religious practices (upon the employee’s written request) and the applicable exceptions. With regards to the interpretation of the Puerto Rico Labor Transformation and Flexibility Act, Act No. 4 of January 26, 2017 (LFTA), the Guidelines discuss the different types of overtime; changes in employee’s schedules; and the repeal of the Closing Law (which eliminated previous restrictions on hours and days of operations for covered commercial establishments). Further, the Guidelines discuss the Christmas Bonus Act, clarifying the eligibility and bonus amount requirements and how employers may qualify for an exemption.

Guidelines on the Interpretation of Puerto Rico’s Employment Legislation (Part 3)

New Regulation or Official Guidance

Further, the Guidelines cover the Caregiver’s Leave Act, an amendment to the sick leave provision, clarifying the provision that expressly prohibits employers from counting the use of sick leave as an efficiency criterion or using it to justify disciplinary actions. Concerning women’s rights to a paid leave to nurse their infants or to express breastmilk, the Guidelines interpret the eligibility criteria, employer obligations to extend the leave and provide lactation spaces, and remedies for noncompliance. The Guidelines also discuss the prohibition against pay discrimination based on gender, for employees performing comparable job functions or duties (pursuant to PR Equal Pay Act. Notably, the Guidelines outline specific instances in which the salary difference may be justified; affirmative defenses available to employers; and specific pecuniary remedies for violations of the Act.

Implementing Legislation that Prohibits Sexual Orientation and Gender Identity

New Regulation or Official Guidance

The Puerto Rico Department of Labor (PRDOL) revised and updated its Protocol on Sexual Orientation and Gender Identity Discrimination, providing guidance on how to interpret and implement legislation that prohibits sexual orientation and gender identity discrimination. The revised Protocol includes guidelines on new requirements for conducting internal investigations after employees allege sexual orientation and gender identity discrimination; documents that must be generated and kept during investigations; and addressing gender identification requests, including personnel files and record-keeping practices. The Protocol further expands on what constitutes illegal discrimination practices, identifying the conduct the PRDOL considers harassment based on sexual orientation and gender identity. Employers should revise their policies accordingly, as well as train supervisors and personnel handling these types of complaints.