The stage is set for Puerto Rico to become the first U.S. jurisdiction to statutorily address “workplace bullying” or “workplace harassment” (sometimes known as “mobbing”), with potentially costly consequences for employers. It is now up to the Governor of Puerto Rico to decide whether to approve or veto the proposed legislation.
On June 3, 2014, the Puerto Rico Senate and House of Representatives approved a final version of Senate Bill 501, “Law to Prohibit and Prevent Workplace Harassment in Puerto Rico.” The stated purpose of SB 501 is to prohibit and prevent conduct in the workplace, unrelated to a protected category of the employee or retaliation under existing anti-discrimination laws, that nevertheless creates a “hostile, intimidating, humiliating, and offensive atmosphere.” Key provisions of the bill are discussed below.
SB 501 defines “workplace harassment” as:
ill-intended, unwelcome, repetitive conduct, whether it be verbal, written or physical, on behalf of the employer, its supervisors or employees, distinct from the legitimate business interests of the company, that creates a hostile, intimidating, humiliating, and offensive atmosphere, impedes the healthy tenure of the employee in the workplace, that can bring scorn, belittle or professionally destroy the employee, and that threatens his/her constitutionally protected rights, including his/her dignity.
The proposal also provides a list of conduct considered “workplace harassment.” This conduct includes:
- slanderous and harmful expressions about a person, using foul language;
- hostile and humiliating comments of professional incompetence in the presence of co-workers;
- unjustified threats of termination stated in the presence of co-workers;
- frivolous disciplinary actions;
- humiliating rejection of work proposals or opinions;
- public comments or jokes directed to the employee about physical appearance or the manner of dress;
- public references to private, personal or family matters related to the affected employee;
- assigning work functions clearly unrelated to employment obligations; and
- a refusal to provide information or materials pertinent and indispensable to fulfill the employment obligations.
The bill also lists conduct that shall not be considered “workplace harassment.” These include:
- executing disciplinary authority;
- conduct geared towards protecting confidentiality;
- creation and promotion of regulations or memorandums to direct the operation, maximize efficiency and employment evaluations related to the general objectives of the employer;
- requests to comply with additional functions when it is necessary for the continuity of services or to resolve difficult situations in the employer’s operation or services; and
- an employer’s affirmative actions to comply with the obligations, duties and prohibitions required by or imposed by law, among others.
Investigation and Prevention Mechanism
SB 501 creates an obligation for employers to adopt and implement internal policies to prevent, dissuade, and avoid workplace harassment, as well as to investigate allegations and impose sanctions in appropriate cases. It also imposes a posting requirement of the contents of the law.
SB 501 would further impose responsibility upon employers for supervisor conduct that constitutes workplace harassment, unless the employer can establish that it took immediate and appropriate action to remedy the situation the moment it knew of the harassment. The bill also imposes responsibility upon the employer for acts of workplace harassment on its employees by non-employees, if the employer knew of the conduct and did not take immediate and appropriate action to correct the situation.
SB 501 creates a cause of action for retaliation under Puerto Rico’s anti-retaliation in employment statute (Act 115 of December 20, 1991) for reporting or complaining of acts of workplace harassment and being subjected to an adverse employment action as a result of said complaints.
Unlike most other employment legislation in Puerto Rico, the bill establishes an exhaustion requirement. Employees must first channel complaints through internal complaint mechanisms established by the employer. If those are unsuccessful, then the employee must turn to the Bureau of Alternate Dispute Resolution of the Judicial Branch. If mediation is unsuccessful or not recommended, then the employee may file the corresponding judicial action.
Under SB 501, private employers who are found liable will be held responsible for compensatory damages suffered by the employee. Moreover, any damages awarded will be doubled automatically.
Reinstatement, back pay, and injunctive relief are the only available remedies in actions against the government.