The New Amendments to the Puerto Rico Sexual Harassment in the Workplace Act Extend Protections and Create an Obligation for Employers to Implement Specific Protocols
On September 28, 2022, Puerto Rico Governor, Pedro Pierluisi, signed into law Act No. 82 of 2022, which amends Act No. 17 of 1988, also known as the “Act to Prohibit Sexual Harassment in the Workplace”. This amendment extends protections to paid and unpaid interns and creates an obligation for employers to implement specific procedures to handle internal complaints.
Specifically, Act No. 82 now includes, as part of the definition of “employee”, any person who participates in internships for educational or training purposes, regardless of whether they receive any compensation. The Act also requires employers to establish and implement a protocol for handling situations of sexual harassment in the workplace. The Women’s Advocate Office (WAO) and the Puerto Rico Department of Labor (DOL) are required to provide the necessary technical advice for establishing and implementing these protocols and are the agencies with jurisdiction to ensure compliance with regulations under the statute, as amended. Employers may choose either to implement the model protocols issued by the DOL or implement their own protocols and complaint forms which must meet or exceed the minimum standard established under the guidelines issued by government agencies. These guidelines and model protocols have not been published yet. Once they are published, we will inform our readers of any further developments on this front.
The Act does establish a list of the minimum requirements that the protocols must meet. Specifically, the protocols must include:
- A statement that sexual harassment in the workplace is illegal;
- The legal basis to establish the protocol;
- A statement of the purpose of the protocol;
- Proper definitions;
- Designation of personnel in charge of sexual harassment matters and their responsibilities;
- If the employer has more than five employees, a description of the process for filing internal sexual harassment complaints and the names and contact information of the person(s) to whom complaints are to be submitted;
- Who can file a complaint and how it is to be addressed;
- Steps to file verbal, written, or anonymous complaints, as well as the ability to investigate rumors based on “real suspicion”;
- Measures to maintain confidentiality;
- An express statement asserting that retaliation against persons who complain of sexual harassment or who testify or assist in any investigation or proceeding related to sexual harassment is unlawful;
- A list of examples of prohibited conduct that would constitute sexual harassment;
- A process for the designation of the investigative entity that will adjudicate the complaint;
- Provisional protection measures for complainants or victims;
- Other legal remedies and forums for victims, both judicial and administrative (i.e., WOA, DOL, Equal Employment Opportunity Commission), and instructions on how to contact those agencies;
- Information about federal and state legal provisions relating to sexual harassment, remedies available to victims, and an express statement that other local laws may apply; and
- A complaint form for employees to report incidents of sexual harassment, which shall provide, among other things, a space for the complainant to indicate whether there have been prior complaints of sexual harassment.
Act No. 82 further provides for the creation of a website (captioned: hostigamientosexual.pr.gov) where people can find information about the laws related to sexual harassment, as well as file complaints about sexual harassment online. Finally, the Act provides for a specific procedure that must be followed in the case of public agencies. The Office of Administration and Transformation of Human Resources is the agency in charge of establishing the regulation for complaints of public employees.
The Act took effect upon its approval. Therefore, while we wait for further guidance to be issued, employers are advised to update their policies and procedure to ensure compliance with these new requirements. Once additional guidance is issued by the appropriate government agencies, we will provide our readers with the details.
Contact our Labor and Employment Practice Team.