PUERTO RICO Law and Practice Contributed by: Jorge C Pizarro-García, José R González-Nogueras, Karla Rivera-Rubio and Lloyd Isgut-Rivera, Pizarro & González
Pizarro & González 650 Plaza, Suite 502 650 Muñoz Rivera Ave San Juan, PR 00918-4149 Puerto Rico
Tel: 787-767-7777 Fax: 787-763-2286 Email: info@pg.legal Web: www.pg.legal
1. Opening an HR Internal Investigation 1.1 Circumstances In Puerto Rico, HR internal investigations generally begin when an employee lodges a complaint with the employer or when an employer receives information or is put on notice of a situation suggesting a poten - tial violation of law or internal policy, or conduct that could affect the workplace. This includes allegations of sexual harassment, workplace bullying, discrimina - tion, retaliation, safety risks, threats or violence, mis - use of company property, insubordination, or patterns of deficient performance or rule violations. The duty to conduct an internal investigation is also triggered when a supervisor’s or employee’s conduct, whether on or off duty, may reasonably affect workplace oper - ations or the employer’s reputation. Since Puerto Rico requires just cause when terminating an employee, employers are advised to conduct thorough, timely and impartial investigation when they become aware of a situation that could result in an adverse employ - ment action, even where termination is not contem - plated. In the private sector, Act No 80 of May 30, 1976, as amended, 29 L.P.R.A. §185a et seq. (“Act 80-1976”), makes it unlawful for an employer to termi - nate an employee for arbitrary or capricious reasons. An employer that proceeds in this manner is required to pay the terminated employee the statutory sever - ance contemplated in Act 80-1976. 1.2 Bases In Puerto Rico, several statutes impose upon an employer the obligation, or strongly incentivise an employer, to carry out an investigation in order to mitigate its liability or properly defend against future claims.
First, Act No 17 of April 22, 1988, known as the Act to Prohibit Sexual Harassment in the Workplace, 29 L.P.R.A. § 155 et seq. (“Act 17-1988”), Act No 90 of August 6, 2020, known as the Workplace Harassment Act, 29 L.P.R.A. § 3111 et seq. (“Act 90-2020”), and Act No 217 of September 29, 2006, known as the Protocol for Managing Domestic Violence Situations Act, 8 L.P.R.A. § 601 note (“Act 217-2006”), require employers to implement written protocols and take prompt corrective measures when allegations arise. Act 90-2020 expressly mandates that all allegations of workplace harassment be investigated. As to Act 17-1988, while it does not explicitly require an investi - gation, case law has shown that a timely investigation is the only effective way for an employer to comply with its statutory duty to prevent and correct sexual harassment and to reduce potential liability. Second, in the broader disciplinary context, Act 80-1976 requires employers to pay statutory sever - ance when a termination is arbitrary or capricious or lacks just cause. In light of this statutory framework, employers are advised to conduct internal investiga - tions before imposing disciplinary measures. A prop - erly conducted investigation and its findings allow the employer to demonstrate that the action taken is supported by information obtained through the inves - tigative process and that, prior to imposing discipline, the employer confirmed that the employee’s conduct adversely affected the employer’s operations. Third, employers may conduct investigations under their internal policies, which commonly address per - formance issues, rule violations, insubordination and other forms of misconduct. These internal rules are lawful bases for investigations so long as they are rea -
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