PUERTO RICO Law and Practice Contributed by: Jorge C Pizarro-García, José R González-Nogueras, Karla Rivera-Rubio and Lloyd Isgut-Rivera, Pizarro & González
sonable and provided to employees in advance. Once an employer creates the internal policies that establish how and when internal investigations will take place, an employer’s failure to comply with its internal poli - cies before imposing discipline may expose it to a finding of arbitrary action or lack of just cause. Finally, employers may investigate when necessary to comply with general duties of care such as main - taining a safe workplace or responding to complaints that may implicate tort liability, or to co-operate with external regulatory or law-enforcement inquiries. 1.3 Communication Channels Puerto Rico law does not require a single, uniform reporting channel for all workplace concerns. How - ever, for sexual harassment (Act 17-1988), workplace bullying (Act 90-2020), and domestic-violence situa - tions in the workplace (Act 217-2006), employers must adopt written protocols consistent with model guide - lines issued by the Department of Labor and Human Resources and the Office of the Women’s Advocate. These protocols must include the reporting options specified in the agency models. For example, the pro - tocol for Act 17-1988 establishes that employers must allow oral, written or anonymous complaints and must investigate rumours that create “real suspicion” even when no complaint was formally lodged. Additionally, the guidance provided by the Depart - ment of Labor and Human Resources regarding Act 90-2020 requires employers to establish an adequate procedure to notify workplace harassment complaints that is both effective and fair in the handling of cases. To that end, the guidance requires employers to noti - fy its workforce of the individual (or individuals) who will receive workplace harassment complaints. The guidance does not require that a particular position or person be tasked with handling workplace harass - ment complaints; it only requires that the individual be identified so the employees know where to file. 1.4 Responsibility No statute specifies who must conduct workplace investigations. In the context of workplace harass - ment complaints, the only requirement is that the employer identify the individual tasked with receiving and handling workplace harassment complaints. An
employer’s most important responsibility when carry - ing out an HR internal investigation is to ensure the investigation is timely, thorough and impartial. Training and objectivity is critical in this stage. Usually, inves - tigations are carried out by the HR Department, but when a complaint involves complex or sensitive legal issues or involve senior management, external inves - tigators or counsel may be brought in. Use of external counsel is common when the allegations may lead to litigation. 1.5 Obligation to Carry Out an HR Internal Investigation An employer must conduct an internal investigation when required by statute, regulation, internal policy or an adopted protocol. Act 90-2020 expressly man - dates the investigation of all workplace harassment allegations. Likewise, under Act 17-1988, conduct - ing an investigation is the only effective way for an employer to meet its statutory duty to prevent and correct sexual harassment, and the required protocol must reflect that obligation. Employers also have a duty to investigate allegations involving safety risks, violence or threats in order to comply with their gener - al obligation to maintain a safe and secure workplace. If an employer’s handbook requires an investigation, the employer must comply with its internal policies. 1.6 Prohibition on Carrying Out an HR Internal Investigation There is no absolute prohibition on conducting inves - tigations, but they may be temporarily inappropriate when the conduct in question is already under active criminal investigation and employer action could inter - fere with law enforcement proceedings. 1.7 Other Cases An internal investigation is typically warranted when the information received indicates a potential policy violation. The employer also assesses whether leaving the issue unaddressed could allow it to escalate into harassment, retaliation or hostile-work-environment claims, or impair the employer’s ability to demonstrate good-faith compliance in future litigation. Investigations are also initiated when consistency in discipline is required to avoid arbitrary decision- making under Act 80-1976. In practice, even when it
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