PUERTO RICO Law and Practice Contributed by: Jorge C Pizarro-García, José R González-Nogueras, Karla Rivera-Rubio and Lloyd Isgut-Rivera, Pizarro & González
2.3 Confidentiality Agreements and NDAs Employers may ask parties to sign confidentiality agreements or NDAs covering an internal investiga - tion, although such agreements are not widely used in practice. NDAs may not violate statutes such as the federal Speak Out Act in sexual harassment contexts, nor may they restrict employees from co-operating with government agencies and reporting unlawful conduct by their employer. Any confidentiality request must respect limits under the National Labor Rela - tions Act, which prohibits rules that have a chilling effect on employees’ right to discuss matters such as wages, hours and working conditions, unless the employer can show a specific, legitimate business reason, such as protecting witnesses, preserving evi - dence, preventing fabrication of testimony or prevent - ing cover-ups. Even without a signed NDA, most internal regulations impose a duty of confidentiality, and breaches by any employee may lead to discipline or civil liability if they harm another employee’s integrity or privacy. Employ - ers also may seek injunctive or contractual remedies when NDAs are violated. 2.4 Preliminary Investigation and Scope- Setting Employers routinely conduct preliminary assessments to determine whether a full investigation is warranted. This step is useful for allocating resources, identify - ing immediate risks and determining whether interim protective measures are necessary. However, when the reported conduct involves workplace harassment, the employer must proceed with a full investigation regardless of the outcome of the preliminary assess - ment. In contrast, when the matter involves perfor - mance concerns or interpersonal issues that do not fall under a statutory duty to investigate, the employer may follow its internal policies to decide whether a full investigation is appropriate.
is not legally mandatory, employers typically elect to investigate whenever doing so is necessary to docu - ment decision-making, mitigate liability and maintain a professional workplace. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent The guidance provided by the Department of Labor and Human Resources regarding Act 90-2020 requires employers to notify the reporter of the investigation that will be carried out. There is no statutory right for the respondent to be formally notified when an internal investigation is opened. However, employers typically inform both parties as a matter of best practice and in order to comply with transparency expectations. Reporters are generally told that their complaint will be investigated, while respondents are informed of the nature of the allegations so they may meaning - fully respond. 2.2 Communication to Authorities Employers generally do not have a legal obligation to notify authorities when an internal HR investigation is opened. However, specific situations do trigger man - datory reporting. For example, workplace incidents involving severe injuries or fatalities must be reported to the Puerto Rico Occupational Safety and Health Administration (PR OSHA) within the required statu - tory timelines. In addition, when the alleged conduct appears to constitute a crime, employers may choose to file a police report or, in cases of workplace domes - tic violence or stalking, may petition for a protective order after notifying the affected employee under Act No 54 of August 15, 1989, known as the Domestic Violence Prevention and Intervention Act, 8 L.P.R.A. § 601 et seq. (“Act 54-1989”), and Act No 284 of August 21, 1999, known as the Stalking Prevention Act, 33 L.P.R.A. § 4013 (“Act 284-1999”). Outside these limited circumstances, employers may need to report matters only when required by sector- specific regulatory obligations. In those cases, they typically provide only the essential information needed to comply with the regulatory mandate.
3. Interviews and Fact-Finding 3.1 Interviewees
Internal investigations typically begin with interviews of the reporter and the respondent, followed by any witnesses with personal or relevant knowledge of the
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