Labor & Employment

by cstlaw

Governor Vazquez Signs H.b. 2428 Into Law In Response To Covid-19 Pandemic

On April 9, 2020, Governor Wanda Vazquez Garced signed the H.B. 2428 into law as part of the Government’s response to the coronavirus (“COVID-19”) emergency. Law No. 37-2020 amends the Puerto Rico Minimum Salary, Vacations and Sick Leave Act (Law No. 180-1998) to provide a special emergency paid leave to eligible employees whenever a state of emergency is declared by the Governor or the Secretary of the Puerto Rico Health Department and only while the state of emergency is in effect.

Pursuant to this new statute, if a covered employee suffers or is suspected to suffer the illness or condition that causes the declaration of a state of emergency, and upon exhausting their accrued sick leave and any other accrued paid leave, they will be entitled to a special emergency paid leave of up to five (5) working days if they remain ill or afflicted with the covered condition and the state of emergency remains in effect. As is the case with sick leave, employers are prohibited from taking the special emergency leave into consideration for disciplinary purposes. The amendment to Law No. 180-1998 became effective immediately upon its enactment. As such and considering that OE-2020-033 is in effect at least until Sunday, May 3, 2020, we encourage you to be vigilant and ensure that you are compliant with this new paid leave should you have an eligible employee. Please note that inasmuch as this is an amendment to Law No. 180-1998, exempt employees (administrators, executives, professionals) are excluded from coverage and accordingly not entitled to this special emergency leave. You may access Law No. 37-2020 here.

If you have any questions or concerns regarding the application of this new paid leave to your workforce or operations, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

Dol Issues Additional Guidance Making It Clear That Covered Employers Subject To Oe-2020-023 And Forced To Close Their Business, Don’t Have To Provide Paid Sick Leave To Employees

Yesterday, March 26th, the Department of Labor (“DOL”) issued additional guidance by way Questions & Answers and stating the DOL’s position with regards to an employer’s obligation to comply with the paid leave requirements set forth in the Families First Coronavirus Response Act (hereinafter, the “FFCRA”), specifically paid medical leave under the Emergency Family and Medical Leave Act and paid sick leave under the Emergency Paid Sick Leave Act. The DOL has assumed the position that the FFCRA will come into effect April 1st.

Since the enactment of the FFCRA on March 18th, there was much discussion amongst the legal community in Puerto Rico concerning a covered employer’s obligation to provide paid sick leave to its employees despite being closed for business as a result of OE-2020-023. As reported in one of our previous Newsletters, an employee of a covered employer not able to work (or telework) due to said employee being subject to a Federal, State or local quarantine or isolation order related to COVID-19, shall be eligible to paid sick leave pursuant to the Emergency Paid Sick Leave Act. In light of OE-2020-023 and the fact that many employers in Puerto Rico with less than 500 employees had to close operations and will continue to remain closed for business in light of the recent announcement regarding the extension of OE-2020-023 until April 12th, some in the legal community interpreted the language of the Emergency Paid Sick Leave Act broadly and concluded that covered employers who would be forced to close as a result of OE-2020-023 would nonetheless have to pay all of their employees paid sick leave pursuant to the FFCRA. Yet, others relied on the language of the statute and a collective reading of the Emergency Paid Sick Leave Act’s provisions related to COVID-19 and opined that the “quarantine or isolation” order referenced in reason #1 of the Emergency Paid Sick Leave Act was limited to individual employees and not extensive to an order mandating business closures, such as OE-2020-023. Based on this latter interpretation, an employer who had to close its business would not have an obligation to provide paid sick leave to employees pursuant to the FFCRA.

Thanks to the additional guidance published yesterday by the DOL, it is now clear that covered employers in Puerto Rico who are closed for business when the FFCRA comes into effect on April 1st will not have an obligation to provide paid sick leave pursuant to the FFCRA to their employees who are unable to work or telework due to the business closure. In other words, OE-2020-023 is not considered a quarantine or isolation order for purposes of Section 5102(a)(1) of the FFCRA. You can view the DOL’s 37 Questions & Answers here.

As always, if you have any questions or would like additional information, please feel free to contact any of the attorneys listed below at your convenience. Due to the current lockdown in Puerto Rico, recently extended until April 12th, we are working remotely so you may contact us via email or directly on our mobile phones.

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

Department Of Labor’s Guidelines On The Families First Coronavirus Response Act (“FFCRA”)

As explained in our prior Newsletter, on March 18^th President Donald J. Trump signed the Families First Coronavirus Response Act (hereinafter, the “FFCRA”) that applies to private employers with less than 500 employees. On March 25^th, the Department of Labor published the poster or notice that must be displayed by employers at their premises, as required by the FFCRA. The poster can be viewed here.

Please note that the DOL’s poster “appears” to have an error because: (a) it omitted the payment requirement with respect to paid sick leave for reason 5 (school closings); and (b) capped the additional 10 weeks of pay under the expanded FMLA at $12,000 instead of $10,000. However, an employee that can’t work or telework for reason 5 (school closings) due to COVID-19 related reasons, can get:

• paid sick leave of pay up to $200 daily ($2,000 total), and
• an additional ten weeks of expanded FMLA at pay up to $200 daily ($10,000 total)

It is possible that the DOL reached the $12,000 cap by grouping those two scenarios in the poster to save space. Nonetheless, we will continue to monitor this issue and notify you if the DOL issues a revised poster. The DOL also issued FAQs concerning the poster, which can be downloaded from here.

On another note, yesterday the DOL’s Wage and Hour Division (WHD) announced its first round of published guidance to provide information to employees and employers about how each will be able to take advantage of the protections and relief offered by the FFCRA. The guidance – provided in a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers document – addresses critical questions, such as how an employer must count the number of their employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate the wages employees are entitled to under the FFCRA, among other things. You may access those documents here:

• Employee Paid Leave Rights
• Employer Paid Leave Requirements
• Questions & Answers

These guidance and posters are just the first round of information and compliance assistance issued by the DOL, since we expect further guidance will be issued promptly, including regulations. We will of course keep you posted.

Lastly, note that while the FFCRA states that it will go into effect no later than 15 days after its enactment, the DOL has taken the position that it will become effective April 1st.

If you have any questions or comments regarding the FFCRA and its application or impact to your operations, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

President Trump Signs The Families First Coronavirus Response Act (“ffcra”) Into Law

President Trump signed Bill H.R. 6201 into law on March 18th, 2020 as part of the federal government’s response to the coronavirus (“COVID-19”) emergency. The Families First Coronavirus Response Act (hereinafter, the “FFCRA”) will take effect no later than fifteen (15) days after its enactment and will remain in effect through December 31, 2020.

As it pertains to the employment landscape, the FFCRA provides for paid leave under the Family and Medical Leave Act (“FMLA”) and paid sick leave while providing tax credit benefits to employers. It is important to note that both the paid FMLA and paid sick leave apply only to private employers with less than 500 employees and certain public employers. Below are the relevant provisions of the FFCRA:

A. FFCRA Amends FMLA in response to COVID-19

The Emergency Family and Medical Leave Expansion Act amends the Family and Medical Leave Act (“FMLA”) for the purpose of creating the Public Health Emergency Leave (the “Emergency Leave”). The Emergency Leave allows an eligible employee who is unable to work (or telework) to take leave due to a need to care for the employee’s son or daughter (under 18 years of age) if the school (elementary or secondary) or place of care of the employee’s child has been closed, or the child care provider of such son or daughter is unavailable, due to a “public health emergency.” Public health emergency is defined as an emergency with respect to COVID19 declared by a federal, state or local authority.

The following rules apply under the Emergency Leave:

• The first 10 days of leave due to a school or day care closure may consist of unpaid leave. An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the unpaid leave.
• Subsequent absences must be paid at 2/3 the employee’s regular rate of pay, provided that in no event shall such paid leave exceed $200 per day and $10,000 in the aggregate.
• Employers have the obligation of reinstating the employee to the same equivalent position upon their return to work.
• Employers with less than twenty-five (25) employees will be exempt from this requirement if the employee’s position does not exist after returning from leave, provided the following conditions are met: the employee takes leave; the position
held by the employee when the leave commenced does not exist due to economic conditions or other changes in the employer’s operating conditions that affect employment and are caused by a public health emergency during the period of leave; the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment;
and that, if reasonable efforts to restore fail, the employer make reasonable efforts to contact the employee if an equivalent position becomes available during a 1-year period beginning on the earlier of (i) the date on which the qualifying need related to a public health emergency concludes or (ii) the date that is 12 weeks after the date on which the employee’s leave commences.

B. Paid Sick Leave in response to COVID-19

By way of the Emergency Paid Sick Leave Act, the FFCRA provides that employers with less than 500 employees must immediately make available 80 hours of paid sick leave for full-time employees, or, for part-time employees, the equivalent of the average number of hours the employee works, on average, over a 2-week period, for the following reasons:

• Employee is subject to a Federal, State or local quarantine or isolation order related to COVID-19, or caring for an individual subject to said orders;
• Employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or caring for an individual subject to said advise;
• Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis;
• Employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the child-care provider of such son or daughter is unavailable, due to COVID-19 precautions; or
• Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Employers may not require, as a condition of providing paid sick leave under the FFCRA, that the employee involved search for or find a replacement to cover the hours during which the employee is using paid sick leave. Paid sick time shall not carry over from one year to the next.

The Emergency Paid Sick Leave Act also provides:

• An employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick leave under the Emergency Paid Sick Leave Act.
• Paid sick leave is paid at the employee’s regular rate, but subject to cap of $511 per day and $5,110 in the aggregate if the reasons for leave are: (i) employee subject to federal, state or local quarantine or isolation order; (ii) employee has been advised by healthcare provider to self-quarantine; or (iii) employee is experiencing symptoms of COVID-19 and seeking medical diagnosis. If leave is for the other reasons set forth in the Emergency Paid Sick Leave Act, paid leave is subject to a cap of $200 per day and $2,000 in the aggregate.
• It shall be unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who (1) takes paid sick leave under the Emergency Paid Sick Leave Act; and (2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to the Emergency Paid Sick Leave Act or has testified or is about to testify in any such proceeding.
• Employers that fail to comply with the Emergency Paid Sick Leave Act may be subject to penalties under the Fair Labor Standards Act of 1938.

C. Tax credits for paid sick and paid family and medical leave

Generally, Division G of the FFCRA provides for a refundable payroll tax credit for the employers subject to the FMLA Emergency Leave and required Emergency Paid Sick Leave discussed above. The tax credits will be applied against FICA taxes (Medicare and Social Security).

If you have any questions or comments regarding the Act or if you’d like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

The Governor Of Puerto Rico Signs Working Women’s Bill Of Rights Acts

Earlier this month, on January 3, 2020, the Governor of Puerto Rico signed Act No. 9-2020, known as the “Working Women’s Bill of Rights Act” (“the Act”).

In general terms, the Act proposes to serve as a tool to educate working women about the different labor and employment laws enacted throughout the years in order to eradicate discrimination against women in the workforce.

The Act recognizes that it is a general, non-exhaustive, compilation of rights of private and public sector working women’s rights recognized throughout the years by way of various statutes. Article 3 of the Act includes a list of twenty (20) women’s rights (“Carta de Derechos de la Mujer Trabajadora”), including that: women shall not be discriminated in the workplace and in salary-wise determinations based on gender; shall not be terminated without just cause and shall receive severance payment if terminated without just cause; employer shall guarantee to implement the necessary actions to protect women from discrimination in the workplace; provide paid maternity leave after childbirth and adoption (considering the child’s age); employer shall reserve the employee’s job while on maternity (or adoption) leave; employee shall not be terminated, suspended, discriminated or receive a reduction in salary as consequence of a reduction in productivity due to pregnancy; have a designated place for nursing; be provided time to nurse or pump breast milk; provide a workplace free from harassment; women shall not receive unsolicited sexual advances as a condition to be recruited or retain a job; employer shall not retaliate against a woman that files a complaint, testifies or participates in an investigation related to discriminatory practices in employment; women shall be protected from domestic violence in employment; the workplace shall be kept free from sexual harassment and intimidation; and the employer shall establish an adequate internal procedure to work on sexual harassment complaints.

The Act specifically provides that all public offices, government agencies, public corporations, municipalities and private employers with two or more employees are required to exhibit the Women’s Bill of Rights in a place accessible to all employees and visitors. The Office of the Ombudsman for Women jointly with the Puerto Rico Department of Labor, will design the posters with the information that needs to be posted by employers.

The Act is for informative purposes only. It does not limit rights acquired through special legislation or regulations nor does it create new rights that may be enforceable before administrative agencies or the judicial branch. Violations to the rights included in the Act will allow for a damages claim, subject to the current civil and/or penal legal framework.

If you have any questions or comments regarding the Act or if you’d like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

The Governor Of Puerto Rico Signs Law To Protect Employees’ Credit Information

On October 8, 2019, the Governor of Puerto Rico signed Act No. 150-2019, known as the “Act to Protect Employee’s Credit Information” (“the Act”).

In general terms, the Act states that an employer or potential employer cannot: terminate, deny benefits, affect an employee’s compensation, refuse to hire, promote or discriminate against an employee or job applicant based on the results of his/her credit history or credit report. The Act also prohibits employers from: (1) verifying or investigating an employee’s or job applicant’s credit history or report; and (2) requesting or obtaining an employee’s or job applicant’s credit report from a credit reporting agency, unless the position sought or held within the company is one contemplated in the Act. Among the exceptions from the prohibitions are: managerial positions, job positions regulated by OCIF or a particular federal agency, job positions with access to the company’s or clients’ financial information, job positions with fiduciary duty to the company (making payments, collections of monies, money transfers), job positions with access to the company’s trade secrets, and job positions with access to company’s cash or valuables in excess of $10,000 on a daily basis. Notably, an employer must obtain prior written consent from the employee or job applicant before requesting a copy of his/her credit report or credit history.

The Act authorizes the Secretary of the Department of Labor of the Commonwealth of Puerto Rico (“DOL”) to receive complaints for alleged violations to this Act. It also allows the Secretary of the DOL to investigate and review compliance with this Act. The employer that does not comply with the Act will be subject to an administrative fine between $1,000 and $2,500.

The governor of Puerto Rico signs law to amend Puerto Rico’s Sexual Harassment Act

On September 27, 2019 the Governor of Puerto Rico signed Act No. 146-2019, which amends Act No. 17 of April 22, 1988, as amended (“Act 17”), known as Puerto Rico’s Sexual Harassment Act. Act No. 146 amends Act 17’s Article 11 to increase the minimum monetary fine imposed on any person found guilty of incurring in any practices prohibited by Act 17, from three thousand dollars ($3,000) to ten thousand dollars ($10,000), in those cases in which pecuniary damages are not susceptible of being ascertained.

If you have any questions or comments regarding the Act or if you’d like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

Enactment Of Special Unpaid Leave For Victims Of Domestic Or Gender-Based Violence, Sexual Harrasment, Sexual Assault, Child Abuse And Stalking

On August 1, 2019, several days after having announced his resignation as Governor of Puerto Rico but one day prior to its effectiveness, outgoing Governor Ricardo Rosselló Nevares signed Act No. 83-2019 (“Act 83” or “the Act”), which creates a special leave for employees dealing with domestic or gender-based violence, child abuse, sexual harassment in the workplace, sexual assault, lewd acts or felony stalking. Act 83 went into effect immediately, so employers need to be mindful of its implications and the rights afforded to employees and, to the extent necessary, revise any policies and protocols accordingly.

Overview

In general terms, the Act provides employees in Puerto Rico an annual unpaid leave of up to fifteen (15) days to, among other things: (i) seek orientation and secure a protective order or any other judicial order or remedy; (ii) seek and obtain legal assistance; (iii) seek and obtain safe housing or shelter; (iv) seek medical assistance or visit a hospital or clinic; and (v) seek any other available assistance, orientation or benefits. These fifteen (15) days are in addition to any other leave to which the employees may be entitled to pursuant to law and it is the employee’s discretion to request the leave pursuant to this Act or any other leave, paid or otherwise, applicable to similar situations. Additionally, the special leave may be fractioned, taken intermittently, or by way of a flexible schedule.

Notably, this Special Leave applies not only when the employee is facing these situations, but also by association, or when a family member of the employee is the one facing these situations. Pursuant to the Act, covered family members include: (i) children; (ii) spouses; (iii) partners united by an affective relationship; (iv) parents; and (v) minors, persons of advanced age or with disabilities over whom the employee has custody or guardianship.

The Act sets forth several obligations the employer must comply with: (a) provide the Special Leave to every employee that makes the request; (b) keep all information and documents related to any employee that requests the Special Leave confidential; (c) reinstate the employee to his/her position upon return from the Special Leave (employment reserve); and (d) provide orientation to all of its employees with respect to their duties and rights pursuant to the Act, as part of any protocols and policies implemented in the workplace.

Likewise, the employer cannot use or consider any days taken under the Act for purposes of issuing negative performance evaluations or in connection with adverse employment actions, such as reduction of working hours, shift changes or reclassification of job titles, and termination of employment. Moreover, the employer cannot use or consider any justified absences for purposes of an employee’s efficiency during an evaluation process, whenever said efficiency criteria are considered for salary increases or promotions. This prohibition is consistent with Act No. 60-2018, which amended Article 6 of Act No. 180-1998, to prohibit employers in the private sector from considering employee’s justified sick leave absences as criteria in performance reviews, compensation, promotion and/or disciplinary related decisions. Lastly, employers cannot discriminate against employees that request the Special Leave or interfere with an employee’s rights under the Act.

Reasonable Accommodation

Employees are entitled to request reasonable accommodation or flexible working conditions that will enable him/her to deal with or handle a situation of abuse (“maltrato”). Examples of accommodation may include physically transferring the employee to a different location, modifying the employee’s duties, modifying the employee’s shifts or working times and/or any other change that will allow the employee to seek and obtain the help necessary to deal (either the employee or the employee’s family member) with the domestic or gender-based violence.

Notification Requirements

Generally, the employee must notify of his/her intention to make use of the Special Leave at least two (2) business days prior to the date of absence unless circumstances beyond the employee’s control do not allow for such prior notice. Whenever the employee’s health or safety is at risk, notice shall be provided within two (2) working days from the employee’s first absence under the Act. Notice may be given by the employee, family member, therapist, counselor, religious leader or qualified professional who has assisted the employee or family member as result of the abusive situation or conduct. Said notice may be provided by phone, fax, in person, e-mail, writing or any other reliable method of communication.

Confidentiality

All documents submitted or created in connection with the Special Leave afforded by the Act shall remain strictly confidential and be placed in the employee’s personnel file, under seal. The Act, however, provides several exceptions to the confidentiality requirement. These include an employee’s request and written consent for disclosure; responding to a subpoena or court order; complying with a federal or local law that requires disclosure.

Supporting Documentation

The employer may request from employees that request the Special Leave or reasonable accommodation pursuant to the Act, documents that establish the propriety of the leave entitlement. The employee shall provide the requested documents within a reasonable period of time that shall not exceed two (2) working days from the last absence taken pursuant to the Special Leave. The documents provided must certify the time dedicated by the employee to address each particular situation, detailing days and hours. In cases involving minors, only the minor’s initials will be provided. It is important to note that the employer cannot request evidence of arrest or conviction to justify absences under the Act.

An employee can satisfy the employer’s request for documents providing one of the following: (a) a restraining order, an order providing analogous relief or any document or certification issued by a Government instrumentality or by a competent court of law as a result of an abuse situation involving the employee or employee’s family member; (b) official document issued by a court of law, agency or service provider that assisted employee or family member in relation to an incident of abuse; (c) complaint or police report documenting situation; (d) document containing admission or confession by the perpetrator of the abusive conduct; (e) medical certification related to treatment received as a result of the abusive situation or conduct; (f) certification by service provider (therapist, social worker, health professional, religious leader, shelter director, attorney or qualified professional that assisted or counseled employee or family member in relation to abusive situation or conduct); (g) sworn statement by co-worker witness to the abusive situation or conduct; and (h) any other document that credibly shows the employee was engaged in matters related to an abusive situation against the employee or employee’s family member.

Regulations

The Act provides that the Department of Labor and the Office of Solicitor of Women shall create, within ninety (90) days from the statute’s enactment, bylaws setting forth the investigative and adjudicative process and the guidelines for the imposition and recovery of fines. In the private sector, the Department of Labor shall have the faculty to investigate, receive and file complaints and impose penalties. Employees may also file a civil action to recover damages stemming from an employer’s violation of the Act.

Please consider the implications of this Act when making any determinations that may involve employees or employees’ family members subject to abusive situations or conducts contemplated in the Act and adjust your policies, handbooks and protocols accordingly. Also, bear in mind that, pursuant to the Labor Transformation and Flexibility Act, whenever an employer is put on notice of a situation involving domestic violence, sexual assault or stalking, there is an affirmative obligation to make reasonable adjustments or accommodations in the workplace to protect employees from a potential aggressor and failure to do so shall be presumed to be discriminatory conduct.

If you have any questions or comments regarding the Act or if you’d like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

Department Of Labor And Human Resources Issues Comprehensive Guidelines On Puerto Rico Employment Legislation

Earlier this month (May 8, 2019), the Secretary of the Puerto Rico Department of Labor and Human Resources (“PR-DOL”) issued the first comprehensive “Guidelines for the Interpretation of Puerto Rico’s Employment Legislation” (hereinafter, the “Guidelines”) in an effort to compile in a single publication the PR-DOL’s longstanding interpretations of Puerto Rico’s employment statutes and regulations as well as its new guidance on recent changes to the employment landscape introduced by Act No. 4-2017, known as the Labor Transformation and Flexibility Act or “Labor Reform” and subsequent legislation.¹

Although the Guidelines are not intended to create any substantive or procedural rights, they serve as a uniform source of information regarding the PR-DOL’s interpretation and position with respect to Puerto Rico’s employment legislation. The Guidelines are also useful as they shed light on gray areas that have created some confusion amongst employers and practitioners. We foresee that, similar to the PR-DOL’s for the interpretation of Act No. 80, these recently published Guidelines will be used by courts as a persuasive tool.

If you have any questions or comments regarding the Act or if you’d like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.

by cstlaw

Department Of Labor And Human Resources Clarifies Application Of New Minimum Hours Threshold To Accrued Vacation And Sick Leave Per The Labor Transformation And Flexibility Act of 2017, Act No. 4-2017

On January 26, 2017, the Governor of Puerto Rico approved Act No. 4-2017, known as the Labor Transformation and Flexibility Act (“the Act”).

Key aspects and provisions of the Act were outlined in our Client Newsletter dated January 26, 2017. As an attempt to strike a balance in keeping with the legislative intent, while protecting some rights accrued by current workforce, some of the rights and entitlements of employees under the various statutes were grandfathered for individuals employed prior to the Act’s effective date of January 26, 2017. However, other provisions and amendments were intended to apply to all employees.

One of the gray areas that created some confusion –– both for employees and seasoned employers alike –– was the amendment to the minimum monthly hours-worked thresholds for vacation and sick leave accrual. Specifically, Section 6(a) of the Act provides that “[e]very employee shall be entitled to a minimum vacation and sick leave accrual after working at least one hundred and thirty (130) hours a month.” Prior to the Act, this minimum-hour threshold was one hundred and fifteen (115) hours per month.

Given the fact that the Act did not specify if this increased threshold applied to all employees, regardless of hire date, some in the conservative sector interpreted that the amendments to vacation and sick leave (including the minimum threshold) only applied to new hires, while others interpreted that, though accumulation rates applied to new employees, the augmented threshold applied to all employees, regardless of hire date.

To dispel any confusion, and avoid potential fines to our clients, we submitted a consult to the Department of Labor (“DOL”) and recently received confirmation from the DOL that the 130-hour threshold applies to all employees, regardless of hire date, while the new accumulation rates set forth in the Act apply to employees hired after the Act’s effective date of January 26, 2017.

If you have any questions or comments regarding the Act or if you’d like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

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The content of this Newsletter has been prepared for information purposes only. It is not intended as, does not constitute and should not be construed as, either legal advice or solicitation of any prospective client. An attorney-client relationship with Casillas, Santiago & Torres LLC (CST) cannot be formed by reading or responding to this Newsletter. Such a relationship may be formed only by express engagement with CST.