Puerto Rico Labor Law Requirements 101

Puerto Rico has been a commonwealth of the United States since 1952, and the 3.7 million citizens of Puerto Rico also have automatic U.S. citizenship. The World Bank Group ranks Puerto Rico #40 on its list of countries rated for ease of doing business.

Employment law in Puerto Rico is covered both by U.S. labor law and Puerto Rico’s Constitution, which affirms the right of employees to choose their occupation, to have a reasonable minimum salary, a regular workday not exceeding eight hours, and to receive overtime compensation for work beyond eight hours.

The Puerto Rico Department of Labor and Human Resources is responsible for overseeing the legislation affecting workers and employment programs in Puerto Rico.

Puerto Rico Minimum Wage

The Minimum Wage, Vacation, and Sick Leave Act of Puerto Rico (Minimum Wage Act) was enacted in 1998. The Minimum Wage Act establishes that the federal minimum wage fixed by the Fair Labor Standards Act (FLSA) applies automatically to non-exempt employees in Puerto Rico who are covered by the FLSA. Currently, the U.S. federal minimum wage for non-exempt employees is set at $7.25 per hour. Employers not covered by the FLSA must pay a minimum wage to non-exempt employees of at least 70% of the applicable federal minimum wage.

Puerto Rico Overtime

Employees covered by the FLSA are entitled to overtime pay at a rate of 150 percent of their regular wage (commonly known as “time and a half”). If employees are not covered by the FLSA, they are entitled to a rate of two times their regular compensation rate for every hour worked beyond forty within a week.

Puerto Rico Christmas Bonus – ¡Feliz Navidad!

Known as el Bono de Navidad in Spanish, the Christmas Bonus is a mandatory annual payment to employees based on their earned wages for the year; however, Puerto Rico’s credit rating was recently lowered to “junk” status, and legislators are considering a reduction in the Puerto Rico Christmas Bonus as one measure to spur the economy.

For now, the Christmas Bonus rates are based on company size.

  • 15 or fewer employees: Bonus of 3 percent of employee’s earned wages
  • 16 or more employees: Bonus of 6 percent of employee’s earned wages

The bonus must be paid between December 1 and December 15 of each year.

No At-Will Employment in Puerto Rico

What do Puerto Rico and Montana have in common besides having Spanish names? Employees in Puerto Rico and Montana are not at-will employees, meaning that employees in Puerto Rico (and Montana) cannot be fired anytime, for any reason.

Employers in Puerto Rico (and Montana) should anticipate more difficulty than in other locations in the U.S. as Puerto Rico law favors employees.

Employers must demonstrate just cause for employee termination or risk paying a premium (una mesada) to the discharged employee that can be a severance package on steroids – including two months’ salary (minimum) plus progressive compensation depending on length of service.

How can employees in Puerto Rico be fired? Example of just cause for termination include:

  1. Documented pattern of improper or disorderly conduct.
  2. Measurable work performance issues (efficiency, quality, etc.).
  3. Violations of reasonable written rules.
  4. Closing of business operations.

Puerto Rico Labor Law Posting Requirements

In addition to required Federal labor law posters, employers in Puerto Rico are required to display a variety of work place postings to remain compliant with Puerto Rico labor law.

Required Federal Postings

  • Equal Employment Opportunity Is the Law
  • Federal Minimum Wage Notice
  • Employee Polygraph Protection Notice
  • Family and Medical Leave Act (FMLA)
  • Job Safety and Health “It’s the Law!” (OSHA)
  • Uniformed Services Employment and Reemployment Rights Act (USERRA)

Required Puerto Rico Commonwealth Postings

  • Working hours (29 L.P.R.A. § 283): Employers must display a printed notice of the:
  • Number of working hours required daily from employees for each day of the week.
  • Time to begin and end work.
  • Time to begin and end the period for taking food within the regular working hours.
  • Ley de Seguridad y Salud (Safety and Health Act)
  • SINOT Sistema de Compensasion por Accidentes del Trabajo (Workers’ Compensation)
  • Antidiscrimen “Discrimination Is Illegal”
  • Negociado De Normas de Trabajo

 Another Bonus: The National Anthem of Puerto Rico

Enjoy the Puerto Rico national anthem, La Borinqueña


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Could Your Accent Get You Fired?

According to the U.S. Census Bureau, 15% of the American workforce is foreign born, meaning that 23.9 million individuals legally employed in the U.S. may speak English with what is considered as a “foreign accent” by native American-English speakers.

Employees Face Workplace Discipline for Speaking English with a “Foreign Accent”

American workers whose first language is one other than English face many challenges in addition to learning a new language including facing disciplinary situations in the workplace. For example:

  • A FedEx driver was terminated in 2012 because an Iowa weigh station worker complained about the FedEx driver’s Russian accent, which the weigh station worker deemed too difficult to understand.
  • One Arizona teacher, born in Mexico, claims she was told by school district officials that state policy prohibited her from teaching English to her students because of her accent. She has filed a complaint of workplace discrimination with the Equal Employment Opportunity Commission (EEOC).

Is a Foreign Accent Grounds for Termination?

It depends.

The EEOC includes “accent” as a protected class in its National Origin Discrimination guidance, which states:

National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).

The EEOC forbids discrimination in all aspects of employment, including hiring and firing; however, (and this is a big “however”) an employer can require an employee to speak fluent English if fluency in English is necessary to perform the job effectively according to the EEOC.

Any claim of discrimination based on accent would have to prove:

  • The position does not require fluent English to be performed effectively; and/or
  • The employee’s accent is not an issue and the worker is generally understood within the context of the work environment and work assignments.


Beauty and the Briefs

The Northern District Court Illinois ruled that an attorney who was told she wasn’t “pretty enough” has grounds for damages in a case of age discrimination and whistleblower retaliation.

The City of Evanston, Illinois, population 75,000, is located just 12 miles north of Chicago, and the City apparently has an abundance of attractive attorneys.

Among several complaints of ageism and sexism leveled against the City, former Assistant City Attorney Elke Tober-Purze revealed that one male supervisor told her that previous female attorneys hired by the City were smart, good-looking (“just gorgeous”), and that these attractive attorneys wore tight sweaters and short skirts.

The supervisor further claimed that Tober-Purze was “not that pretty”.

Pretty or not, Tober-Purze received regular promotions, sufficient performance reviews, and no disciplinary actions, and yet she received a lower salary that her male counterparts. Despite Tober-Purze’s relevant experience and the experience of other females on staff, the City went outside of its existing employees to hire a younger male, W. Grant Farrar, as its City Attorney.

Additionally, the City is alleged to have a penchant for terminating older female employees and replacing them with younger workers.

Things got even uglier when Tober-Purze requested a vacation accrual payment, consistent with the City’s policy. Her supervisor told her she would lose a quarter of her accrued time, and he warned her against making a complaint regarding the lost hours.

Tober-Purze filed a complaint with the Illinois Department of Labor (IDOL), and shortly after the City received notification of the complaint, Tober-Purze was terminated for “ongoing performance issues” and for her complaint with the IDOL.

Tober-Purze’s case made four claims:

  • Sex discrimination, in violation of Title VII of the Civil Rights Act.
  • Age discrimination, in violation of the Age Discrimination in Employment Act (ADEA).
  • Violation of the Illinois Wage Payment and Collection Act, for failure to pay vacation and sick time.
  • Violation of the Illinois Wage Payment and Collection Act for unlawful retaliation.

The court found that, among other items, Tober-Purze had successfully triggered protection under the ADEA by proving she:

  • Was more than forty years old.
  • Performed her job according to employer expectations.
  • Suffered an adverse employment action.
  • Was treated less favorably than similarly situated and younger employees.


Complaint Claims Employee is Worth the Weight

Employers who terminate obese employees may find themselves in court.

One Arkansas-based employer went on a reducing plan of sorts by terminating one of its employees for being overweight.

In a complaint filed in the U.S. District Court for the Eastern District of Missouri, plaintiff Joseph Whittaker claims that his former employer, America’s Car Mart, unlawfully terminated him for being obese.

The employer alleges that Whittaker’s obesity adversely affected his ability to perform the required duties of his role as a General Manager, but Whittaker argues that he was able to perform the essential functions of his position, with or without accommodation.

Whittaker filed his action under the auspices of the Americans with Disabilities Act and the Civil Rights Act.

The ADA defines a person with a disability as:

  • a physical or mental impairment that substantially limits one or more major life activities of such individual;
  • a record of such an impairment; or
  • being regarded as having such an impairment

Whittaker’s case may be bolstered by the American Medical Association’s recognition of obesity as a disease and the U.S. Centers for Disease Control (CDC) obesity-reduction initiatives.

America’s workforce is expanding – at least around the waistline. More than one-third of adults in the U.S. are clinically obese, and the trend toward larger and less mobile employees is growing.

The CDC defines an obese adult as someone with a body mass index (BMI) of 30 or higher. BMI scores tend to reveal the amount of fat in the body when compared to weight and height factors.

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Are You Obese?

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Check out this handy BMI calculator.

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Effects of Prolonged Obesity

The CDC identifies the following as health consequences of obesity:

  • Coronary heart disease
  • Type 2 diabetes
  • Cancers (endometrial, breast, and colon)
  • Hypertension
  • Dyslipidemia
  • Stroke
  • Liver and gallbladder disease
  • Sleep apnea and respiratory problems
  • Osteoarthritis
  • Gynecological problems (abnormal menses, infertility)

The current Surgeon General, Dr. Regina Benjamin, claims the “epidemic of overweight and obesity threatens the historic progress we have made in increasing America’s quality and years of healthy life.”

 

3 Lessons for Employers after Double-Whammy ADA and GINA Court Case

In the first settled case of its kind, a U.S. employer was found in violation of both the Genetic Information Nondiscrimination Act of 2008 (GINA) and the Americans with Disabilities Act (ADA).

Fabricut, Inc., a distributor of decorative fabrics, will pay $50,000 to settle a disability and genetic information discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC enforces federal laws prohibit

ing employment discrimination. This is the first lawsuit ever filed by the EEOC alleging genetic discrimination.

Here are three key lessons employers should remain mindful in terms of hiring, promotion, and termination policies.

­1. Employers: Ask No Family Medical History Questions.

Employers should be sure they are not requesting information regarding family medical history at any time during hiring process or employment.

When Rhonda Jones’ temporary position at Fabricut was coming to an end, she applied for a permanent job. She received a preliminary offer from the company for permanent employment, contingent on pre-employment screening. The court ruled that Fabricut violated GINA by asking Jones questions about her family medical history during a post-offer, pre-employment medical examination.

“Employers need to be aware that GINA prohibits requesting family medical history,” said David Lopez, General Counsel of the EEOC.

GINA restricts employers from requesting, requiring or purchasing such information. GINA was signed into law in 2008, and took effect in 2009. Title II of GINA makes it illegal for employers to discriminate against employees or applicants based on their genetic information. GINA also restricts employers from requesting or obtaining genetic information, which includes any information about an employee or applicant’s family medical history.

2. No Loopholes for Third Party Medical Providers.

Requesting family medical history through a third-party medical provider or examiner violates GINA.

After making Jones an offer of permanent employment, Fabricut sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. As part of the physical, Jones was required to disclose disorders in her family medical history.

EEOC Regional Attorney Barbara Seely. “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.”

Note: GINA does not prohibit health insurers or health plan administrators from obtaining and using genetic test results in making health insurance payment determinations.

3. Increased Enforcement Puts Employers’ Policies in Spotlight.

The EEOC is launching a coordinated investigation and enforcement effort as part of its Strategic Enforcement Plan across the spectrum of equal employment law, which includes genetic discrimination. Although this case is considered the first one settled under GINA, it also brought to light violation of the ADA.

As part of a physical examination on Jones, Knox Laboratory concluded she suffered from carpal tunnel syndrome (CTS). Jones’ personal physician countered that Jones did not have CTS, but Fabricut rescinded its job offer based on the findings of Knox Laboratory.

In addition to the GINA violation, the EEOC alleged that Fabricut violated the ADA’s prohibition against discriminating against qualified individuals with disabilities (or perceived to have disabilities) when it rescinded Jones’ employment offer based on the belief that Jones had CTS.

In addition to the $50,000 settlement, Fabricut will post an anti-discrimination notice to employees, dissemination of anti-discrimination policies to employees and providing anti-discrimination training to employees with hiring responsibilities.

Has it been a while since you’ve updated your labor law postings? Now would be a great time to make sure your employees have access to the most current workplace postings ­and save 20%. Order our convenient Federal-on-One poster that contains all postings required for U.S. employers. It includes the EEOC It’s the Law anti-discrimination posting.

Jokes and Tweets End with Two Fired Techies

twitter bombAdria Richards began the 2013 Pycon Technical Conference as an employee and evangelist for email service provider SendGrid and ended up as a former employee – all because of inappropriate humor.

No, it wasn’t Adria Richards who made tasteless jokes that got her fired. She was the one who took offense at some of the banter going on behind her during the keynote session at Pycon, which is the largest annual gathering for developers who use open-source Python programming language. She decided she to challenge the behavior.

In addition to asking conference organizers to deal with the situation, she tweeted:

Not cool. Jokes about forking repo’s in a sexual way and “big” dongles. Right behind me #pycon pic.twitter.com/Hv1bkeOsYP

The jokesters were chastised by Pycon organizers. Richards’ tweet, however, had amplified the situation. The man making the crude comments eventually was fired for his behavior and later went on to apologize to Richards on Hacker News.

Richards was terminated, too.

In separate SendGrid blog posts, CEO Jim Franklin announced first the termination of Adria Richards and then the justification.

Effective immediately, SendGrid has terminated the employment of Adria Richards. While we generally are sensitive and confidential with respect to employee matters, the situation has taken on a public nature.

Her decision to tweet the comments and photographs of the people who made the comments crossed the line. Publicly shaming the offenders – and bystanders – was not the appropriate way to handle the situation. Even PyCon has since updated their Code of Conduct due to this situation.

“Donglegate” and Richards’ tweet sparked a variety of reactions online, ranging from thoughtful analysis and full support to having her web site hacked and receiving death tweets.


NLRB Reverses More Facebook Firings

NLRB-Facebook-firingsHispanics United of Buffalo, Inc. helps the Latino community in western New York. The company fired five employees for allegedly bullying a coworker via Facebook posts.

It all began with some text messages between two employees, Marianna Cole-Rivera and Lydia Cruz-Moore. Cruz-Moore apparently felt that certain employees weren’t doing enough to help their domestic-abuse clients, and this finally rubbed Cole-Rivera the wrong way.

She took it to Facebook, posting:

Lydia Cruz, a coworker feels that we don’t help our clients enough at [Hispanics United]. I about had it! My fellow coworkers how do u feel?

Four employees posted follow-up messages that they disagreed with Cruz-Moore’s assertions.

Cruz-Moore also posted, telling Cole-Rivera to “stop with ur lies about me.”

She then complained to management, and Hispanics United discharged Cole-Rivera and her four coworkers claiming their remarks constituted “bullying and harassment” in violation of a “zero tolerance” policy.

An administrative law judge initially determined the terminations were invalid, and the NLRB upheld the decision, noting:

  • The employees’ activity was “concerted”.
  • The employer knew of the concerted nature of the employee’s activity.
  • The concerted activity was protected by the National Labor Relations Act.
  • The discharges were motivated by the employees’ protected, concerted activity.

Meanwhile, Google+ is gaining ground against Facebook. Maybe the NLRB and the Supreme Court will be dropping terms like “plussing” and “hangouts”.

 

 

Submitted by Chaunce Stanton

Employment Non-Discrimination Act Gaining Ground for LGBT Employees

English: Rainbow flag flapping in the wind wit...

ENDA would prohibit workplace discrimination of LGBT persons.

Both the U.S. House of Representatives and the Senate are evaluating the merits of the Employment Non-Discrimination Act. The Bill would protect the approximately 9 million Americans who identify as lesbian, gay, bisexual and transgender people from discrimination in hiring and employment.

Employer Federal Posting Update

ENDA includes a posting component in Section 13. If passed, the Bill would require employers to display an updated version of the Equal Employment Opportunity Commission’s Equal Opportunity is the THE LAW posting six months after enactment.

EEOC Steps Up – But Not a Sure Thing

In the current version of Title VII of the Civil Rights Act, the following employee categories are protected from workplace discrimination:

  • Race
  • Color
  • Religion
  • Sex (including pregnancy)
  • National origin
  • Disability
  • Genetics
  • Veterans

In a 2012 case (Macy v. Holder) the EEOC interpreted existing laws that prohibit discrimination on the basis of sex to also prohibit discrimination on the basis of gender identity. The case involved Mia Macy, a transgender woman, who was not hired for a position with the Bureau of Alcohol, Tobacco, Firearms and Explosives based on her gender identity and transition.

Without language clearly identifying protections specifically for LGBT employees, the Supreme Court could overturn the EEOC ruling in Macy or similar cases.

Employers and U.S. States Fill the Gap

Even without enactment of ENDA, many U.S. employers have implemented anti-discrimination policies that include protections for their LGBT employees. A Williams Institute analysis found that 98 percent of Fortune 50 companies and 90% of the top 50 federal contractors protect gay workers. Protections for transgender people lag in those same companies, however, with only 67 percent of federal contractors and 88 percent of Fortune 50 companies offer protections based on gender identity.

Twenty-one states and the District of Columbia prohibit employment discrimination based on sexual orientation, whereas only 16 states and D.C. offer similar protections for gender identity.

Which Employers Would Be Required to Comply with the Act?

The revised Act would apply to public and private employers with 15 or more employees. However, volunteers, members of the military, and employees of religious institutions and private membership clubs would not be protected under the Act.

For example, ENDA’s protections would not cover Carla Hale, a teacher at a Catholic high school in Ohio who was fired for her sexual orientation. Her employer, Bishop Watterson High School, would be exempt from the Act because of its protected status as a religious institution.

http://www.youtube.com/watch?v=iYyvPi06B6U

Whistleblower Wins Big Against New Jersey Blood Bank

Court awards $2 million to terminated whistleblower.

CEPA posting EnglishA New Jersey blood bank employee alerted his supervisors that staffing schedules left serious gaps in available skill sets, including personnel capable of performing “cross matches” and other blood-screening procedures. The lack of qualified technicians created a potentially life-threatening situation for at least one patient who required a cross match from the Bayonne Medical Center blood bank.

The whistleblowing employee also pointed out that his direct supervisor did not have the requisite credentials for her job as established the New Jersey State Sanitary Code.

Management ignored the employee’s complaint, but the unqualified supervisor learned of the complaint. Thereafter the employee found that he was being repeatedly disciplined and “micromanaged” for the two months leading up to his termination after twenty years as a staff hematologist.

After investigating, the New Jersey Department of Health substantiated the terminated employee’s allegations that the medical center’s practices violated state regulations. A New Jersey Superior Court found that the termination was an intentional act of egregious retaliation under the New Jersey Conscientious Employee Protection Act (“Whistleblower Act”).

In addition to paying the former employee $2 million, the medical center must modify its staffing plans and must reassign the under-qualified supervisor who retaliated against the employee.

New Jersey Whistleblower Act

New Jersey law prohibits an employer from retaliating against an employee calling attention to employer practices that the employees believes is illegal or that constitutes improper patient care.

The Whistleblower Act notice must be conspicuously displayed. Additionally, employers with 10 or more employees must distribute notice of this law to their employees annually.

The notice is included as part of GovDoc’s New Jersey State-on-One laminated poster in English and Spanish, along with the other workplace postings required for New Jersey employers:

  • Unemployment and Disability Insurance
  • State Wage and Hour Abstract
  • Schedule of Hours for Minors
  • Child Labor Law Abstract
  • Discrimination in Employment
  • Payment of Wages
  • Notice (Workers’ Compensation)
  • Family Leave Act
  • Conscientious Employee Protection Act (Whistleblower)
  • Conscientious Employee Protection Act (Whistleblower) (Spanish)
  • Smoking Prohibited
  • Family Leave Insurance
  • Employer Obligation to Maintain and Report Records