Forums For Adjudicating Employment Disputes
As an unincorporated territory of the United States (US), Puerto Rico enjoys a dual legal system which grants access to Puerto Rico state courts of general jurisdiction and the US District Court for the District of Puerto Rico, a federal court of limited jurisdiction. US District Court decisions are subject to appeal before the First Circuit Court of Appeals in Massachusetts and subsequently to the US Supreme Court. Both federal and local judicial forums can adjudicate employment disputes depending on the causes of action involved and the laws that support them.
In addition to judicial forums, claimants may present their causes of action before US federal and Puerto Rico administrative forums such as, among others, the Puerto Rico Department of Labour and Human Resources (PR-DOL), the US Department of Labour (US-DOL) and the US Equal Employment Opportunity Commission (EEOC). The PR-DOL, in particular, is the governmental agency responsible for the administration of public policy relating to labour and employment legislation, occupational safety, unemployment insurance benefits, re-employment services and human resources training. The divisions of the PR-DOL, with which employees commonly file administrative claims, include the Bureau of Employment Norms, the Office of Mediation and Adjudication, and the Anti-Discrimination Unit. Under a work-sharing agreement, the latter is the EEOC's state counterpart that handles discrimination complaints.
The Main Sources Of Employment Law
Due to its characteristic dual legal system, US federal laws and local legal provisions coexist in Puerto Rico. Thus, Puerto Rico enjoys both US and local constitutional, legal and regulatory protections in an employment context. One of the most important sources of local employment law is Act No. 4 of 26 January 2017, the Labour Transformation and Flexibility Act (LTFA), also known as the Puerto Rico Labour Reform. The LTFA amended the main local sources of employment law in Puerto Rico with the purpose to create a more flexible local employment landscape and favourable jurisdiction for employers.
Besides the LTFA, Puerto Rico has a wide array of employment laws, the main of which include, among others, Act No. 80 of 30 May 1976 (unjust dismissal), Act No. 100 of 30 June 1959 (Puerto Rico’s general anti-discrimination statute), Act No. 115 of 20 December 1991 (retaliation), Act No. 17 of 22 April 1988 (sexual harassment at the workplace), Act No. 44 of 2 July 1985 (disability discrimination), Act No. 90 of 7 August 2020 (workplace harassment), all as amended, together with several other anti-discrimination and anti-retaliation laws and provisions discussed in further detail below. Puerto Rico employment laws also expand US federal wage and hour laws and regulations, providing for vacation, sick and multiple other leaves not available at the federal level. Some of the main wage, hours, and statutory leave laws include Act No. 379 of 15 May 1948 (local wage and hours), Act No. 180 of 27 July 1998 (vacation and sick leave), and Act No. 3 of 13 March 1942 (working mothers), all as amended.
In procedural terms, one of the main employment laws in Puerto Rico is Act No. 2 of 17 October 1961 as amended, which facilitates employees’ access to Puerto Rico’s judicial system, through a special expeditious proceeding to file employment-related lawsuits in state courts. This statutory summary proceeding not only provides for the expeditious handling of claims, but also imposes strict requirements and restrictions, as well as severe consequences on employers.
National Law And Employees Working For Foreign Companies
Puerto Rico and federal employment laws apply equally to all employees working in Puerto Rico, including those working for foreign companies on the Island. Moreover, employees who work in the US or its territories are generally protected under US Equal Employment Opportunity (EEO) laws, regardless of their citizenship or work authorisation status or whether they work for a US or foreign employer.
National Law And Employees Of National Companies Working In Another Jurisdiction
Puerto Rico and US employment law will generally apply to employees who work in Puerto Rico, the US, or its territories. Moreover, there may be certain instances in which local law may apply to Puerto Rico residents that are working in another jurisdiction, where Puerto Rico law provides more benefits or is more favourable to the employee that the laws of the jurisdiction in which the Puerto Rico employees is working.
Puerto Rico does not have a formal data protection agency or government body responsible for supervising the collection, use and dissemination of employees' personal information gathered by a public or private corporation. The right to privacy, nonetheless, is recognised under the Constitution. Additionally, local, and federal laws recognise the confidential nature of certain information gathered by businesses. Depending on the nature of the information, a higher or lesser degree of confidentiality and reasonableness is applicable to employment records and employees' private data.
- Cross-border data transfers
Companies do not need to register for the purposes of a cross-border data transfer of an employee's personal information. To the extent that records and information transferred include employees' private data, a company must take necessary steps to protect it from indiscriminate or public disclosure. The applicable standard should be that of a prudent businessperson.
- Sensitive data
Various federal and local employment laws specify the confidential information that employers must protect from public disclosure.
ADA and the Genetic Information Non-discrimination Act of 2008 (GINA), both as amended, and their local counterparts, protect employees' genetic, medical, and health-related information, and data in the employment context, or relating to disabilities or requests for accommodation (or both). This information must be kept in separate records. Enforcement guidance issued by the EEOC under the ADA, and applicable in Puerto Rico, concerning disability-related enquiries and medical examinations of employees, suggests that any medical information concerning employees' disabilities must be treated as confidential. Employers may share this type of information in limited circumstances with supervisors, safety personnel and government officials investigating compliance with the ADA.
Additionally, Puerto Rico Act No. 207 of 27 September 2006 and its regulation prohibit employers from using an employee's social security number for identification purposes and requires safeguards to protect it from undue disclosure. An employer may only transfer social security numbers electronically when there are sufficient safeguards to protect their confidentiality.
Further, Puerto Rico's legislation prohibiting discrimination based on sexual orientation and gender identity requires employers to keep information of this nature confidential. A similar protection from disclosure is afforded to information gathered during an investigation to protect a domestic violence victim who is at risk in the workplace, or who is alleging discrimination and/or harassment. Employers must take reasonable measures to prevent disclosure of confidential information to persons who have no need to know the information. Employers must also maintain the confidentiality of any information in respect of special statutory leave taken to tend to situations relating to domestic violence, child abuse, sexual harassment in the workplace, sexual assault, lewd acts or stalking in its grave modality.
Furthermore, Puerto Rico Act No. 59 of 2007 requires employers who carry out drug tests on job applicants and employees in the private sector to treat the test results and related data as confidential. Also, to the extent that Form I-9 for employment eligibility contains personal information about employees, the US Citizenship and Immigration Service recommends that employers provide adequate safeguards to protect it.
Finally, the privacy and security provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) apply to employers who are covered entities in Puerto Rico.
- Background checks
Employers can perform background checks on job applicants and current employees, subject to legal parameters established in Act No. 150 of 8 October 2019 (Act 150). To the extent allowed by Act 150, employers must also comply with the US federal Fair Credit Reporting Act of 1970 (FFCRA) by notifying the applicant or employee of the possibility of using their background report for employment decisions, getting their written permission, and certifying compliance to the reporting agency. If an employer takes an adverse employment action based on the individual's credit report or credit history, it shall provide a copy of the report to the job applicant or employee and a notice of rights with the contact information of the consumer reporting agency. Its Puerto Rico counterpart, the Credit Reporting Agencies Act, provides similar protections.
Furthermore, employers may perform criminal background checks on employees and job applicants. In addition, subject to limited exceptions, areas outside the scope of review include genetic, medical, and disability-related information about job applicants or current employees. Considering other categories revealed in background checks, such as filing for bankruptcy, military service, or discharge records, may expose employers to discrimination claims.
Legal Requirements As To The Form Of Agreement
In general, an employment agreement is not required to establish the employment relationship. If one is executed, however, it will be governed by state and federal statutes, as well as the Puerto Rico Civil Code. Moreover, a written employment contract is not required since agreements in Puerto Rico can be binding regardless of whether they are in writing. Nonetheless, as a practical matter, it may be advisable to execute a written employment agreement that establishes the terms and conditions of employment, such as base salary, benefits, responsibilities, and job expectations, to name a few. In addition, employment rights in Puerto Rico can stem, not only from the employment contract, but also from an employee handbook, employment offer, collective bargaining agreement or similar contract.
Employers are advised to always reserve expressly their right to interpret unclear clauses or in any of their agreements.
In addition, although the LTFA increased flexibility in the employment relationship and reduced the need to have employment agreements in writing, there are still certain specific, employment-related obligations that can only be validly established through a written agreement. The following are some examples of agreements that still need to be executed in writing:
- agreements with non-exempt employees to reduce the statutory meal break, to fragment the use of vacation leave, to use non-working days as part of a vacation period, to partially liquidate and pay accumulated and unused annual leave in excess of 10 days, and to accumulate annual leave in excess of one year;
- non-compete agreements and some other restrictive covenants; and
- voluntary agreements with non-exempt employees to establish alternative, weekly work schedules to fulfil a 40-hour week in no more than 10 consecutive working hours per day, without incurring daily overtime liability.
Act No. 80 of 30 May 1976, as amended (Act 80), authorises the hiring of new employees for an indefinite term on a probationary basis. Employees properly classified as executives, professionals or administrators are subject to an automatic 12-month trial period. All other employees are subject to an automatic nine-month trial period unless a shorter period is agreed between the employee and the employer. Generally, during the trial or probationary period, the employer may discharge, or terminate the employment of an employee without just cause and without responsibility for the severance payment established under Act 80. The termination, however, cannot be for discriminatory reasons.
Hours Of Work
Wage and hours coverage in Puerto Rico for non-exempt employees is governed by the US Fair Labour Standards Act (FLSA) as well as local laws. Act No. 379 of 15 May 1948, as amended (Act 379), coexists with the FLSA and, together with its regulation, controls hours and days of work, overtime compensation and a mandatory meal break for non-exempt employees. Administrators, executives, professionals, computer programmers and outside salespersons – as these terms are defined under Regulation No. 13 of the PR-DOL or US Federal Regulation No. 541 – are some of the occupational classifications excluded from the application of the FLSA and Act 379, as well as other wage and hour provisions.
According to Act 379, eight hours is the length of the regular working day in Puerto Rico, and 40 hours is a regular working week. In addition, pursuant to Act No. 289 of 9 April 1946, as amended, non-exempt employees are entitled to one day of rest for each period of six consecutive days of work. For these purposes, one day of rest is considered to comprise 24 consecutive hours.
Under Act 379, non-exempt employees are entitled to a one-hour unpaid meal break. This break can start after the second consecutive hour of work and, to avoid a meal-break penalty, it must also be scheduled before the beginning of the sixth consecutive hour of work. If a non-exempt employee's working day consists of no more than six hours, the meal break may be waived. If the employee works for more than 10 hours per day, the employee is entitled to a second meal break. This second meal break may be waived when a working day does not exceed 12 hours, provided the first meal break was taken.
The meal break may be reduced to 30 minutes, and in some cases to 20 minutes, by means of a written stipulation. The agreement to reduce the meal break will be effective indefinitely and cannot be terminated unilaterally until one year after its effective date. In other words, before one year expires, both parties must consent to the termination and after one year expires, either the employer or the employee can terminate the agreement unilaterally to reduce the meal break.
With respect to overtime, the LTFA established a new uniform rate of pay for non-exempt employees hired after 26 January 2017. The rate, which is equal to the rate established by the FLSA, consists of one and half times the regular rate of pay for hours worked in excess of eight hours during any calendar day (daily overtime), hours worked in excess of 40 hours in a week (weekly overtime) and hours worked during the meal break, the day of rest, when a commercial establishment is required to remain closed to the public, or when provided by a collective bargaining agreement.
Non-exempt employees hired prior to the enactment of the LTFA maintain superior benefits to which they were already entitled, which may include overtime compensation at double their regular rate of pay, when applicable and depending on a variety of circumstances and the industry in which they work.
Through company policy, employers may establish limits to the overtime work they will allow employees to perform. However, any work employees perform for the benefit of the employer, generally requires compensation even when unauthorised.
Finally, the LTFA now provides for three flexible-work arrangements for non-exempt employees. These flexible working arrangements encompass alternative work schedules, compensatory time, and modified working conditions.
Special Rules For Part-time Work
Part-time work is not directly regulated in Puerto Rico; but certain legal provisions may grant different entitlements depending on whether the employee works on a full-time or part-time basis. For instance, under Act No. 427 of 16 December 2000, as amended, working mothers are entitled to a one hour leave period for breastfeeding or to express milk, while mothers working part-time and who have a daily shift that exceeds four hours, are entitled to 30 minutes for each period of four consecutive hours of work.
Generally, the federal minimum wage for non-exempt employees, as established under the FLSA (currently US$7.25 per hour), will automatically apply to Puerto Rico. For employers not covered under the FLSA, local Act 180 requires them to pay non-exempt employees a minimum wage of at least 70% of the applicable federal minimum wage. Different minimum wages may be applicable to federal contractors. Also, per the FLSA, employees who work for tips may be compensated at an hourly wage of no less than US$2.13 per hour in direct wages. If tips are not sufficient to bring wages to minimum wage, the employer shall pay the difference to the tipped employee. On the other hand, exempt employees must be compensated with a salary of at least $455 per week to maintain their exempt classification of employment.
Besides the meal period discussed above, Puerto Rico Act No. 289 of 9 April 1946 grants the right to one unpaid day of rest for every six days of work to every employee of any operating for profit or not-for-profit. Working on the day of rest will be considered overtime. This overtime pay requirement applies only when the employee works any period of time for the six consecutive days that make up that workweek. In addition, per the LTFA, work performed in certain retail establishments on Good Friday and Easter Sunday is subject to premium pay.
Non-exempt employees are entitled to a statutory vacation leave for every month in which they work at least 130 hours. Government employees, executives, administrators, and professionals, as defined under Regulation No. 13 of the PR-DOL, and employees covered by a collective bargaining agreement are excluded from this vacation leave entitlement.
Minimum leave accrual rates vary depending on when the employee was hired. Those hired before 26 January 2017, maintain the minimum accrual provided under Act 180 of at least 1 ¼ day of vacation leave for each month in which they comply with the minimum hourly requirement. Those hired on or after 26 January 2017, accumulate vacation leave based on the years of employment: ½ a day during the first year of service; ¾ of a day after the first year of service until five years of service; one day after five years of service until completion of 15 years for service; and 1¼ after completion of 15 years of service. As an exception, employees hired on or after 26 January 2017, who work for Puerto Rico employers with 12 or less employees, are entitled to a minimum monthly accrual of ½ day per month without variations for several years of service.
Employees may not claim vacation leave until they have been accruing it for a year. Vacation leave should be granted annually; and the employer has discretion to schedule or approve the employees’ vacation, so as not to disrupt business operations. Generally, vacation leave should be enjoyed consecutively; however, by agreement between the employer and the employee, vacation leave may be fractioned as long as the employee enjoys at least five consecutive working days of vacation leave during the year.
By agreement between employee and employer, vacation leave may be accrued for up to two years at the end of which the employer will have to pay off the amount of vacation leave accrued. If more than two years are accrued, the employer will be obligated to pay twice the amount of the accumulated days in excess of two years.
The employment of minors in Puerto Rico is regulated through Act No. 230 of 12 May 1942 (Act 230), which establishes the specific requirements and obligations employers must follow to employ minors. Specifically, Act 230 permits minors between 14 years of age and less than 16 years of age to work, provided they have a special permit issue by the Secretary of the Puerto Rico DOL. There is no maximum age limit for employees to be able to continue to work.
Puerto Rico and federal laws provide several benefits and protections to ill and/or disabled employees. In addition, there are about three laws that offer benefits for occupational and non-occupational accidents and illnesses, as discussed below.
Act 180, for instance, grants non-exempt employees one day of sick leave for each month in which they work 130 hours. If an employee does not use their sick leave, they may accumulate it up to a maximum of 15 days per year. Act 180 also grants employees who work for employers with 16 or more employees the right to use up to five days of their balance for the care and attention of their children, spouse, parents or minors, elderly, or handicapped persons over whom they have custody or legal guardship. To benefit from this caregiver leave, employees must maintain at least five days of sick leave for their own use.
In addition, because of the COVID-19 pandemic, Puerto Rico Act No. 37-2020 amended Act 180 to provide for an additional five working days for non-exempt employees to be used during declarations of state of emergency decreed by Puerto Rico’s Governor or its Secretary of Health. Non-Exempt employees are eligible to use this special sick leave if they are infected, or are suspected to be infected, with the disease or epidemic that caused the declaration of emergency. Eligible employees may only use this special sick leave if they remain sick after they have exhausted their accrued sick leave and any other accrued leaves of absence to which they are entitled.
Under Act No. 28 of 21 January 2018, certain Puerto Rico employees also enjoy a special paid leave for a maximum of six working days per year if they suffer from one of the Serious Disease of Catastrophic Character listed by the Special Coverage of the Health Insurance Administration of Puerto Rico and by other applicable regulations. This leave is available to employees who have worked for their employer for at least 12 months.
In terms of protections, Act 60-2018 prohibits employers from using properly justified sick leave as a criterion for the evaluation of non-exempt employees’ efficiency or to justify disciplinary actions such as suspensions or dismissals. These absences cannot be taken into consideration when granting raises or promotions in the company, or for the imposition of disciplinary measures.
Also, Act No. 44 of 2 July 1985, as amended (Act 44), prohibits the discrimination in the employment by reason of physical, mental, or sensory physical impairment, solely based on such impairment. This prohibition extends to recruitment, compensation, fringe benefits, reasonable accommodation facilities and accessibility, seniority, participation in training programs, promotion and any other term, condition, or privilege of employment. Act 44 specifically prohibits the use of job application forms to inquire about present or past physical, mental, or sensory impairments. Doing so will trigger the presumption that the employer is discriminating based on a disability, and the employer will have the burden of proof to prove the contrary if a complaint is ever filed. An employer may inquire whether the candidate has an impairment only when the position has been offered and accepted, and only to be able to offer reasonable accommodations. As an exception, employers can inquire about impairments only if all applicants are required to take a performance test to qualify for the position applied for.
Act 44 also states that the government, its municipalities, and all private companies with fifteen or more employees are required to make reasonable accommodations to ensure that qualified persons with disabilities are allowed to work effectively to the maximum extent possible.
Location Of Work/Mobility
Among the flexible-work arrangements established under Act 379, non-exempt employees may request changes of schedule, working hours or work location. An employee is entitled to make the request if it is in writing, he or she works 30 hours or more per week, has worked for at least one year for the employer and has not made the same request in the six months since the employer's last response to such a request. There are other requirements applicable to the response the employer must provide. Employees are not automatically entitled to a change in work conditions just because they make the request. Priority must be given to employees who are head of a family or have legal/sole custody of their minor children.
Employers in the private sector may voluntarily establish pension and/or retirement plans for the benefit of its employees and their beneficiaries. Most of these voluntary benefit plans are subject to the provisions of Puerto Rico Internal Revenue Code of 2011, as amended, and the US federal law titled Employee Retirement Income Security Act of 1974, as amended (ERISA), and regulations issued thereunder.
Parental Rights (Pregnancy/ Maternity/ Paternity/ Adoption)
Puerto Rico Act No. 3 of 13 March 1942 (Act 3) provides for maternity leave. Under Act 3, pregnant (and some experiencing a miscarriage) are generally entitled to eight weeks of maternity leave paid by the employer (four weeks before the birth and four weeks afterwards, but typically subject to change depending on the employee's ability to work and medical certifications). Adopting mothers of children aged six years or older are generally entitled to five weeks of maternity leave from the date the minor child joins the family. If a pregnant employee suffers post-partum complications and is still unable to work after taking all the weeks of post-partum rest, she is entitled to additional unpaid leave of up to 12 weeks, provided that, before the expiry of the extended rest period, she provides the employer with a medical certificate confirming the facts. The employee is entitled to reinstatement at the conclusion of the original and the extended leaves of absence and double damages for violations of Act 3.
Act 3 prohibits discrimination in employment because of pregnancy, childbirth, and related medical conditions. It makes it unlawful for an employer to dismiss, lay off, reduce the salary, or affect other conditions of employment for the aforementioned reasons, or because of the diminished productivity or a decrease in the quality of work performed by an employee while pregnant. Puerto Rico Act No. 69 of 6 July 1985 also protects pregnant women from employment discrimination.
Puerto Rico law does not provide for paternity leave. However, the US Federal Family Medical Leave Act (FMLA) applies in Puerto Rico and entitles eligible employees (male and female) of covered employers to take 12 weeks of unpaid, job-protected leave for specified family and medical reasons, including the birth and caring of a new-born child within one year of birth; the placement with an employee of a child for adoption or foster care within one year of placement; or to care for a child with a serious health condition.
There are generally no compulsory terms required in an employment agreement. The above notwithstanding, agreements that must be in writing, as indicated in the previous section, must contain the minimum requirements established by law.
The contracting parties may establish all covenants, clauses, terms, and conditions that they deem appropriate provided that they are not contrary to law, morale, or public order. In this sense, the agreed terms may never be less favourable than the minimum requirements established by the applicable legal provisions.
Types Of Agreement
Individuals in Puerto Rico may enter into any contracts they deem appropriate, so long as the arrangement is not contrary to law, morale, or public order. Consequently, employers may execute multiple types of agreements with their employees or other individuals such as independent contractors. In that respect, there are multiple types of agreement in the employment context such as, employment agreements for an indefinite term, fixed-term employment agreements (contracts for a specific period of time or for a particular project), independent contractor agreements, confidentiality agreements, non-competition agreements, and non-solicitation agreements, among others.
Under the Trade Secrete Protection Act of Puerto Rico, Act No. 80 of 3 June 2011, any person who misappropriates a commercial secret is liable for damages to the owner of the trade secret. Available relief includes money damages, injunctive relief, and attorney fees. Employers can establish confidentiality policies, as well as execute restrictive covenants such as confidentiality and nondisclosure that oblige the employee to keep the confidentiality of certain information from the employer to which they have or had access during their employment relationship. In doing so, employers must ensure the restrictions do not unduly impede employees from exercising their rights under the National Labour Relations Act of 1935 (NLRA). Among others, the NLRA grants employees the right to engage in protected, concerted activities to address or improve working terms and conditions.
Ownership of Inventions/Other Intellectual Property (IP) Rights
Ownership of inventions or copyrightable material, both as defined under federal law (the Patent Act and the Copyright Act of 1976, as amended, respectively) govern exclusively the vesting of inventor or author rights by employees. In the case of inventions, those will vest in the employee’s favour unless there is a written agreement in the contrary, indicating that the employee assigns all rights to inventions made during the term of employment to the employer. In the case of author rights (copyrights), those will vest under one of two scenarios, absent a written agreement to the contrary.
If the employee is creating an original work of authorship, subject to copyright protection, as part of his duties as an employee, then the work will vest in favour of the employer as a work made for hire. In this case, it is crucial for the employee to be exercising his/her role, and not create the work in something unrelated to his/her duties. This exception does not apply to independent contractors. If the employee creates a work but is not one that falls under the employee’s duties, then the work will vest in favour of the employee and not the employer.
When there is a written agreement indicating that the work created is a work made for hire, the work will accrue to the employer by virtue of that written agreement. Likewise, an employer can have an employee sign an assignment agreement where all works created by them are assigned to the employer.
In the case of trademark rights, those will not vest in favour of the employee since it is crucial for a trademark right to exist, that the mark is to be used in commerce. Therefore, in such a case, it would never be the employee using it in commerce, but rather the employer.
In Puerto Rico, the principle of equal opportunity in employment prevails. As consequence, employment decisions must be based on an individual’s qualifications and capabilities to perform the essential functions of a particular job and business needs, without regard to age, citizenship, race, colour, sex, sexual orientation, gender identity, disability, pregnancy, social or national origin, social condition, credit history (as applicable), political affiliation, political ideas, religious ideas, marital status, genetic information, actual or former military status or current or former service in the United States Armed Forces, being a victim or being perceived as a victim of domestic violence, sexual assault or stalking, and/or any other category protected by state and/or federal law (collectively, “Protected Categories”). Further, various federal and local statutes contain provisions regulating the information an employer can obtain and/or request from a candidate during the recruitment process. Likewise, several federal and local statutes or judicial expressions have limited the scope of the information to be obtained and the permissibility of its use.
For instance, Act No. 16-2017, also known as the local Equal Pay Act, prohibits employers from asking an applicant or inquiring to his/her current or former employer about the applicant’s current salary or salary history. However, the potential employer may obtain such information (i) through the employee’s voluntary disclosure and confirm the same; or (ii) if a compensation rate has already been negotiated and an offer of employment was extended.
Pre-employment background checks are permissible in Puerto Rico as long as they are done in compliance with the applicable legal requirements some of which are summarised in the Data Privacy section above. In addition, one of the most common pre-employment background checks in Puerto Rico is a criminal background check. This verification is done by requesting a certificate of good conduct issued by the Police Department. Aligned with the EEO principle, however, employers should abstain from making employment decisions based on a criminal background check when doing so would cause a disproportionate impact on any of the Protected Categories. Notwithstanding the foregoing, recently, the Puerto Rico Supreme Court held that an individual's prior criminal conviction does not entitle him to protection from discrimination under the categories of origin or social condition.
An employer can also verify the educational, licensing and work-experience credentials of an employment candidate when such credentials are required qualifications for the job in question or are taken into consideration in assessing candidates. The verification of drivers' licenses and records is lawful for those employees who either must drive as a part of their jobs or are given a company car. Finally, pre-employment physical examinations or requirements for genetic, medical and/or disability-related information will only be permissible when narrowly tailored to determine the fitness required to perform the specific job that is being offered.
US federal law governs Puerto Rico immigration matters. There are no statutory provisions requiring employers to keep a register of foreign workers. The Federal Immigration Reform Control Act of 1986 (IRCA), however, applies in Puerto Rico and requires employers to complete Form I-9 to confirm that hired workers (citizens and non-citizens) are authorised to work in the US. Through the verification process, hired workers must furnish, and their employer verify, documentation that confirms a worker's identity and authorisation for employment in the US. Employers are required under the IRCA to retain Form I-9 for a designated period and make it available for inspection by authorized government officials. Employers must ensure that all foreign workers hired are admitted in the US as permanent residents or under work-related non-immigrant visa classifications.
Although there are no limits on the number of foreign workers a company may have, there is a limit on the number of certain work visas issued by the US government each year. Non-immigrant workers hired for temporary employment in the US under an employment-based visa category are restricted to the activity or reason for which their non-immigrant visa was issued. The length of stay in the US will depend on the specific employment-based visa category under which the foreign worker was authorized for employment in the US and whether the visa category permits extensions of stay.
An individual may seek an immigration classification that permits him/her to live temporarily in the US. The employer, or potential employer, must file a petition for non-immigrant worker before the US Citizenship and Immigration Services on behalf of the beneficiary worker under one of the employment-based visa categories.
The most common non-immigrant visa categories are:
- H1B (workers in a specialty occupation);
- H2B (temporary non-agricultural workers);
- L1A (intra-company transferees in a managerial or executive position); and
- L1B (intra-company transferees in positions requiring specialist knowledge).
In general, Puerto Rico source income paid to a foreign worker will be subject to local income tax withholdings at source and taxes under the US Federal Insurance Contributions Act. Foreign workers are fully protected under local and federal employment laws, including discrimination based on citizenship or immigration status.
Hiring Specified Categories Of Individuals
The employment of minors in Puerto Rico is regulated by Act 230, which establishes the specific requirements and obligations employers must follow to employ minors between 14 years and less than 16 years.
Outsourcing And/Or Sub-Contracting/Temporary Agency Work
Companies in Puerto Rico are free to outsource work, subcontract and/or hire through a temporary employment agency. The LTFA codifies the requirements for determining whether a person is duly contracted as an independent contractor. It states that there is an incontrovertible presumption that the person is an independent contractor when four basic criteria are met and at least three of five additional criteria. To be presumed as contracted as an independent contractor, the contractor must:
- possess or have requested an employer identification number or employer social security number;
- filed income tax returns as an independent business or as self-employed;
- have a written contract to establish the relationship between themselves and the principal; and
- have the licenses or permits required by law to operate the business or provide the agreed services.
In addition to the four criteria mentioned above, the independent contractor must comply with at least three (3) of the following:
- maintain control over how the agreed work will be performed, except for the exercise of the necessary control by the principal to ensure compliance with any legal or contractual obligation;
- maintain control over when the work will be performed, unless there is an agreement with the principal about when the work should be complete, parameters about the schedules to perform the work, and in the case of training, the time in which the training will take place;
- that the independent contractor is not required to work exclusively for the principal, unless the law prohibits it or, if there is an exclusivity agreement, it is only for a limited amount time;
- the contractor is free to hire employees to assist in the rendering of the services; or
- the contractor made an investment in order to provide the services, such as purchasing or renting tools, equipment, or materials, obtained a license or permission from the principal to access the principal's place of work to carry out the agreed work, and rented a space or equipment of the principal to be able to carry out the agreed work.
If these requirements are not met, a “common law test” will be used to determine whether there is a relationship of employment or that of a principal and an independent contractor, unless a special law requires the application of the “economic reality test”. The "common law test" will take into consideration the totality of the circumstances based on criteria like: The principal’s degree of control over the way in which the person is working, the necessary skills to complete the work, the form of compensation, ownership of the equipment and physical facilities, among others.
On the other hand, Act No. 26 of 1992 governs the employment of temporary employees through temporary service companies and establishes the scope of responsibility of the temporary service company and the client company ― which will generally be considered as joint employers― for claims brought by employees under different labour statutes.
It is of the essence to highlight that hiring temporary employees through temporary services agencies may not be used for the following purposes:
- as a method or mechanism for destroying or keeping labour unions out of the workplace;
- to perform any act of discrimination prohibited by law;
- as a means of evading compliance with the Unjust Dismissal Act (Act 80); or
- as a means of breaking, weakening or interrupting strikes or work stoppages.