Retaliation for speaking up: Act 115 and its three years

This is the law that protects the employee who speaks. Its full name mentions legislative, administrative and judicial forums, which is why many people believe it only covers someone testifying in court or before an agency. Article 2’s text goes considerably further: it also covers testimony, statements or information you offer or attempt to offer in the company’s established internal proceedings, or before any employee or representative in a position of authority. Formally complaining to human resources, writing to your supervisor, answering an internal investigation: that is protected activity under this law. And it protects the attempt equally: the law says "offers or attempts to offer".

Employee is any person who renders services in exchange for wages or any kind of remuneration, under an oral, written, express or implied contract, including public carriers under Act 109-1962. The definition of employer is among the broadest in Puerto Rico labor law: it means all employers alike, public or private, public corporations, cargo owners and transport brokers, or any other denomination existing now or created in the future; every natural or juridical person of any kind, including the Government of Puerto Rico, its three branches, instrumentalities and public corporations, municipal governments and their instrumentalities or municipal corporations, for profit or not, and their agents and supervisors. It also includes labor organizations and other private organizations, groups or associations in which employees participate to deal with employers about terms and conditions of employment, as well as employment agencies.

• Having offered, or attempted to offer, verbally or in writing, testimony, statements or information before a legislative, administrative or judicial forum in Puerto Rico, in the company’s internal proceedings, or before any employee or representative in a position of authority.Verified against the official source
• That those statements not be defamatory nor constitute disclosure of privileged information established by law.Verified against the official source
• Bringing the civil action within three (3) years of the date the violation occurred.Verified against the official source

• A record of the protected activity and its date: the email, the internal complaint, the subpoena, the statement. The prima facie case is built by proving you engaged in the protected activity and were subsequently dismissed, threatened or discriminated against.
• A record of the adverse action and its date: the dismissal letter, the shift change, the transfer, the cut in compensation or benefits. The article covers terms, conditions, compensation, location, benefits and privileges of employment.

1. 1

   Step 1: Identify the protected activity

   A court is not needed. The law protects testimony, statements or information you offer or attempt to offer, verbally or in writing, before a legislative, administrative or judicial forum in Puerto Rico, and also in the company’s established internal proceedings or before any employee or representative in a position of authority. Save the date and the record: it is the first element of the case.

2. 2

   Step 2: Check it does not fall into the two exceptions

   The protection does not cover defamatory statements or the disclosure of privileged information established by law. Those are the only two content-based outs the text leaves the employer, which is why it is worth checking them before claiming.

3. 3

   Step 3: Build the prima facie case

   Article 2(c) describes the whole scheme. You may prove the violation by direct or circumstantial evidence. You may also establish a prima facie case by proving two things: that you engaged in an activity protected by this law, and that you were subsequently dismissed, threatened or discriminated against in your employment. Once that is established, the burden shifts: the employer must allege and substantiate a legitimate, non-discriminatory reason for the dismissal. And if the employer alleges and substantiates it, it falls to you to show that reason was a mere pretext.

4. 4

   Step 4: Count three years, not one

   This is the law’s most useful quirk and the most overlooked: the civil action is brought within three (3) years of the date the violation occurred. Almost every Puerto Rico labor statute gives one year, so an employee who assumes the year may abandon a claim that is still alive.

5. 5

   Step 5: Ask for everything the law lists

   The law lets you seek compensation for actual damages suffered, mental anguish, reinstatement, lost wages, benefits and attorney’s fees. And on two of those items there is a multiplier: the employer’s liability as to damages and lost wages shall be double the amount determined to have been caused by the violation.

The law creates a civil action against the employer, so the route is court. The Department of Labor and Human Resources is the country’s labor agency and receives employee complaints, and if your retaliation claim accompanies another — discrimination, workplace harassment, sexual harassment, a wage claim — they are worth evaluating together because each has its own term and its own forum. Act 90-2020 on workplace harassment expressly refers to this law to protect anyone who reports harassment.

• Believing it only protects someone testifying in court: it also covers the company’s internal proceedings.
• Assuming a one-year term: this law gives three (3) years from the date of the violation.
• Thinking the statement must actually have been delivered: the law also protects the attempt.
• Claiming only the dismissal: the article covers threats and discrimination in terms, conditions, compensation, location, benefits and privileges.
• Not asking for double damages and lost wages, which is what the law sets.
• Forgetting to save the date of the protected activity, the first element of the prima facie case.
• Not checking whether what was said could be defamatory or disclose privileged information, the text’s two exceptions.

These are the government pages this guide is based on.

• Departamento del Trabajo y Recursos Humanos (DTRH)

  Departamento del Trabajo

  bvirtualogp.pr.gov

• Department of Labor and Human Resources

  DTRH

  www.trabajo.pr.gov