The Supreme Court of Puerto Rico Clarifies Employer Obligations to Eradicate Sexual Harassment in the Workplace

By Ana B. Rosado-Frontanés and Gabriel Maldonado-González

shutterstock_100537732_sexual_harassment.jpgThe Puerto Rico Supreme Court recently held that, in fulfilling their obligation to prevent, prohibit and eradicate sexual harassment in the workplace, employers may adopt rules and regulations that go beyond the requirements of Law No. 17 of April 22, 1988 ("Law 17"), which prohibits sexual harassment in the workplace. In doing so, the Supreme Court clarified that an employer is not required to establish a prima facie case of sexual harassment under Law 17 to be able to terminate an employee for violating its sexual harassment policy.

In Rosa Maisonet v. Administración de Servicios Médicos, 2015 T.S.P.R. 19, 192 D.P.R. ___ (2015), plaintiff brought a suit against his government agency employer challenging his termination for violating the agency's sexual harassment policy. The termination occurred after another employee, whom the plaintiff supervised, complained that the plaintiff had publicly slapped her buttocks.  Plaintiff had been employed by the governmental agency for over thirty years and had no disciplinary record.  Having conducted an internal investigation and hearing to review the alleged victim's allegations, the employer fired plaintiff, concluding that he had failed to comply with the agency's internal regulations and policies prohibiting sexual harassment. Based on the employer's code of conduct, the discipline for a first violation of the sexual harassment policy could range from a 30-day suspension, as the minimum penalty, to termination from employment, as the maximum penalty. The termination decision was confirmed by the agency after the corresponding administrative process.

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Legally Married Same-Sex Couples are Now Covered by the Family and Medical Leave Act

By Ana B. Rosado-Frontanés and Gabriel Maldonado-González

rainbow_ribbons_gay_marriage.jpgEffective March 27, 2015, the regulatory definition of "spouse" under the Family and Medical Leave Act (FMLA) will cover same-sex married couples, ensuring that these couples receive the rights and protections afforded under the FMLA in any jurisdiction of the United States in which they reside. This definition applies in jurisdictions, like Puerto Rico, where same-sex marriages are not recognized.

Current FMLA regulations provided that whether or not an employee had a spouse was to be determined by the law of the state where the employee resided. Under this so-called "place of residence" rule, same-sex married employees were not permitted to take FMLA leave to take care of their spouse if their state of residence did not recognize same-sex marriage.

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Littler Global Expands to Guatemala

Littler Global member BDS Asesores continues to gain traction in Central America with the opening of an office in Guatemala City, Guatemala.  BDS has combined with one of the country's most highly-regarded labor and employment practitioners, Randolf Castellanos.  Castellanos' career spans nearly 30 years and he is considered one of the leading authorities on labor law in Guatemala.  BDS' move into Guatemala follows closely on the heels of the firm's expansion into the Dominican Republic and Honduras last year.  Leveraging the local experience of our Littler Global member firms is a key element of our global growth strategy and we look forward to working with Randolf to provide additional resources for our multinational employer client base.

The following is a list of countries now represented by Littler Global: Colombia, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Panama, Peru, Puerto Rico and Venezuela.

In addition to the international capabilities provided by our Littler Global member firms, Littler's U.S. offices are comprised of lawyers who have extensive experience handling the labor and employment needs of our global clients.  We have licensed practitioners in Australia, Brazil, Canada, China, the United Kingdom and South Africa, among other countries.

To read the full Press Release, click here.

China: The Amended Workplace Safety Law Has Significant Implications for Employers

By Huan Xiong

Safety First.jpgOn December 1, 2014, the amendments to the Workplace Safety Law ("Law") of the People's Republic of China ("PRC") came into effect.  The amended Law heightens the government's regulation and control over workplace safety and aims to prevent and reduce workplace accidents.  The amended Law is applicable to all businesses engaged in production and operational activities within Chinese territory and carries significant implications for employers with operations in that jurisdiction.  

Below is a summary of the most important changes brought about by the amendment to the Workplace Safety Law with implications for employers:

Administrative Body or Personnel in Charge of Workplace Safety

The Law, originally enacted in 2002, required companies engaged in mining, construction, or the production, selling or storage of hazardous substances, regardless of their size, to establish an administrative body within the company or hire a full-time employee to manage and monitor workplace safety.  The amendment extends this requirement to companies engaged in metal smelting and road transportation, also regardless of their size.

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Venezuela Increases the Minimum Wage

By Daniel Jaime

money bag.jpgVenezuelan President Nicolas Maduro announced at the National Assembly a fifteen per cent (15%) increase in the monthly minimum wage, effective February 1st 2015. This presidential announcement has not yet been published on the Official Gazette.

Minimum Wage Increase

The new minimum wage has been set at 5,622.47 bolivars (VEF 5,622.47) per month, and 187.41 bolivars (VEF 187.41) per day.

Cash Payment

The minimum wage must be paid in cash. No other type of payment in kind can be counted as part of the salary.

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Asking Questions that Relate to the Diversity or Sensitive Personal Information of a Job Applicant or Employee May Be a Breach of Australia's Discrimination and Privacy Laws

By Naomi Sheridan

iStock_000005609395XSmall_employment_job_application.jpgAn administrative tribunal in the Australian state of Queensland recently confirmed that employers with Australian operations must be careful about the personal information they ask job applicants and employees to provide or risk breaching discrimination and privacy laws.

The Willmott v. Woolworths Ltd [2014] QCAT 601 (11 November 2011) case involved the largest grocery store chain in Australia and a member of the public who considered applying for a position with the company. After reviewing the company's recruitment website, the applicant took offense to some of the questions that were listed and filed a complaint with the Anti-Discrimination Commission of Queensland.  

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Mexico Approves an Increase to the Daily Minimum Wage for 2015 for Geographic Zones "A" and "B"

By Mónica Schiaffino and Rodrigo Espíritu Santo

money bag.jpgOn December 18, 2014, the Council of Representatives of Mexico's National Minimum Wage Commission ("Comisión Nacional de los Salarios Mínimos" or "CONASAMI") approved a general increase of 4.2%, to the daily minimum wage for geographic zones "A" and "B".  The wage increase will be effective as of January 1, 2015.

For Zone A, the 4.2% wage increase will raise the daily minimum wage to $70.10 Mexican pesos per day (currently approximately $4.80 USD per day).  Among the geographical areas covered under Zone A are Mexico City (Federal District) and its metropolitan area; the states of Baja California, Baja California Sur; the cities of Acapulco, Guerrero, Ciudad Juarez, Chihuahua, Guadalajara, Jalisco and its suburbs, Monterrey, Nuevo León and its metropolitan area, Hermosillo, Sonora, Matamoros and Reynosa, Tamaulipas and Coatzacoalcos, and Veracruz.

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Puerto Rico: Important Updates and Upcoming Deadlines Concerning Employee Benefits

By Maria Isabel Rey-Cancio and Ana María Bigas-Kennerley

employee benefits2.JPGIn this blog post, we discuss important updates, including upcoming deadlines, with respect to employee benefits impacting plan sponsors. 

Puerto Rico Treasury Announces 2015 Limits on Retirement Plans

The Puerto Rico Department of the Treasury ("PR Treasury"), the equivalent to the Internal Revenue Service (IRS) in the United States, on a yearly basis is required to issue a notification of the limits on retirement plans that will apply in Puerto Rico during the following taxable year.  On December 15, 2014, the PR Treasury published Tax Policy Circular Letter 14-05 ("CL 14-05"), announcing the limits applicable to Puerto Rico for 2015, including the limits that are incorporated into the Puerto Rico Internal Revenue Code ("PR Code") from the U.S. Internal Revenue Code ("US Code"). 

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Brazil Supreme Court Confirms the Constitutionality of Mandatory Break Before Overtime Work for Women

By Renata Neeser

In an arguably regressive decision issued on November 27, 2014, the Superior Federal Court of Brazil (the equivalent of the United States Supreme Court) ruled that it is constitutional to provide certain benefits only to female employees, and in particular, that article 384 of the Brazilian Labor Code was not tacitly revoked by the current Federal Constitution. RE 658312.

The current Federal Constitution enacted in 1988 emphasizes the principle of equality, and expressly asserts gender equality by stating that men and women are equal in rights and obligations within the terms of the Constitution. Article 5, item I of the Federal Constitution. However, the Federal Constitution left a few doors open for correcting existing inequalities and accounting for physical differences between genders, by allowing the possibility of differentiated treatment in certain circumstances. One of these exceptions, for instance, establishes the protection of the labor market for women through specific incentives, as provided by law, and provides different retirement ages for men and women. See, Article 7, item XX and Article 40, §1, item III, (a) and (b) of the Federal Constitution. 

The Brazilian Labor Code, created in 1943, has a chapter entirely dedicated to the protection of women's work. Chapter III of the Consolidated Labor Laws. In 1989, following the new Constitution, Law 7.855/89 expressly revoked many articles of that chapter, in particular those that restricted women from working overtime and at night, which hinder the job opportunities for women. However, the law did not revoke article 384 of that chapter, which determines that employers must provide a 15-minute break to female employees before they start any overtime work.

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Australia: What Employers with Australian Operations Should Know about Extension of Australia's Employment Laws Outside its Exclusive Economic Zone

By: Naomi Sheridan

iStock_000008165511Small_globe_keyboard_computer.jpgAt one time or another, many companies with international operations may look to transfer employees between the company's offices. There are many reasons why companies do so.  A company might have an international secondment or assignment program, for instance, that provides employees with the benefit of gaining experience living and working in a new market.  In other situations, a company may require the skills and experience of a particular employee in a part of the business that the company wants to establish or grow, or a company might simply desire the specific skill-set of a foreign manager or executive.  In each of these situations, there is likely to be consideration of immigration and local employment laws by the employer (often tied to the visa terms), but the impact of the laws in the employee's country of citizenship are often overlooked in these situations.  Failure to consider the applicability of Australian laws when transferring employees outside of Australia can have significant consequences for the employer.   

In particular, there are two aspects of Australia's employment-related laws that should be reviewed:  Australia's Fair Work legislation and the Superannuation Guarantee (compulsory retirement benefit) laws.

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