The Three Step Audit Before Discharging an Employee

Firing an employee in Puerto Rico has legal consequences.  A discharge may be challenged as wrongful, discriminatory, or retaliatory, or as a violation of another statute altogether. Just cause under Act 80 is only the starting point of the analysis. An employer must also account for the local and federal employment statutes that operate independently of Act 80 and impose separate liability. Fines can be steep and in some cases may require job reinstatement. Before discharging an employee, work through the following. This self-audit may prevent a wrongful discharge claim later.

Why are you are terminating the worker?

If it’s for disciplinary reasons or violation of some policy, ask yourself:

1. Can you prove that the act was committed by the worker?
2. Is the disciplinary measure fair (and consistently applied to others)?
3. Regardless of (1) and (2) is  the worker  protected by a specific law such as age, sex, disability, workers compensation, pregnancy, color, political views, religion, retaliation and if he/she is,  can you show  that the condition protected plays no role in the decision to terminate?

Here are some key questions you need address:

• Is the applicable policy or rule breached in  written form?
• Have you provided  the worker with a copy of the policy?
• Do you have evidence of having provided a copy (such as a signed acknowledgment form)?
• Is the violation contained within the rule or policy? What is the penalty if any?
• Do you have a specific disciplinary process? Are you follow it?
• How serious is the  breach of conduct? Is it a first offense? A discharge for a first offense is unjustified unless it’s of a serious nature and puts the business at risk.
• Have you calculated the amount of the indemnity under Puerto Rico’s Wrongful Discharge Act No. 80 ? It is a wise idea to know what is your legal exposure under the law in case you are not able to prevail in a wrongful discharge claim.

If you are discharging a worker for performance, the process is similar. How clear were the objectives and goals? Were they reasonable? Can you show that the worker was aware of them?  Are they in written form?  Was the employee given ample opportunity and support to reach these goals?

Is the Worker protected by a specific law?

Puerto Rico does not recognize at-will employment. An employer may terminate an employee hired for an indefinite period, but absent just cause it owes statutory severance — the mesada — under Act 80. Paying the mesada, however, does not resolve everything. Separate statutes prohibit discharge for specific reasons altogether, and those claims survive independently of Act 80. Examples include termination based on age, color, gender, national origin, religious belief, disability, retaliation, or an employee’s use of a protected leave. A discharge supported by just cause is often an adequate defense, but an initial analysis of whether any of these statutes applies is a wise precaution. Typical issues to consider include::

• Is the worker of a foreign nationality, black, impaired, and professes a particular religion?
• Is the worker currently under a particular leave?
• Is the worker older than most? Older than 40?
• Is the worker the only woman? Has she been harassed?
• Is the worker disabled or perceived to be disabled?
• Is the worker a victim or perceived to be a victim of domestic violence?
• Is the worker currently under a protected leave such as pregnancy, Family-Medical, jury, military or workers compensation?
• Is there any protected condition that the worker may invoke to sidetrack the case from a simple discharge to a major discrimination claim?

How are you handling termination?

No statute dictates how a discharge should be carried out, and over the years I have seen every approach imaginable — from structured exit interviews and outplacement support to a blunt “you’re fired.” There is no guarantee, but in my experience the more diplomacy an employer uses, the less likely it is to be sued.

Before you terminate

Most wrongful discharge claims are decided by what the employer did in the weeks  or months before the discharge, not by what it argues afterward. If you are weighing a termination, a restructuring, or a separation involving a sensitive employee, the time to assess exposure is now.

Fleming Law Offices represents Puerto Rico employers on internal investigations, discipline, performance management, and termination decisions. We defend wrongful discharge, retaliation, harassment, reasonable accomodation and discrimination claims.

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