Puerto Rico’s economy has been in recession for years, and its public utilities are on the verge of defaulting on their debts. Judging from a recent New York Times story, tax increases designed to prevent Puerto Rico from defaulting have crushed many small businesses. Hiring, especially by small businesses, is also discouraged by local labor laws that make it harder to discharge problem employees than in any other jurisdiction in America. (Puerto Rico is not an at-will employment jurisdiction, unlike 49 of the 50 U.S. states. That makes it dramatically harder to fire lackluster employees in Puerto Rico than in the rest of the United States.)
But that didn’t stop its legislature from recently passing a bill to hold employers liable for vaguely-defined workplace “bullying,” further increasing labor costs.
The Governor vetoed it, citing its vague definition of bullying, but his other reason given for vetoing the bill (limits on remedies for private-sector plaintiffs) could actually lead to those provisions of the bill becoming even worse for private-sector employers if it is rewritten and passed once again by the legislature.
PanAm Post reports:
Governor of Puerto Rico Alejandro García Padilla has vetoed legislation proposed by the island’s Senate that would have prohibited workplace harassment and “bullying.” García Padilla did not list his reasons for vetoing the bill, but instead cited reasons why the Puerto Rico Departments of Justice and Labor and Human Resources disagreed with the proposed law.
The Department of Justice considers the definition of “workplace harassment” too vague, and believes implementation of this law would lead to “inconsistencies.” Furthermore, according to the governor, the Department of Labor and Human Resources noticed that “the bill excluded private-sector employees from reinstatement and back pay remedies.”
Governor García Padilla indicated that people who are victims of workplace harassment or bullying can already seek remedy through the Puerto Rico Constitution, collective bargaining agreements, and the Puerto Rico Civil Code.
Despite the veto, supporters of the bill say they will continue lobbying for its approval.
As Puerto Rico libertarian Frank Worley-Lopez notes:
This new bill would redefine illegal “harassment” in such a broad sense that it’s a sure fire way to ensure no new businesses open up on the island. It guarantees Puerto Rico’s economy never recovers from its multi-year recession.
Senate Bill 501 defines “workplace bullying” as: “ill-intended, unwelcome, repetitive conduct, whether it be verbal, written or physical, on behalf of the employer, its supervisors or employees, distinct from the legitimate business interests of the company, that creates a hostile, intimidating, humiliating, and offensive atmosphere, impedes the healthy tenure of the employee in the workplace, that can bring scorn, belittle or professionally destroy the employee, and that threatens his/her constitutionally protected rights, including his/her dignity.”
Among the highlights of the bill, it includes making a host of behaviors illegal including, but not limited, to: “slanderous and harmful expressions about a person, using foul language; hostile and humiliating comments of professional incompetence in the presence of co-workers; unjustified threats of termination stated in the presence of co-workers; frivolous disciplinary actions; and humiliating rejection of work proposals or opinions.”
In other words, if an employee makes an insane suggestion, and the boss rejects it outright in front of other employees, the employer can be sued. For major corporations who spend millions on special training programs for managers and whose pockets may be deep enough to handle such suits, this law might not prevent them from investing or expanding in Puerto Rico. However, for the small business operator and those major companies that are not prepared to handle such liability claims, it is the end of the road.
Small businesses move the economy, although they never get the press that the big players do. Every remaining small business in Puerto Rico will be at risk of bankruptcy if this law is passed. Every single disgruntled employee, who is marginalized at work because they are a bad employee, will take advantage of this law and destroy what little is left of the island’s economy.
Broad anti-bullying legislation can violate the First Amendment’s freedom of speech, as a recent New York Court of Appeals decision shows.
The Puerto Rico anti-bullying legislation contains language similar to that declared unconstitutional on college campuses in the Saxe, DeJohn, and McCauley cases decided by the Third Circuit Court of Appeals, which voided vague “hostile environment” language (in the Saxe and DeJohn cases) and a ban on speech which causes emotional distress (in the McCauley case).
Contrary to the belief of some advocates of broad “bullying” bans, the First Amendment does not allow the government to compel private employers to restrict speech. Indeed, several federal appeals courts have said that although private employers are free to voluntarily restrict employee speech without violating the First Amendment, the government violates the First Amendment when it forces private employers to restrict constitutionally-protected speech. See, e.g., Reuber v. U.S., 750 F.2d 1039 (D.C. Cir. 1985); Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990); Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005).
The term “bullying” has been applied to a variety of speech protected by the First Amendment, such as anti-abortion advocacy, publicly revealing the names of student vandals, a column against gay marriage, and criticism of shoddy progressive academic research.