To our much appreciated clients & friends:

Administering the workplace in a legitimate and rightful manner can often be a challenging endeavor, due to the constant developments of the labor and employment law area. Therefore, we bring you our Fall Newsletter in a new format, where you will find a discussion of the most noteworthy Puerto Rico and Federal decisions. You will also find a discussion of the new Puerto Rico Criminal Code that classifies sexual harassment as a misdemeanor, as well as the new COBRA guidelines requiring employers to overhaul their COBRA notices and procedures. We hope the information contained in this issue is helpful to you and your business.

  
On May 16, 2004, the Department of Labor approved new regulations regarding the Consolidated Omnibus Budget & Reconciliation Act of 1985 (“COBRA”). These new regulations apply to plan years beginning on or after November 26, 2004. (For calendar year plans the effective date is January 1, 2005). The most significant modifications to the regulations are set forth below. to be continue
  

Editor of the Labor & Employment Newsletter

Kayra D. Montañez

 Law No. 162 of June 24, 2004, amended Article 5-A of the State Insurance Fund (“SIF”) Act. This new amendment specifies that the period for requesting reinstatement is 15 days from the date the employee is released from treatment or is authorized to work by the SIF Administrator. The employer is bound by law to reinstate the employee if this request is made within 15 days and not more than 365 days have elapsed.
 
 
 
In this case, IBM, whose employees are not represented by a union, denied three employees’ requests to have a coworker present during investigatory interviews about a former employee’s allegations that they had engaged in harassment. The administrative law judge, relying on the holding of Epilepsy Foundation, 268 F. 3d 1095 (D.C. Cir. 2001), which held that unrepresented employees had a right to have a coworker present during such interviews, found that IBM violated Section 8 (a)(1) of the National Labor Relations Act by denying the employees’ requests for the presence of a co-worker.

Upon review, a Board majority reversed Epilepsy Foundation and held that Weingarten rights apply only to unionized employees. Under Weingarten, 420 N.S. 251(1978) organized employees have the right to have a representative present in a disciplinary interview. Thus, the Board in IBM held that employees who work in a non-unionized workplace are not entitled under Section 7 of the Act to have a coworker in an interview with the employer, even if the affected employee reasonably believes that the meeting might result in discipline.