Layoffs in PR government: 30 days and six alternatives

A layoff is not a dismissal, and the difference protects you

**Section 6.6 of Act 8-2017** opens the governing subsection with a sentence worth reading slowly: layoffs may be decreed in the service **"without constituting a disciplinary action or dismissal"**. That clarification is not politeness; it changes what you can say about yourself afterward and what a future employer can read in your file.

A **dismissal** is a sanction for just cause: something happened and you were penalized. A **layoff** is a separation the statute treats as non-disciplinary. If you are laid off for position elimination and someone says you "got fired", the statute does not see it that way, and your letter should use the correct word. If your notice blends the two ideas, ask for it to be clarified in writing.

The statute recognizes three circumstances where a layoff is warranted, each with its own rules: **elimination of positions for lack of work or funds**, **physical or mental incapacity** to perform the essential functions of the position, and **incapacitation from a work accident** with prolonged treatment under the State Insurance Fund.

The six alternatives to exhaust before laying you off

This is the fact almost nobody knows and the most enforceable in the whole section. When the reason is **elimination of positions for lack of work or funds**, the statute orders that **before decreeing layoffs, all available resources shall be exhausted to avoid them**, and gives the list of actions "such as":

• **Relocation** of staff to positions of **equal or similar classification** in departments, offices or programs where staff is needed.
• **Retraining** of the employee and, through the **mobility** mechanism, moving them to another position **within the same agency, another agency, a municipality, a Public Corporation or a Public-Private Participatory Partnership (APP+P)**, among others, and doing so **before the deadline** for decreeing the layoffs.
• **Use of accrued vacation leave.**
• **Leave without pay until the budget crisis ends**, when the agency decides the shortfall is temporary and does not require permanently eliminating the position. In those cases the same order of precedence set for decreeing layoffs must be observed.
• **Reduction in the work schedule.**
• **Demotion of employees, as a last resort** to avoid layoffs.

How they decide whose turn it is

It is not up to a supervisor's discretion. When the cause is lack of work or funds, **layoffs shall be decreed within the groups of employees whose positions share the same classification title**. That is: the group is defined first by position title, and the comparison happens only within that group.

Within each group, the statute requires weighing three things: **employees' status**, **their productivity as reflected in their evaluations**, and **their seniority in the service**.

The definition of seniority is more generous than people assume, and it is worth money: **to determine seniority, all service rendered in positions of the agencies covered by the System shall be considered**. It is not only your time at your current agency. If you previously worked at another covered agency, that time counts, and if your file does not reflect it, that is a correction to request **before** the list is drawn up, not after.

In addition, each agency is required to **establish a written procedure** for decreeing layoffs, and that procedure **shall be circulated or available for the knowledge of any interested employee**. You can ask for it. You do not need layoffs to be underway to ask, and reading it beforehand beats reading it with the letter in your hand.

Thirty days, and without notice there is no layoff

Each agency's Nominating Authority **shall notify in writing every employee to be laid off no less than thirty (30) days before** the date they will be separated.

And the statute adds the consequence in the next sentence, which is what gives the deadline its force: **"No layoff of employees shall be effective unless the notice requirement is met."** It is not a recommended step: it is the condition of the layoff's validity.

So the first thing to do with that letter is fix two dates: **the notice date** and **the effective date of the layoff**. If there are not thirty days between them, you have a concrete point to raise, in writing and immediately. Keep a copy of the letter and proof of the day you received it.

The thirty days are also your window for the rest: request the agency's written procedure, verify your seniority is complete in your file, and ask in writing which of the six alternatives was exhausted before reaching your name.

The other two causes: incapacity and work accident

The second cause applies when it is determined that the employee is **physically and/or mentally unable to perform the essential functions of their position with or without reasonable accommodation**. Note "with or without reasonable accommodation": the legal question is not whether you can do the job as it stands, but whether you can do it **even with the accommodation**.

The Nominating Authority may **require a medical examination** where there is evidence of performance or safety problems, where other federal laws require it, to determine fitness, and where voluntary examinations are required as part of health programs. And there is a written consequence for refusing: **the employee's refusal to undergo the required medical examination may serve as the basis for a presumption that they are unable** to perform the essential functions of their position.

The third cause is a **work accident**: a layoff is warranted when the employee is incapacitated and **under medical treatment with the State Insurance Fund for a period longer than twelve (12) months from the accident date**. Act 8-2017 refers for that to Article 5-A of Act No. 45 of April 18, 1935, the Workmen's Accident Compensation System Act, the detail of that job-hold rule is there, and it is worth reading in its own source.

Both share a guarantee worth using: **the employee shall be notified of that action with a warning of their right to request an administrative hearing**. If a notice under either of these two causes reaches you without mentioning that right, it is missing what the statute requires it to say.