Remote Workers in Puerto Rico Could Be Exempted From Puerto Rico’s Employment Laws

Quick Hits

• Domiciled employees who are exempt from the overtime requirements of the FLSA, and all nondomiciled employees performing remote work for employers not engaged in trade or business in Puerto Rico, are exempt from local employment laws.
• Nondomiciled employees are exempt from all Puerto Rico employment laws.
• Employers of domiciled FLSA-exempt employees who are classified as executives, administrators, or professionals under the FLSA and regulations of the Puerto Rico Department of Labor and Human Resources must provide at least the same benefits under private plans as the workers’ compensation, short-term nonoccupational benefits, and employee driver’s insurance statutory minimum benefits under Puerto Rico law, or the statutory benefits law will be applicable. Unemployment insurance for domiciled exempt remote employees in Puerto Rico will be applicable unless the employee is eligible to receive unemployment benefits in another jurisdiction.
• Nonexempt employees domiciled in Puerto Rico will be subject to all Puerto Rico employment laws, benefits, and insurance requirements.

Law 27-2024

In an attempt to address the uncertainties in the legal landscape resulting from employees working remotely, Puerto Rico enacted Law 27-2024 which exempts certain employees and employers from being subject to Puerto Rico’s employment obligations, and allows them to govern the employment relationship by the laws of another state.

Under the statute, Puerto Rico employment laws (including statutory rights, workers’ compensation, and unemployment and short-term disability insurance) will be inapplicable to nondomiciled employees and their employers not engaged in trade or business in Puerto Rico when the employee relocates to Puerto Rico to perform remote work. The employment relationship will be governed by the employment contract and, if there is no contract, by the laws of the state where the employee is domiciled.

For employees who are exempt from the overtime requirements of the Fair Labor Standards Act (FLSA)—e.g., executives, administrators, and professionals—and who are domiciled in Puerto Rico, the employment relationship will be governed by the employment agreement between the parties and not under Puerto Rico law, unless the parties agree to make Puerto Rico law applicable. For these FLSA-exempt employees domiciled in Puerto Rico, workers’ compensation, short-term disability and employee driver’s insurance under Puerto Rico law will be applicable only if the employer fails to provide under a private plan at least the minimum statutory benefits granted under each statute; and unemployment insurance will be applicable unless the employee is eligible for unemployment benefits in another jurisdiction. Nonexempt employees domiciled in Puerto Rico will be subject to all Puerto Rico employment laws, benefits, and insurance requirements.

An employer is not engaged in trade or business in Puerto Rico when:

• The employer does not have an office or a fixed place of business in Puerto Rico during the taxable year.
• The employer does not have an “economic nexus” with Puerto Rico during the taxable year.

• The employer is not considered to be a “merchant” under the sales and use tax provisions of the Puerto Rico Internal Revenue Code (Section 4010.01).
• The employee working remotely is not an officer, director, or controlling shareholder of the employer.
• The services performed by the employee are rendered for the benefit of clients or businesses of the employer that have no nexus with Puerto Rico.
• The employer reports the income paid to the employee working remotely on an Internal Revenue Service Form W-2 or Form 449R-2/W-2PR.

Whether an employee is domiciled in Puerto Rico is a determination that takes into account both (i) where the employee resides and (ii) the employee’s intention to reside in that jurisdiction indefinitely.

Ogletree Deakins’ Cross-Border Practice Group will continue to monitor developments and will provide updates on the Cross-Border and Employment Law blogs as additional information becomes available.

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