Can citizens take legal action against the Labor Dept. for unemployment insurance payment delays?

By Pedro Correa Henry

Twitter: @PCorreaHenry

Special to The Star

More than six months have gone by since the COVID-19 pandemic began in Puerto Rico and, even though the Legislature appointed former Deputy Justice Secretary Carlos Rivera Santiago as the new Labor and Human Resources (DTRH by its Spanish initials) secretary after former Secretary Briseida Torres resigned amid thousands of unemployed workers not receiving any financial aid, many citizens were still complaining Tuesday that they have not yet received any compensation from the agency.

Coran Li Morales, a former Commonwealth of Puerto Rico Employees Association worker, told the Star that she is still waiting for the agency to either confirm or reject her case. The 39-year-old said she received two phone calls in March from a DTRH official who told her that her case was being reconsidered even after she had resigned, and the agency was requesting documents that her employer already provided so as to remove points of controversy from her case and send her an eligibility letter.

“I am still waiting! There’s still an unsolved point of controversy according to the website and they have yet to reply, even if it is to reject my case. They called, they requested documents, even a pay stub from my earlier job to take into account,” Morales said. “If it wasn’t for me pushing a family business in the midst of this mess, I would be dressing up and complaining at their offices. It is very frustrating.”

Natalia Vázquez, who works part-time as a barista for a local coffee shop in Caguas, said she has yet to receive a response from DTRH on her unemployment case after she submitted it in June at a drive-thru station the agency installed at Héctor Solá Bezárez Coliseum in the aforementioned municipality. The 25-year-old freelance video producer added that she has been able to survive the pandemic with little money as she still lives with her parents and gets support from them. She also said that she is capable of giving her work hours to other colleagues as she is aware that many are struggling to make ends meet.

“The enterprise that I work for has been fortunate enough, as there are many others that have not been able to reponen. However, as essential employees, we have to spend more money while going to work; you have to spend money on food and gas,” Vázquez said. “At the beginning of the pandemic, I had to drive to work for six to eight hours a week. I spent more than I earn, but I couldn’t resign because, if you resign, you lose the right to [receive] unemployment assistance.”

Unemployment in Puerto Rico has also separated families when members need to provide for their loved ones. Henry Berríos, who is married to a radio producer and has a soon to be three-year-old son, told the Star that he had to move to Texas in order to provide for his family because he was laid off in March from his job as a barista in the San Juan metropolitan area. Although the 31-year-old said things have been going well enough for him in Texas, the unemployment aid would come in handy.

“I received three letters from DTHR confirming that I was eligible to claim unemployment, but as I submitted information, the website told me to continue the process via email, which I couldn’t complete because the agency’s email inbox was full to its capacity. No one was able to help me, and to this day I have been unable to claim one single dollar,” Berríos said. “I even got a letter from them saying that I was eligible for PUA [Pandemic Unemployment Assistance], even though I didn’t have an independent contractor letter or anything like that.”

Meanwhile, a citizen who will remain nameless and genderless to conceal their identity said he/she has been requesting unemployment assistance since March. The former college professor resigned out of fear for his/her own safety living in the southeastern town of Juana Díaz due to the earthquakes that began in late 2019. He/she told the Star that he/she was eligible for financial aid, but the case had a point of controversy given that he/she had resigned from the job.

“I sent a form in which I explained why I had to resign, and I said it was because of the earlier tremors that affected my residence and I didn’t feel safe living in the city -- I was scared that the apartment would collapse on top of me. Henceforth, I had to move in with my daughter in Missouri,” he/she said. “They later asked for pictures as evidence, which I never knew was a requirement because others who I know of were able to get unemployment assistance even after they resigned from their jobs. Although I live with my daughter, I expect an answer from them because I have to cover my bills for the medicine [I need] to address my health conditions.”

Citizens can file a writ of mandamus against DTRH for institutional negligence

Regarding if citizens were able to take legal action against the DTRH for institutional negligence, private practice attorney Javier Ramos Rodríguez said a writ of mandamus would be the way to go as this extraordinary petition has the purpose of requesting that a court of law demand a public entity to comply with a ministerial duty; according to the University of Puerto Rico-Humacao student attorney, a ministerial duty refers to an official duty in which a government agency has no room for discretion.

“If you could establish that paying for the [unemployment] insurance is a ministerial duty that is not being fulfilled, a court of law could issue a mandamus and order a contempt penalty against the agency so they fulfill their duty,” Ramos Rodríguez said. “Now, this could bring up a defense as to what is possible and what is not; we know that the Puerto Rican government has plenty of difficulties and to fulfill requires that you can fulfill. The overarching question, which is more of a pragmatic matter than a legal matter, is if the department is capable of managing all of this with their information system and their actual resources.”

Labor attorney Jaime Sanabria also said that citizens can file a writ of mandamus because the Labor secretary and his associates, who are public servants of the Commonwealth of Puerto Rico, have the ministerial duty to safeguard workers’ interests, such as paying unemployment benefits to citizens recognized by the law. Likewise, Sanabria said citizens who have not received their unemployment benefits could file a legal claim for damages against the agency.

“As long as an official’s measures, whether direct or indirect, affect the person’s rights to have a livelihood, to maintain their families, to have food to eat, to have money available to take care of their health and that of their loved ones, those citizens have the right to claim damages because one of the most basic rights is being violated, the right to have their human dignity and personal integrity respected,, Sanabria said.

When the Star asked if the reason such an action has not been taken against the agency is a lack of information, Sanabria said that more than that it was a lack of trust in the public institutions of the commonwealth, a lack of income, and that attorneys have yet to show interest in a situation of this sort, as it would require for them to work pro bono or on a contingency basis.

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