By: El Mostrador

Labor lawyer at Apparcel Uriarte Abogados, Fernando Carreño, notes that there is a lot of concern that now every minor situation could be considered harassment, which is not true. There is fear that some workers may want to take advantage of this.

From August 1, 2024, law N°21.643, which establishes concrete measures for the prevention and punishment of workplace harassment, sexual harassment, and workplace violence, will be fully in force. This law represents a significant advancement in the protection of fundamental workers’ rights and imposes specific obligations on employers regarding the prevention and response to these situations.

Karin Law: How Does This Affect Companies and What Are the Legal Implications?

This protocol is mandatory for companies with more than one employee, and not applying it implies fines.

Karin Law Operates in Two Phases

One is before the act of workplace harassment, sexual harassment, or workplace violence, where it establishes a new obligation: the implementation of a “prevention protocol” that must be issued by the accident management organization to which the employers are affiliated (for example, ACHS, Mutual de Seguridad, etc.) and must be incorporated into the Internal Order, Hygiene, and Safety Regulations, either within it or as an annex to it.

Additionally, employers must inform semi-annually about the channels they maintain for receiving complaints regarding non-compliance related to the prevention, investigation, and punishment of sexual harassment, workplace harassment, and workplace violence, as well as the state instances for reporting any non-compliance (complaints to the Labor Inspection).

Then, when the worker has alleged an act of workplace harassment, sexual harassment, or workplace violence, the employer is obliged to maintain an investigation procedure for any of these three cases (it can be the same procedure for all three), where, along with certain procedural specifications, the principles of confidentiality, impartiality, promptness, and gender perspective must be followed.

“We must highlight that the law created a new figure of “workplace violence,” which specifically mentions acts carried out by third parties unrelated to the labor relationship, such as clients, suppliers, users, among others, that affect workers due to the functions they perform in the company,” says Fernando Carreño, an associate lawyer at Apparcel Uriarte. “There is a lot of concern in the environment that now every minor situation could be considered harassment, which is not true. Nevertheless, certainly, there will be workers who want to take advantage of this, claiming either administratively or judicially for specific low-entity acts, but we estimate that it will not be in the quantity that some estimate,” adds the professional. The expert explains that the main novelties in the investigation of sexual harassment, workplace harassment, and workplace violence are related to the fact that the law now concretely expresses that this investigation must be in writing, recording all actions, and must always follow the principles of confidentiality, impartiality, promptness, and gender perspective:

Confidentiality: Only the involved parties and those conducting the investigation should have access to it, and the content of the procedure should not be exposed to anyone else due to the sensitivity and seriousness of the facts it may encompass, and the honor of those involved could be tarnished.

Impartiality: Beyond the common meaning of the word, when the investigation is conducted by the employer, a worker with training in harassment, gender, or fundamental rights issues should preferably be appointed as the executor. It can also be carried out by a third person outside the company, but with experience, knowledge, and suitability in these matters.

Promptness: The employer must ensure that the process advances as quickly as possible while respecting the deadlines in which the parties can properly defend themselves. This principle is directly concretized when the law expressly states that, in any case, the investigation must be concluded within 30 days. Additionally, the result of the investigation and the proposed sanctions, if any, must be reported to the respective Labor Inspection, which, if it does not issue a decision within 30 days, will be automatically approved. Then, the approved sanctions must be applied within a maximum of 15 days.

Gender Perspective: Refers to the impossibility of justification based on stereotypes, both gender and other kinds, such as arguing a conclusion based on the notion that men are “protective” and women “need to be protected.” The law prohibits the use of such presumptions as arguments for conclusions, understanding men and women on an equal footing. “It is also important to mention that the law expressly establishes the possibility for the employer to take provisional measures ex officio or at the request of the affected party, such as the separation of physical spaces while the investigation lasts, among other similar situations. The accusation and the factual reality of the functions they perform in the company must be considered,” says Carreño.

Finally, it should be noted that the investigation can be conducted by the Labor Directorate if the employer does not do it themselves. If an employer does not comply with these provisions of the Karin Law, they may be subject to fines by the Labor Inspection, the amount of which will depend on the number of workers the company has. The document called “penalty typifier” published by the Labor Directorate must be reviewed to know how many or which fines may apply, depending on the non-compliance the employer is committing. Moreover, not having an investigation procedure or if it does not meet the minimum standards established, could open the door for workers to invoke indirect dismissal, ending the employment contract due to the company’s non-compliance. There will also be the possibility that some worker may claim that their fundamental rights are being violated. For more information or advice on this topic, you can consult with expert lawyers on the subject at https://apparcel.cl/

Link to the news: https://www.elmostrador.cl/braga/2024/07/24/experto-sobre-ley-karin-denuncias-deben-ser-confidenciales-y-respetar-la-perspectiva-de-genero/