The present Law 21.643, which amends the Labor Code and other legal frameworks, seeks to improve the mechanisms for the prevention, investigation and punishment of labor harassment in companies, in addition to establishing psychological interventions for the victims during the entire investigation process. Likewise, it expressly determines definitions for the following concepts: sexual harassment, labor harassment and violence at work, in addition to enshrining that labor relations must be based on a treatment free of violence, compatible with the dignity of persons and with a gender perspective, in this sense, its object deals extensively with the promotion of equality and the eradication of discrimination in the workplace.
Legal Concepts
- Sexual harassment: includes actions of sexual solicitation, inappropriately and by any means, without the consent of the counterpart. These attitudes represent a threat to the work situation or employment opportunity.
- Harassment at work: it means a single or repeated conduct, which institutes an aggression or harassment by the employer or worker, which translates into a conduct aimed at humiliating, undermining or mistreating the work environment. It also means a threat to the work situation or employment opportunity.
- Violence in the workplace: this refers to conduct that affects male and female workers during the provision of services by clients, suppliers or users, among others. The above expressly reaffirms that it is the employer who is obliged to adopt all measures to eradicate such conduct, regardless of the workers under its dependence, and must incorporate procedures aimed at relations between subcontractors, companies that provide services in the same facilities, among others. Consequently, this terminology implies extending the margin of responsibility that weighs on the employer with respect to the conduct of third parties and the duty of care imposed by Article 184 of the Labor Code, which refers to the effective protection of the life and health of workers.
Regulatory purpose
Establish as a way to improve prevention mechanisms in various instances within an organization/company, the mandatory implementation of a protocol for the prevention of harassment and violence in the workplace with publicity at the time of signing the employment contract by the worker, informing and training workers about the risks and responsibilities, establishing protection measures and measures to safeguard privacy and honor in the face of sexual harassment, workplace harassment and workplace violence, providing psychological support to victims from the moment of the complaint and, finally, shortening the applicable procedure timeframes.
Amendments to the Labour Code
- Companies with 10 or more employees, including those in the public sector, must consider in their internal regulations the implementation of a protocol for the prevention of harassment, sexual harassment and violence in the workplace. For those organizations with less than 10 employees, which are not required to develop such internal regulations, it is mandatory to inform their employees at the time of signing the employment contract about the investigation and sanction procedure to be applied with respect to the occurrence of certain behaviors. In any case, all companies, regardless of their size, must provide prevention protocols.
- The gender perspective is legally enshrined in labor relations, and the employer must adopt all measures aimed at promoting equality and eradicating discrimination based on gender. This incorporation not only extends to matters of harassment and violence, but also to others within the organization/company, such as remuneration or working conditions.
- The Karin law modifies the concept of labor harassment, indicating that it is comprised by conducts with a determined result and purpose, whose practice may be unique or reiterated against workers.
- It establishes as a right of the workers that the employer implements measures to prevent, investigate and sanction harassment and violence behaviors.
- Specific obligations are specified for employers:
- To elaborate and make available a protocol for the prevention of sexual harassment, labor harassment and violence at work. The protocol will be prepared through the administrative bodies of Law No. 16,744 and will contain, at least, the identification of hazards and psychosocial risk assessments; measures for the prevention and control of such risks; information and training measures for workers; measures for the prevention of sexual harassment, workplace harassment and violence in the workplace; measures of protection for all those involved.
- Inform workers every six months of the channels maintained in the company for receiving complaints about non-compliances related to the prevention, investigation and punishment of sexual and workplace harassment and violence in the workplace. Also, to inform of the state instances to denounce any breach of labor regulations and to access social security benefits.
New requirements regarding the applicable procedure
- Principles: it is expressly stated that it must be subject to the principles of confidentiality, impartiality, celerity and gender perspective.
- Verbal complaint: the complaint may be made in writing or verbally. In the latter case, the person receiving the complaint must draw up a report, which must be signed by the complainant and a copy must be given to him/her.
- Safeguard measures within the framework of the investigation: safeguard measures must be taken immediately. This will result in the need to have agile internal procedures as soon as the complaint is received.
- If the complaint is made to the Labor Inspectorate, you may request protective measures, which must be taken within a maximum of 2 working days. The measures must be taken immediately once the employer has been notified.
- Early psychological care as a safeguard measure: psychological care regardless of the existence of an ongoing investigation procedure, through the programs provided by the respective administrative agency of Law No. 16,744.
- Reduction of the term for referring the complaint to the Labor Inspection: from 5 to 3 days, the possibility of referring the case to the Labor Inspection is maintained.
- Training: investigations should preferably be carried out by a worker with training in harassment, gender or fundamental rights.
- Remittance of documents and information: the conclusions of the investigation must be sent to the Labor Inspectorate, which will have a period of 30 days to make a decision. If this period expires without a decision, the conclusions of the report will be considered valid.
- Deadline: Investigations of harassment, sexual harassment or violence in the workplace must be concluded within 30 days.
- Duty to forward the background to the Public Prosecutor’s Office if the facts constitute a crime: the employer is obliged to forward the background to the Public Prosecutor’s Office within 48 hours, and to provide information to the complainant regarding the reporting channels for this type of facts.
- Evidentiary burden: if, as a result of the investigation, the reported worker is dismissed, the burden is imposed on him/her to provide in court the necessary evidence to disprove the facts or background information contained in the report of the company or the Inspectorate.
In short, the practical implications for employers are the need to develop a protocol and update internal procedures for the prevention, investigation and punishment of harassment and violence within an organization/company, which must be adjusted as quickly and clearly as possible in order to adopt measures in time, and there must be a collective effort to provide training on the reaction of managers and the work environment in the event of a complaint.