We address the main changes brought about by the forthcoming Economic Crimes Act in health, occupational safety and other labor matters.
The Economic Crimes Law implies important changes in the Chilean criminal system. In labor matters, companies may be criminally liable for crimes that are directly related to the social order, the pension system and the health of people in the labor context.
With the enactment of the law, those crimes related to workers’ salaries and the individual safety of people, among others, will be considered as economic crimes, when they are committed by someone in the exercise of an office, function or position in a company or for economic benefit.
In this regard, it is relevant to briefly review the crimes that will now be considered as economic crimes. This is easier to do by grouping them into different categories:
Payment and withholding of contributions: The economic crimes law amended Law No. 17,322 which establishes the rules for the judicial collection of contributions, contributions and fines from social security institutions and D.L No. 3,500 which establishes the pension system. In both cases, a sanction is incorporated for the employer who, without the employee’s consent, fails to withhold or pay social security contributions of an employee or declares to pay him/her a taxable or gross income lower than the real one, thus reducing the amount of the contributions. In this way, this new crime would be committed in the case in which the area in charge of the remunerations of the workers of the company diverts part of the funds collected for social security contributions, generating a detriment in the remuneration of the workers.
Individual security of persons: Among the crimes that are contemplated, referring to the freedom and individual security of persons, are the crimes of conditional threats, whether or not the purpose of the evil that is threatened is fulfilled. These are crimes that were already contemplated, but will now be considered as economic crimes. An example of this would be if a company employee – in the context of his or her work on site – makes serious and credible threats to inhabitants of communities neighboring the places where the company has a presence, when they trespass on the company’s private property.
Wages of workers: The law introduces a new crime related to the payment of disproportionate remunerations and lower than the minimum monthly income, seriously abusing the situation of need, inexperience or inability of discernment of the worker. In this sense, if a company hires foreign workers who do not speak Spanish and pays them a salary lower than the legal minimum, in a manifestly disproportionate manner to the salary paid to Chilean workers performing the same activity, it would be committing an economic crime.
Negligence against persons: Those committed by recklessness or culpable negligence (in the case of doctors and pharmacists, for example) are incorporated as economic crimes. Thus, crimes such as homicide, mutilations, castrations, serious and less serious injuries, among others, will be punished. It is important to point out that what we call “crimes against the safety of persons” were already contemplated in the legal system. In this sense, the novelty lies in their new categorization as “economic crimes”.
In this regard, the activity of the risk prevention areas becomes especially relevant for companies, particularly in those cases in which we are dealing with companies that carry out activities such as the use of heavy machinery, construction, mining operations, activities involving the use of hazardous chemicals or other activities that may pose a risk to the integrity of persons, may be more exposed to the imputation of criminal liability.
It is important to mention that, although the law does not incorporate human trafficking as an economic crime, it is expressly included in the catalog for which the legal person may be criminally liable.
Regarding the implications for natural persons, since these are economic crimes, the system for determining the penalties established in the law applies to them, and therefore the special mitigating and aggravating factors must be taken into account. Likewise, the amount of the fine to which individuals and companies will be exposed will depend on the number of days-fines to which they are sentenced.
On the other hand, the incorporation of these offenses will have a significant impact on companies, since they will be more exposed in their capacity as “employer” and will have to pay special attention to preventive controls, for example, of accidents at work.
Likewise, it is of utmost importance that a survey of the activities of the company and its industry be carried out in order to identify the existing controls and implement those that may be missing and necessary. In addition, it is clear that the risk prevention area will be essential to carry out this task, which must be accompanied by a strong training program for the company’s workers.
Finally, the procedures for the payment of salaries and contributions must be reinforced. In particular, it is especially important to strengthen internal communication and coordination between the two areas in the event that the human resources area is not responsible for the payment of remuneration.
For more information on these topics, please contact our Labor and Compliance group:
Jorge Arredondo | Partner Labor Group | jarredondo@az.cl
Francisca Franzani | Director Compliance group | ffranzani@az.cl
Francisca Macchiavello | Associate Compliance Group | fmacchiavello@az.cl
