We invite you to read the column written by our partner, Jorge Arredondo, on governance and the role of the employer with the Karin Law.
On August 1, Law 21.643 (known as “Karin Law”) will enter into force, which will undoubtedly imply a change in the dynamics of labor relations. The above, since it will entail the administration, management and investigation of alleged acts of labor or sexual harassment when both the complainant and the accused maintain their status as workers and their contractual ties in force.
This requires the adoption of strict standards to provide guarantees to those involved regarding the reliability of the reporting channel, the safeguards during the period in which the investigation is carried out and the suitability and impartiality of the person conducting the process. For this reason, the law is structured around two focuses: prevention on the one hand, and investigation on the other.
However, it must be clear that, once a complaint has been filed with an employer, it is the employer who is responsible and accountable for the proper conduct of the investigation process. There is no co-management in the development of the investigation or the search for satisfaction of those involved in its process. Moreover, it is possible that these actions generate discomfort. Therefore, it is not appropriate to assume – as the regulations governing this process do – that when the complaint is filed against a “managerial” position, the investigation should be carried out by the Labor Directorate.
To be more emphatic: when the employer receives a complaint, it should not require the consent of the complainant to decide how to carry out the mandate that the law has entrusted only to the employer. In this sense, we do not agree with the regulation of the Regulation (article 12) that the complainant, when filing his complaint with the company, may request or ask that it be referred to the Labor Inspectorate for its development. We insist that the complaint initiates an investigative instance that disregards the will of the person who made the complaint, since what is sought is to clarify the occurrence of a labor infraction.
In this context, the corporate governance of the company will be in charge of monitoring, deciding and following up on the information and background brought about by an internal investigation process. This is because the law does not establish the way in which this must be done, leaving this aspect to the free determination of each employer. Undoubtedly, living with an internal conflict, keeping in force their labor relations both the complainant and the accused, while an investigation is being carried out, is not an easy process. Even more so when the employer then has to make a decision that impacts on the employment history of one of his employees.
In this new scenario, it is extremely important that companies adapt their institutional framework to implement governance and management of these processes, allowing them, on the one hand, to adopt immediate measures to protect those involved and, on the other hand, to monitor the subsequent impact that these processes may have on the work environment, productivity, professional growth projection, and an environment that cares for workers.
Column written by Jorge Arredondo | Partner
