Protection for Whistleblowers and Witnesses of Corruption Acts

New Costa Rica Law Aims to Protect Whistleblowers and Witnesses of Corruption from Workplace Retaliation

Under Law No. 10437, published in La Gaceta No. 24 on February 8th of this year, a new law was approved with the aim of both whistleblowers and witnesses in corruption cases from any retaliations they may face at work.

Before delving into the specifics, it’s important to understand the context in which this law was created. As a country, we have regressed a decade in Transparency International’s 2022 Corruption Perceptions Index (CPI), scoring 54, which is the second worst in our history and represents a drop of nine places in this ranking.

According to the Executive Director of Costa Rica Íntegra, Mr. Guillermo Zeledón, there are several corruption cases in the country with ineffective responses and sanctions, among which he highlighted: the Trocha, Chinese Cement, Cochinilla, Aztecazo, and Diamante cases, which do nothing to help the country’s image.

Undoubtedly, this law addresses a national crisis, and an urgent need to detect and resolve the country’s sad reality. The workplace could be an excellent source of complaints, but only if employees did not feel their job future was at risk for speaking out. This is what the law that motivates this article intends to do, create special protection for people who report corruption acts, as we will explain in the following paragraphs.

This new law applies to both the public and private sectors, thus covering any worker who reports an act of corruption, whether verbally or in writing.

What should we understand as an act of corruption? The law is quite broad in this sense, with a clear intention to cover requirements, offerings, taking advantage of, participation in, or carrying out an illicit act in the exercise of public or private functions as applicable.

The million-dollar question is, how to protect the worker from workplace retaliation? The law, in its articles 5 and 8, creates new special protection status for whistleblowers and witnesses. For each case, the right to be protected by this status will be subject to the requirements established in the law to enjoy this protection.

What would the whistleblower and/or witness be protected from if they meet the requirements of this law for special protection status? From any type of sanction that originates from having filed a complaint and/or being a witness who has offered testimony or made a declaration.

How long will the worker enjoy this special protection? From the moment the complaint is filed or from the moment when the witness is incorporated into the procedure, and can be extended until a final decision in the case is arrived at.

This law also creates a summary procedure for addressing retaliation claims that a worker may have been subjected to, due to filing a complaint or participating as a witness in investigations of alleged acts of corruption. Additionally, it provides free legal counseling – funded by the State – to those protected under this law.

What else should I know as an employer? That the burden of proof regarding the demonstration of justification, objectivity, rationality, and proportionality of the measures taken with a worker covered by this status is yours.

Also, if you are a private employer with more than 50 workers, you are required to create an internal complaint channel. This channel must be well identified, easily accessible, offer the possibility of anonymous reporting, and available through electronic means.

Hopefully, this law will facilitate the effective reporting of acts of corruption and prompt many who hold public positions seeking undue personal benefit for themselves or others, to rethink their conduct.

Marcela Acosta
Partner
Quatro Legal