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Latin America: Quick guide to workplace investigations in LATAM

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Why talk about this today?

Mainly during the pandemic, the use of technological resources for performing a job has significantly grown. As a result, the access to such resources in the context of internal investigations has become almost a must. This triggers relevant concerns from a data privacy (e.g. whether the access to devices is permitted and to what extent) and a labor perspective (e.g. which are the limits of the employers power of supervision).

What are the risks?

LATAM jurisdictions have no specific labor regulations on internal investigations. On the other hand, privacy rules are very restrictive. This scenario may give room to uncertainty as to how conduct an internal investigation. LATAM authorities (and general employment laws) are very protective when it comes to the protection of employees’ rights and the protection of data subjects rights. In that sense, it is of the outmost importance to always have the support of local lawyers that can guarantee that the investigation is being done in accordance with both legal framework and best practices.

Why is this a hot topic in Latin America?

Increasingly the authorities are starting to give credit to compliance programs and, as a consequence, to internal investigations as a suitable mechanism for an early detection and prevention of infringements. It is important to have a robust internal investigation systems inside the company so that, in the event of an infringement, it can serve to seek for a more lenient decision from authorities.

As a way of example, the Peruvian Competition Authority (INDECOPI, by its Spanish acronym) has enacted guidelines for the implementation of compliance program, which refers to the importance of whistleblowers hotlines (and consequently, of internal investigations). From a labor perspective, reports must be as accurate and detailed as possible, so that they can be later useful in case of a dispute.

This is a quick guide to workplace investigations in Latin America that covers both the labor and compliance perspectives throughout seven jurisdictions: Argentina, Chile, Colombia, Mexico, Peru, Venezuela, and through a strategic cooperation agreement with Trench Rossi Watanabe in Brazil*

Guide to Workplace Investigations in LATAM

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Author

Jonathan Edward Adams heads Baker McKenzie's compliance team in Mexico and is the Global Compliance Practice Group's regional coordinator for Latin America. He has extensive experience in corporate, pharmaceutical and compliance law, having worked seven years in the US and 13 in Mexico and Central America. Jonathan combines a US-based perspective on legal implementation and compliance issues with years of on-the-ground experience in Latin America. He works closely with client commercial teams to implement innovative solutions to legal challenges. He is admitted to practice law in Mexico and two US states.

Author

Vanina Caniza is a partner in Baker McKenzie’s Buenos Aires office and the Global Chair of the Healthcare & Life Sciences Group. She advises a range of multinational, Latin America and Argentine clients in a variety of corporate and commercial law matters, with extensive experience in corporate compliance, commercial agreements, mergers & acquisitions and regulatory advice. Vanina has extensive knowledge in the pharmaceutical, biotech and medical device sectors. She completed postgraduate courses on Biotechnology at Universidad Torcuato di Tella (Buenos Aires) and on Health Law at Universidad de Buenos Aires. She was previously the Latin America Leader of the Healthcare & Life Sciences Group and also sits on the Steering Committee of the Firm’s Latin America Corporate Compliance Group. She is currently a professor in the CEC Compliance & Ethics Certification (AAEC-UCEMA).

Author

Jesús Dávila joined Baker McKenzie in 2002 and became partner in 2009. He is recognized as a leading lawyer in Venezuela by Chambers Latin America and IFLR1000. Jesus advises domestic and multinational companies on the full scope of corporate transactions, including mergers, acquisitions, takeovers, joint ventures and a variety of other corporate work. He has a strong track record providing insightful advice to companies on matters of antitrust, foreign investment and technology transfer, IT/Communications, and trade and commerce. Jesus has been a professor in various renowned universities in Venezuela.

Author

Sebastian Doren is an attorney in Baker McKenzie’s Santiago office. He a member of the Firm’s International Trade and Customs Department. For more than 14 years, Mr. Doren has practiced in the area of criminal law — particularly in matters involving economic and counterfeit offenses. Mr. Doren advises local and multinational clients on criminal litigation. He specifically handles cases dealing with fraud against his clients and the financial/banking system, as well as anti-counterfeiting cases. Much of his practice proceedings have been against Chilean Customs and Administrative Offices.

Author

Carlos A. Felce sits on the Steering Committee of Baker McKenzie's Latin America Employment and Labor Practice Group, and is one of the coordinators of the Firm’s Labor & Employment Practice Group in Venezuela. He is ranked among the leading labor and employment lawyers in Venezuela by Chambers Latin America. Mr. Felce is also a professor of labor law at Universidad Católica Andrés Bello and Universidad Metropolitana.

Author

Tatiana Garces Carvajal is a lawyer and a specialist in Labor Law, graduated from Pontificia Universidad Javeriana, with post-graduate studies in Commercial Law from Universidad de los Andes. She has over 30 years of experience advising major clients on matters related to individual and collective Labor Law. For three years, she worked at Alcalis de Colombia, occupying the positions of Director in charge of the HR Department, head of the Legal Division of the Betania Plant, and as a Lawyer in the Legal Department. Previously, she worked as Head of the Personnel Department at AGA Ltda., and as a paralegal at the law firm Esguerra, Gamba, Barrera y Arriaga Asociados. In addition to her experience as professor, lecturer, author of several publications and arbitrator in labor collective disputes, she served as technical adviser to the employers’ delegate for Colombia at the 98th Session of the International Labor Organization in Geneva (2015). She also participated at the 93rd Conference (2009). Currently, Tatiana is a member of the Javeriana University Law School Council representing graduates from Universidad Javeriana. She joined Baker McKenzie Bogotá office in 1992 as an Associate in the Labor Law department and was appointed partner on July 1st, 2000. In 2017 she was appointed as Managing Partner for Baker McKenzie Bogotá office, which made her the first woman in Colombia to hold this position in a law firm. In addition to this position, she led the Employment and Compensation group in Latin America, until June of 2021. In the exercise of these functions, Tatiana was part of the Steering Committee of the Global Employment and Compensation Group, as well as of the Global Policy Committee of Baker McKenzie. Currently, she is part of the Employment and Compensation Steering Committee for Latin America, leads the Bogotá Employment & Compensation practice and as a member at large is part of the Global Employment & Compensation Steering Committee of Baker McKenzie.

Author

Alberto Gonzalez Torres practices in the area of employment law. He is a member of the Buenos Aires Bar Association and the San Isidro Bar Association. Alberto frequently contributes to The Global Employer — a Firm-sponsored publication — and has served as speaker for several Baker McKenzie conferences. He also co-authored Argentina's Proposed Labor Law Agreements for the National Law Center.

Author

Maria del Rosario Lombera-González is a partner and member of Baker McKenzie's Employment Practice Group in Mexico City. She was a member of the Mexican Commission of Employers before the International Labour Organization at annual conferences in the Commissions of Social Security and Globalization and Employment, and has participated in several meetings of seasoned practitioners in the field of social security. Rosario joined Baker McKenzie Abogados in 1985 and became a partner in 2005.

Author

Carolina Pardo joined Baker McKenzie in 1994 and is a Partner of the Firm since 2008. She is currently a member of the Global Steering Committee for the Firm’s TMT industry group and of the Global Steering Committee for the Firm’s Compliance & Investigations Group. She was a member of the Global Steering Committee for the Firm’s Global Antitrust and Competition from 2016 and until 2020 and is currently a member of the Latam's Antitrust Steering Committee. She graduated as a lawyer and a specialist in International Contracts Law from Universidad de los Andes in Bogotá. She obtained a LL.M. with emphasis in International Private Law and Competition Law from the London School of Economics and Political Science. Over 25 years, she has advised major national and international clients on matters related to compliance with data protection, competition and consumer law rules. She has represented clients in investigations and submissions related to data protection and competition matters in Colombia and has successfully coordinated and prepared white paper proposals to national authorities on behalf of major industrial groups in Colombia. In 2016 Global Competition Review selected her as one of the 100 most influential women in antitrust. The last two Superintendents of Industry and Commerce have selected Carolina as a Non-Governmental Advisor to the Colombian Antitrust Regulator.

Author

Monica Pizzaro is a lawyer with experience in advising on labor, pension and social security law to public and private companies and state institutions, as well as in sponsorship in judicial processes. She has been a consultant for the Gender and Employment Program of the International Labor Organization (ILO) and the Academy of the Magistracy, as well as undergraduate and postgraduate teaching at various universities. She is president of the Peruvian Society of Labor and Social Security Law.

Author

Teresa Tovar leads the Antitrust and Competition, Compliance and TMT groups in the Firm's Lima office, where she has been partner since 2007. She is also currently a member of Baker McKenzie's Latin America Antitrust and Compliance Steering Committees.

Author

Andres Valdes heads the Labor & Employment Practice Group of the Santiago office. He has more than 18 years of experience in advising Chilean and foreign companies in the areas of employment contracts, litigation, immigration, social security and pension funds, international executive transfers, workforce reductions, CBAs and union negotiations. He also has experience in corporate law matters, leading the acquisition of local businesses by foreign investors. He has provided pro bono advise to education foundations in Santiago.

Author

Leticia Ribeiro C. de Figueiredo joined the Firm in 1998, as a corporate trainee, and became partner in 2013. Until July 2003, she was primarily involved in M&A and Corporate Law, with experience in national and international M&A projects and corporate restructurings. From July 2003 on, she has been working exclusively in the Labor Law practice group.
She has a wide breadth of experience with strategic litigation cases and relevant consultancy in individual and collective matters (i.e. restructuring, equity pay, PDVs – voluntary resignation program, PLRs – participation in profits or results, alteration of compensation plans and benefits), including national and international projects. Additionally, she works with collective bargaining agreements.
Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.

Author

Heloisa Barroso Uelze joined the Firm in 2000 and became a partner in 2005. She has over 25 years of practice and is currently the head of the Brazilian Public Law, Government Relations and Regulatory Group at Trench Rossi Watanabe. Heloisa is recognized as a leading practitioner in such areas of law by various international publications such as Chambers, LACCA, Análise Advocacia, and PLC. Before joining Trench Rossi Watanabe, Mrs. Uelze worked for thirteen years in a law firm specialized in Public Law created by four of the most regarded scholars in Administrative, Public, Tax and Constitutional Law In Brazil, all of them respected Professors that held PHDs: Celso Antonio Bandeira de Mello, Geraldo Ataliba, Adilson Abreu Dallari and Michel Temer. In April 2000 Heloisa was nominated – due to her recognized ethical reputation and specialized legal knowledge, head of the legal department of Federal Government Autarchy, where she stayed for 12 years. Such position was not inconsistent with the private practice of law. Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law.

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