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In brief

Since the inception of the European Union’s Whistleblowing Directive in 2019, we have seen greater scrutiny of whistleblowing practices and a number of key jurisdictions beyond Europe upgrading their whistleblowing laws. Read on for a summary of the latest developments in whistleblowing laws across the globe.


Contents

  1. APAC
  2. EMEA
  3. LATAM
  4. NA

We have deep expertise in advising employers across the globe on key employment, privacy and compliance issues that arise when implementing whistleblowing policies, rolling out whistleblowing hotline systems, and handling whistleblowing-related complaints. We provide globally coordinated on-the-ground support, and we can help you benchmark your approach based on our combined experience of working with a wide variety of organizations in implementing whistleblowing regimes. 

For more information, contact your Baker McKenzie relationship partner or send a general inquiry to our team here. To find out more about our EU Whistleblower Directive Fixed Fee Product, click here.

APAC

In Asia Pacific, towards the tail end of 2021, Australia’s corporate regulator began ramping up its review of corporations’ whistleblowing policies to check compliance with Australia’s amended Corporations Act. Meanwhile, Japan is set to enforce its amended Whistleblower Protection Act in June 2022, mandating organizations of a certain size to implement whistleblowing systems. In Hong Kong, the Stock Exchange of Hong Kong Limited amended its Corporate Governance Code to include provisions on the implementation of a whistleblowing policy and system for employees in tandem with anti-corruption policies, which came into force on January 1, 2022. 

In October 2021, Australia’s corporate regulator, the Australian Securities and Investments Commission (ASIC), wrote an open letter to public companies urging them to review their whistleblowing policies to ensure they are compliant with the Corporations Act. ASIC has advised that many policies it has reviewed do not fulfill the objective of encouraging employees to report issues and/or do not accurately present the information required to be included.

The Stock Exchange of Hong Kong Limited has amended its Listing Rules, including the Corporate Governance Code (CG Code), to enhance the corporate governance framework and promote good governance among issuers. Whistleblowing, anti-corruption policies and systems are now a CG Code provision, rather than only a recommended best practice. 

In June 2022, amendments to the Whistleblower Protection Act (Amended WPA), a law that protects employees who have reported violations of certain laws specified in the WPA, are expected to come into force. Amongst other items, the Amended WPA includes a mandatory obligation for companies of a certain size to establish a whistleblowing system with the aim of ensuring the protection of whistleblowers.

EMEA

In Europe, member states including Cyprus, Denmark, France, Latvia, Lithuania, Malta, Portugal, Romania and Sweden have implemented the Directive into national law, while most remaining EU member states still have pending draft legislation in relation to the Directive, with at least six member states expected to implement their laws within the first half of 2022. For example, Spain recently introduced a draft law on the protection of informants, which is yet to be brought into force. 

The EU WBD (i) provides robust anti-retaliation protection to whistleblowers who report certain breaches of EU law and (ii) sets out a framework for internal and external reporting, with strict procedural requirements and time frames. Organizations should map the EU WBD requirements against existing speak-up channels and investigation protocols and procedures, and identify any gaps. They should also carefully monitor implementation by EU Member States because there will be areas of gold-plating/divergence in local laws, as we’ve seen in the Danish and Swedish implementation.

To help you get started in planning your organization’s whistleblowing regime, we can provide your company with a multijurisdictional analysis matrix covering five key areas. For a fixed fee per jurisdiction, we offer jurisdiction-specific data sheets that provide answers to questions about the Directive’s scope and implementation requirements for internal procedures, protection of whistleblowers, and data privacy issues. Check out this template to see what questions are covered.

For more information about this product, or to arrange a discussion with one of our colleagues, click here.

LATAM

With greater scrutiny around compliance programs in Latin America, for example in Peru, the importance of whistleblower hotlines and robust internal investigations systems cannot be underestimated. 

A quick guide to workplace investigations in Latin America that covers both the labor and compliance perspectives throughout seven jurisdictions.

This guide provides a user friendly overview of the most relevant legal aspects relating to workplace investigations in Brazil.

  • Chile: Market transparency law published

On April 13, 2021, Law No. 21,314 was published, which establishes new transparency requirements and strengthens the responsibilities of market players. Essentially, this law amends Decree-Law No. 3,538, adding a new Title VII entitled “Of the Anonymous Whistleblower.”

  • Chile: New whistleblower protection

A bill (bulletin N° 13565-07) establishing a new protection statute in favor of the whistleblower of acts against administrative probity is currently in Congress. It is not known when it could become law.

NA

In the United States, New York’s amended whistleblowing law came into force on January 26th, affording expanded protections in favor of employees.

The latest episode of our video chat series provides an overview of the changing landscape of whistleblower protections in the US, UK and European Union.

In November 2021, New York amended its whistleblower law, New York Labor Law §740. The amendments went into effect on January 26, 2022, and provide significant expansions in favor of employees.

Author

Michael Brewer is the Managing Partner of Baker McKenzie's California offices in San Francisco, Palo Alto and Los Angeles and Chair of the Firm’s Global Employment & Compensation Practice. A trial lawyer who represents global and domestic clients, Michael has tried class action and single plaintiff employment cases before judges, juries and arbitrators. Super Lawyers has repeatedly recognized Michael for his superior defense of employment claims.

Author

Susan Eandi is the head of Baker McKenzie's Global Employment and Labor Law practice group for North America, and chair of the California Labor & Employment practice group. She speaks regularly for organizations including ACC, Bloomberg, and M&A Counsel. Susan has been published extensively in various external legal publications in addition to handbooks/magazines published by the Firm. Susan has been recognized as a leader in employment law by The Daily Journal, Legal 500 PLC and is a Chambers ranked attorney.

Author

Dr. Bernhard Trappehl chairs the EMEA Employment Practice Group and manages relationships with several of the Firm’s largest clients. He served as managing partner of the Firm’s German/Austrian offices between 2007 and 2012. He frequently speaks at seminars and provides in-house trainings on a wide range of employment matters, and regularly contributes to publications, books, newspapers and law journals.

Author

Michael has more than 15 years' experience as an employment law and industrial relations lawyer, acting for clients in a range of industries, including banking and finance, insurance, health and pharmaceuticals, telecommunications, real estate, media and entertainment, information technology and professional services. He has developed and published compliance programs and best practice policies locally and within Asia Pacific. He is the author and a developer of CCH’s Employment Contracts Manager, a software package that builds and tailors smart employment contracts. He has also authored a large number of chapters in every edition of CCH’s Australian Master Human Resources Guide. Articles written by Michael on employment law topics have appeared in the Melbourne University Law Review, CFO Magazine, Human Capital, Lawyers Weekly, Human Resources, and CCH’s Employment Law Bulletin. He has also spoken at events arranged by the College of Law, Macquarie Graduate School of Management, and various professional associations. He wrote and produced “Dismissal Impossible,” a training video on unfair dismissal and sexual harassment, for the Australian Stock Exchange. Michael regularly conducts employment-related litigation before State and Federal courts and industrial tribunals at an original and appellate level.

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.

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