Once again, Latin Lawyer 250 recommended Morgan & Morgan as the largest firm in Panama. “A large headcount and an established presence in the market gives Morgan & Morgan the manpower and experience required to guide some of Panama’s most significant transactions”, states the guide.
This 2018 edition looks at each jurisdiction firm by firm and presents a complete analysis of most recent developments, practices and leading professionals field by field.
Partners Juan David Morgan Jr., Francisco Linares, Enrique De Alba, Jazmina Rovi, Inocencio Galindo, Francisco Arias, Ramon Varela, Roberto Lewis, Raul Castro, Ricardo Aleman, Albalira Montufar, Maria Teresa Mendoza, Mercedes Arauz de Grimaldo, Enrique Jimenez and Jose Carrizo, received mentions as key players.
By: Ricardo Alemán, partner, Morgan & Morgan
The International Labor Organization (ILO) defines sexual harassment as “any conduct of unwanted sexual nature that, according to the reasonable perception of the recipient, interferes with their work, is established as a condition of employment or creates an intimidating hostile or offensive work environment.”
As the jurist Oscar Vargas Velarde points out in his work on Labor Law, jurisprudence in the United States indicates that sexual harassment can also occur in two aspects:
- First: the “quid pro quo”, in which some type of reward is offered (promotion, salary raise, etc.) in return for sexual favors. It is direct harassment and the determining factor is that the conduct is unwelcome by the person to whom the conduct is directed.
- Second: the hostile work environment, in which sexual harassment is sufficiently severe or pervasive enough to alter the victim’s employment conditions and foster an abusive work environment.
Types of Sexual Harassment
Taking into consideration the definitions and criteria of the various courts, Panamanians and foreigners, we can determine the existence of at least three types of sexual harassment, namely:
- Harassment or persecution between co-workers, of the opposite sex or of the same sex, for eminently sexual purposes.
- The intimidation or harassment of a boss towards a subordinate, including under promises of salary or position improvements or threats of sanctions or dismissal also for sexual purposes.
- Work environment harassment, which is unwelcome sexual incitements or solicitations, with the purpose or effect of coercing in an unjustified manner a person’s work performance or creating an offensive, hostile, intimidating or abusive work environment to achieve that the worker leaves the job. This discomfort may be manifested through the display of pornographic material, such as magazines, photographs, mail or other means.
As noted, these conducts can be of varied nature, such as requirements, propositions, jokes, teasing, and display of posters or photos with sexist remarks, from physical behaviors or unwanted contact that can be vexatious for the victim, until it becomes assault or sexual assault.
Many victims of sexual harassment accept this situation and do not report it because they fear losing their jobs and, also, for fear of not being taken seriously since most of the time they do not have evidence to prove the harassment and, thus, it would be one’s person word against another one. Although the victims of sexual harassment are mostly women, men also suffer from them, especially in today’s world where more and more women occupy more important or higher-ranking roles within companies.
What does Panamanian legislation say for companies?
The Republic of Panama approved Law 7 of February 14, 2018, which adopts measures to prevent, prohibit and punish discriminatory acts and dictates other provisions. The provisions of the Law are of public order and bind all those who are in the national territory.
This law prohibits and establishes responsibility for all acts of violence that threaten the honor, dignity, physical and psychological integrity of the people. It also defines “harassment, sexual or moral harassment”, as the systematic or continuous action or omission or eventual repetition, in which a person insinuates, invites, requests, pursues, limits or restricts rights, diminishes freedom, acts disrespectfully or offensively, humiliates others in order to obtain some sexual retribution or affects the dignity of the other person.
In the workplace, it includes, but is not limited to, exploitation, the refusal to give the victim the same employment opportunities, not applying the same selection criteria, not respecting the permanence or general conditions of work or discrediting the work accomplished.
It defines “racism”, as a conception that starts from a superiority of certain races or race over others, and “sexism”, as the attitude or action that undervalues, excludes, over presents and stereotypes people by their sex.
Obligations of the employer according to the new Law
Every employer shall have the responsibility to establish an internal policy, through orientation programs and included in the internal regulations or collective agreements, that prevents, avoids, discourages and sanctions the acts of harassment, sexual or moral harassment, racism and sexism.
Failure to comply with the measures ordered by the employers entails a fine of B/.550.00 to B/.1,000.00, imposed by the jurisdictional labor authority, each time a case is sanctioned for any of the conducts provided in the law.
The Ministry of Labor and the hierarchical superiors in the private company are the entities in charge of ensuring compliance with the Law, when the responsibility for establishing the policy against the described conducts is borne by the employer.
What should the affected employee do?
An employee who feels sexually harassed or persecuted should inform their superior or the corresponding department what is occurring and provide evidence, if available, to allow the employer to conduct the corresponding investigation, which allows him/her to dismiss the harasser on justified grounds. Likewise, the employee harassed by a superior, for sexual purposes, can resign from employment on justified grounds, and by proving what has been reported, the employee shall be entitled to payment of the compensation provided for in the Labor Code, in cases of dismissals with cause justified.
The procedure to investigate and resolve cases of harassment, sexual or moral harassment, racism and sexism shall be expeditious, effective and confidential and in no case may exceed the period of three months, counted from the filing of the complaint.
Whenever a case of harassment, sexual or moral harassment, racism and sexism is reported, companies must prepare a written report thereof, which shall contain the details of the investigation, allegations and testimonies and other elements of evidence.
Whoever falsely denounces any conducts sanctioned in the Law shall commit the offense of criminal simulation, according to the Criminal Code.
Effects of the law in the education sector
The regulations set forth in Law 7 of February 14, 2018 also apply to students of educational and teaching centers, both official and private within the Republic of Panama.
It defines harassment, sexual or moral harassment, such as threats, intimidation, humiliation, mocking, physical abuse and discrimination against people with disabilities or any type of discrimination based or not on the sex of the victim.
It also defines racism as the conception that starts from a superiority of certain races or races over others, based on a supposed biological purity that must be translated into advantages for the superior race, or in the recognition of its dominion over others or others that are eventually discriminated against and treated unworthily.
On the other hand, sexism is defined as the attitude or action that undervalues, excludes, over represents and stereotyped people by sex.
Obligations of educational entities
Every official or private school shall have the responsibility to establish an internal policy that prevents, avoids, discourages and punishes acts of harassment, sexual or moral harassment, racism and sexism. Consequently, they should:
- Implement counseling, guidance and promotion programs on the prohibition of conducts provided by law.
- Establish, through internal work regulations or orders of management, a complaint and resolution procedure, adequate and effective, to enable the submission of complaints for such conducts. This procedure must establish adequate internal policies as established in this law providing confidentiality, protection to the claimant and witnesses, as well as an exemplary sanction for those engaging in the described conduct. Said procedure may not exceed a period of three months to be established.
Non-compliance with the measures set forth in the law by employers, hierarchical superiors of the victim in educational centers shall be sanctioned with a fine of B/.500.00 to B/.1,000.00.
Panama, April 25, 2018. Morgan & Morgan announces forum on “Trends in Labor Matters 2018: What are the new regulations?” to be held on Tuesday, May 29, from 8:00 a.m. to noon at the Titanio conference room of The Americas Golden Towers in Panama City.
The event is addressed mainly to businesspeople, managers, human resources and administration professionals, and general staff of domestic and multinational companies established in the country. The agenda includes new regulations and norms on labor issues that every professional managing human resources should know to comply with the law and avoid risks to their companies.
Lawyers with extensive experience in labor issues will discuss the following:
- Sexual harassment and discrimination within the company and at an education level
Ricardo Aleman, partner at Morgan & Morgan.
- Main issues regarding employee’s paternity: leave and child support
Maria Teresa Mendoza, partner at Morgan & Morgan.
- Features of special privileges: disability and chronic disease
Milagros Caballero, associate at Morgan & Morgan
About Morgan & Morgan
With over 80 lawyers and 20 practice areas, Morgan & Morgan is a full service Panamanian law firm, regularly assisting local and foreign corporations from different industries, as well as recognized financial institutions and government institutions. In the labor field, the firm is very active assisting local and international clients in all aspects of labor law, including, drafting employment contracts, collective bargaining negotiations, work permit applications, administrative proceedings, labor litigation and disputes processes, negotiations with employees, restructuring processes, among others.
The Government of the Republic of Panama, through Executive Decree No. 40 of Tuesday, March 20, 2018, orders the closure of public and municipal offices, nationwide, on Thursday, March 29, 2018 (Holy Thursday) at twelve (12) noon on the occasion of Holy Week.
- Terms on administrative procedures are suspended on March 29.
- Banking institutions will be governed by their own parameters.
To whom does this not apply?
It does not apply to the following public offices: Institute of Aqueducts and Sewage Systems (IDAAN), health institutions (both Social Security Offices and the Ministry of Health), postal services, the Fire Department, National Civil Protection System, Transit and Land Transport Authority, Panama Metro, National Service of Migration and the Security Forces. The Panama Canal Authority is also excepted.
Offices of the Judicial Branch
By means of Agreement No. 166 of March 20, 2018, the Court of Justice has decreed the closing of Courts and other Offices of the Judicial Branch throughout the Republic of Panama on Thursday, March 29, 2018, with the consequent suspension of judicial terms during the aforementioned day. Courts will resume activities on Monday, April 2, 2018.