UPDATE: This law took effect on February 8, 2024.

*  *  *

On December 13, 2023, the Legislative Chamber of Costa Rica passed Bill No. 23,449, “Protección de las personas denunciantes y testigos de actos de corrupción contra represalias laborales” (Law for the protection of complainants and witnesses of acts of corruption against retaliation in employment). Once the law is signed by the President and published in La Gaceta, it will take immediate effect and become the first law to properly create and regulate whistleblower protections in Costa Rica.

Costa Rica passes this law as part of its commitment and effort to join the Organisation for Economic Co-operation and Development (OECD), whose Working Group on Bribery had already highlighted the country’s lack of proper whistleblower protections in an early 2020 report.

Scope

As its title suggests, the law is intended to protect both complainants (whistleblowers) and witnesses of both national and international acts of corruption, against any type of retaliation in employment.

The scope of the law is broad, as it defines “Acts of corruption” in a way that applies to both public officials in a strict sense (individuals employed by a government agency or institution) and in a broader sense those individuals who work for private-sector employers but who may be performing “public functions” as part of their job. The law labels acts of the corruption as follows:

1. Asking for or accepting any benefit or item with monetary value in exchange for any action or omission of public duties.
2. Offering or granting any benefit or item with monetary value in exchange for specific actions or omissions from public officials or individuals performing public functions.
3. Any action by a public official or individual performing public duties to unlawfully benefit themselves or others.
4. The intentional attempts to hide or cover the benefits of any of the aforementioned actions.
5. To participate as author, co-author, accomplice, instigator in the cover-up, or provider of support, in the aforementioned actions.

In addition, the law highlights other crimes already found in the Criminal Code and other laws, as being part of the definition of “acts of corruption” under this new law.

Protections for whistleblowers and witnesses

As defined by article 3, section (2) of the new law, the “oral or written communication of information related to the alleged commission of an act of corruption, before any public or private entity, including a public complaint” qualifies as a “complaint” and thus provides protections for both the complainant and any person who may have knowledge of the alleged acts and is listed as witness in an administrative or criminal proceeding.

These individuals, both the complainants and witnesses, are granted protections against retaliation, which according to article 4 of the law, includes:

• The suspension or termination of employment, or similar measures.
• Demotion.
• Undue refusal to promote.
• Unfavorable changes to conditions such as schedules, job duties, compensation.
• Negative feedback and performance reviews.
• Threats, intimidation, and harassment.
• Discrimination.
• Any other similar forms of retaliation.

Whistleblowers and witnesses also enjoy, in addition to these protections, a “protective immunity,” which under Costa Rican law means that they cannot be terminated from employment except for just cause, as defined in the Labor Code. Even then, the employer must first seek authorization from the Ministry of Labor before proceeding with termination.

The law also prohibits and considers illegal any provision, covenant, or agreement that inhibits the ability to file a complaint, forces the individual to resign, risks their employment, or in any way limits the protections granted by the law. Any such clauses are deemed null and void.

The law also grants whistleblowers and witnesses the same access to free public defense attorneys and an expedited judicial process in case they are terminated in violation of the due process established by the law.

Application to private sector employers

As mentioned, the law has a broad definition of who may either file a complaint or be liable for alleged acts of corruption. Any individual who, despite being employed by a private company, performs “public functions,” could be the subject of a complaint.

Additionally, and most importantly for the private sector at large, the law imposes an obligation on all employers of 50 or more employees, to create an internal channel to receive and address complaints, and a duty to maintain as confidential the identity of the complainant, including any information that could lead to the identification of the whistleblower.

Finally, the law has specific measures and procedures for punishing public officials, but also imposes heavy fines on private employers that unlawfully retaliate in violation of the protections granted by the law.