i Legal framework
Employment relations in Mexico are governed primarily by the Mexican Constitution, in which the guidelines for employment in Mexico are established. The Constitution was enacted in 1917 and has been amended several times. In labour matters, the Constitution provides a response to workers' demands for better terms and conditions of employment – given the abuse they were subjected to by employers before the enactment of the Constitution – and thus seeks to balance production and capital forces with regard to the rights and conditions of the working class by setting forth minimum statutory benefits and conditions within employment relationships. Article 123 of the Constitution governs everything related to employment relations in Mexico and is divided into two main sections: Section A, for private employment relations (between private employers and their employees); and Section B, for relations between government entities and their employees.
The Federal Labour Law (FLL) is the statute that regulates the labour and employment principles set forth by the Constitution, covering in detail all aspects related to individual and collective employment relations within the whole territory of Mexico: from definitions of basic concepts of labour and employment, types of contracts, statutory benefits and compensation, health and safety, and training regulations, and profit sharing obligations, to procedural and judicial matters, such as labour claims, strikes and all types of labour and employment proceedings (judicial and administrative).
Throughout its history, the labour legislation has undergone two major amendments and some other minor reforms. As a result of the amendments to the FLL, the trends in labour and employment law have resulted in new methods of handling and managing employment and industrial relations between employers, employees and labour authorities. These amendments are the most substantial changes that have been made to the statute since it was integrally amended in 1970, and they came more than a year after a fundamental reform was made to the Constitution with regard to the protection of human rights.
Both the Constitution and the FLL divide labour matters into two different jurisdictions – federal and local – depending on the industry and activities in which the employer participates. The federal government, through its conflict resolution bodies (federal conciliation and arbitration boards) and through its administrative labour authority (the Ministry of Labour and Social Welfare), is in charge of resolving controversies that are related to the following industry sectors or activities:
- film industry;
- metallurgical and iron and steel, covering the exploitation of basic minerals, the benefit and smelting of these, as well as extraction of metallic iron and steel, in all their forms, and lamination;
- cement industry;
- lime industry;
- automotive, including mechanic or electric auto parts;
- chemical, including pharmaceutical and medicines;
- cellulose and paper;
- oil and vegetable fats;
- food-producing industry, covering exclusively the manufacture of packed, canned or bottled food;
- manufacture of canned or bottled beverages;
- rail industry;
- basic lumber industry, covering the manufacture in sawmills or of plywood;
- glass industry, exclusively the manufacture of flat, plain and cut glass, glass containers;
- tobacco industry, covering the benefit or manufacture of tobacco products; and
Application of the law with regard to any other industry branch or activity not mentioned in the above list shall be the responsibility of local (state) governments and administrations through their own labour and employment judicial and administrative bodies. Nonetheless, these bodies must also abide by the FLL in matters involving labour and employment.
In addition, the Social Security Law governs social security, nursery, medical and retirement mandatory benefits granted by the social security system to all employees. Employers are obliged to register themselves and their personnel with the Social Security Institute, and both parties are obliged to make the applicable social security contributions for employees' protection (employees' contributions are withheld from their paycheck and paid by the employer to the Social Security Institute on behalf of the employee). The Law also outlines the rights and access of employees and employers to the social security system benefits, which encompass the following insurance or coverage services in favour of employees: occupational risk; health and maternity; disability and life; retirement pensions; and day care.
The Law for the National Fund for Housing of the Employees, the Law of the Institute of the National Fund for Worker's Expenditures and the Law for the Retirement Savings System are other pieces of social security legislation governing different and more specific aspects of additional social security and welfare benefits in Mexico, such as loans granted to employees for their buying consumer goods and services, and loans for the acquisition, remodelling or extension of real estate property.
ii Judicial and administrative authorities
The authorities in charge of solving any employment-related conflicts are the labour boards; however, in accordance with the amendments made to Articles 107 and 123 of the Constitution and the consequent reforms to the corresponding legislation, including the FLL, the labour boards will cease to exist and will be replaced by labour courts, which will be dependent on the judicial system (see Section II).2 Currently, there are both federal and local labour boards, depending on the industry branch, covering the activities of the companies involved in such trials. These boards are tripartite, being composed of one representative of the employers, one representative of the employees and one representative of the government, to ensure there is balance in every employment relationship, as mentioned in subsection i, and they depend directly on the local or federal government respectively. Any constitutional remedy proceeding (amparo) filed by the parties on trial against any resolution issued by a local or federal labour board will be resolved by the federal courts or by the Supreme Court of Justice (if the case fulfils the proper requirements), which depend directly on the Federal Judicial Power.
In addition to the labour boards, the Ministry of Labour and Social Welfare, at a federal level, and the local ministries of labour, are the authorities in charge of the enforcement of employment regulations within their respective jurisdictions.
II YEAR IN REVIEW
As mentioned in Section I, throughout its history, the labour legislation has undergone major amendments and reforms in order to adapt to the constant evolutions in employment relationships. Some interesting new interpretations and concepts have recently come to light. The following is a summary of the hot topics this year regarding Mexican labour and employment law.
i Reform of Articles 107 and 123 of the Constitution
One of the major amendments to the labour legislation occurred on 13 October 2016, when the initiative to reform Articles 107 and 123 of the Constitution was approved by the Senate. The initiative was a result of the 'Dialogues for Daily Justice' carried out by the Economic Research and Teaching Centre, which consulted with academics and lawyers to elaborate a set of proposals on this matter. The main aspects of the constitutional reform are:
- The creation of labour courts to replace the boards of conciliation and arbitration, delegating the administration of labour justice to federal and local court systems, thereby making the switch from the executive branch to the judicial branch.
- The creation of 'conciliation centres' in federal and local jurisdictions, which entails a mandatory stage of the judicial procedure for employers and employees that occurs before the formal initiation of the labour conflict.
- The collective bargaining agreements (CBAs), internal labour regulations and the procedures for their execution, filing, registration, conciliation and litigation will be concentrated in a newly created governmental decentralised body, which will depend on the executive branch and will be in charge of the above-mentioned collective matters, as well as the conciliation centres.
- Regarding outsourcing arrangements, it is expected that the sanction of considering the beneficiary of the services as the employer of the employees providing the services will be eliminated, returning to the formula that the beneficiary will only be considered jointly liable in case of non-compliance by the third-party company service provider.
- For requesting the execution of a CBA along with a call to strike, the union must evidence that it represents and has affiliated at least 30 per cent of the employees working at the company in union-type positions (e.g., blue-collar workers), as well as to have those employees request or approve the call to strike.
On 24 February 2017, the decree declaring the amendments to the provisions of Articles 107 and 123 of the Constitution was published in the Federal Official Gazette. The decree entered into force in February 2018. As a result, in June 2018, the Council of the Federal Judiciary created the Unit of Implementation of the Reform in Labour Justice, whose main purpose is to prepare and issue advisory opinions on matters related to the creation of procedural legislation on labour matters, as well as be responsible for the programmes related to the planning, training and dissemination of regulatory projects, budget programming, and institutional monitoring of the above-mentioned reform.
Some interesting new interpretations and concepts have recently come to light. The following is a summary of the hot topics this year regarding Mexican labour and employment law.
ii International Labour Organization Convention 98
On 18 September 2018, the Senate ratified Convention 98 of the Internal Labour Organization, which relates to collective labour rights for employees. The main aspects of the ratification of Convention 98 that will have a significant impact on companies in Mexico are the following:
- The elimination of 'white' or 'ghost' unions, by requesting the approval of the employees regarding the CBA applicable at the workplace and the union that represents them, allowing unions to participate in company matters and informing employees of the existence of the union and the CBA in place.
- Strengthening of the individual freedom of association of employees, by prohibiting companies from forcing employees to affiliate to the union that is in the workplace or to stop being a member of a union, so that they are able to affiliate to unions of their choice.
- Further strengthening employees' freedom of association by allowing for two or more CBAs applicable in a company executed with two or more unions.
- New obligations for companies to eradicate discrimination against employees in relation to their freedom of association.
This will be a positive development for unions and workers' representation, taking into consideration that Convention 98 is fundamental in terms of unions' collective bargaining rights and will be in line with the new reforms to the labour laws regarding collective bargaining and representation of workers.
The main goal is to avoid concentrating solely on workers' best interests and to encourage both parties in the labour relationship to reach an agreement in line with the basic principle of labour peace, as well as preventing or eliminating white or ghost unions.
iii Mexican Official Standard on Occupational Health and Safety
On 23 October 2018, the Mexican Official Standard NOM-035-STPS-2018 on psychosocial risk factors at the workplace – identification, analysis and prevention (NOM-035) was published in the Federal Official Gazette, as a result of the Ministry of Labour and Social Security's proposed regulation to promote a favourable environment for employees in the workplace. NOM-035 aims to identify, analyse and prevent psychosocial risk factors at the workplace that can cause anxiety disorders, severe stress disorders or adjustment disorders, arising from the nature of the work the employees carry out, among other things. The risk factors set forth by NOM-035, which must be identified and analysed by companies, are the following: conditions of the work environment; workload; lack of control over work; work shifts and rotation of shifts; interference in work – family relationship; negative leadership and relationships; and violence at the workplace. The creation of NOM-035 entails the following obligations for companies with 16 or more employees: identify and analyse the risk factors; carry out a psychological evaluation and medical examination of an employee who presents symptoms of any alteration to his or her health; and create a programme to prevent and control risk factors, which may include a written prevention policy that promotes awareness and social support, and a means for employees to file complaints.
III SIGNIFICANT CASES
In February 2018, the Supreme Court of Justice issued a decision stating that payslips that do not have the signature of the employee but instead contain a digital seal, in accordance with Article 99, point III of the Income Tax Law, have full evidential value in a labour trial. The FLL, taking into consideration the evolution of scientific and technological knowledge, allows for the use of certain documents resulting from such progress, such as digital documents or electronic media, where the method by which they were generated can be considered completely reliable.
IV BASICS OF ENTERING AN EMPLOYMENT RELATIONSHIP
i Employment relationship
According to the FLL, entering into an employment contract is mandatory, particularly because it allows both parties to set in writing the terms and conditions of the employment relationship. However, the FLL provides that rendering personal and subordinated services in favour of another person or corporate entity without entering into an employment contract has the same effect as if the parties had executed a contract, and that the omission in the execution of an employment contract is the direct responsibility of the employer.
Under the current amended labour statute, there are five different types of contracts for hiring personnel. The standard contracts are entered into for an indefinite term, based on the principle of employment stability that prohibits employers from laying off their workforce without sufficient grounds (based on the causes for termination set forth in the FLL).
Contracts for a fixed term or for a specific task may be entered into when the needs of the employer are in accordance with such an engagement. To validly enter into these agreements, employers must justify their reason for hiring an employee for a fixed term or for a certain undertaking, and hence the contract will terminate automatically at the end of its maturity in case of fixed-term employment or at the completion of the undertaking in case of employment for a specific task. If the work or activities under which the employee was originally hired for a fixed term or specific task continue after the end of the contract, then the employment relationship will be automatically extended and consequently deemed to be for an indefinite term.
The two new types of contracts added to the FLL and the trial period provided for in the amendment are as follows:
- Seasonal contract: this contract allows employers to hire personnel when the workload increases during a certain time of the year (e.g., Christmas or the summer season).
- Initial training contract: this contract allows employers to train their employees for three months (six months for high-level executives) and if at the end of the training period the employer considers that the employee does not meet the requirements set forth for the job, the contract terminates naturally without any liability for the employer other than that of paying the corresponding salaries and benefits accrued during the trial period. In this regard, at the end of the training period the employer must verify that the employee did not meet the requirements for a permanent engagement and that it heard the recommendation of the joint committee of the company.
- Trial period: this addition to temporary and permanent contracts of employment allows companies to assess their new personnel for 30 days (180 days for employees in high-level positions (e.g., executive, managerial, supervisory) and for employees with a bachelor's or technical degree), which cannot be extended. If at the end of the contract's term the company determines that the employee does not have the abilities or skills required to perform the job, the contract may be terminated without any liability for the employer, except to pay the corresponding benefits accrued during the trial period. In this regard, employers must include objective elements in the contract to assess the abilities of the employee.
The FLL specifically provides that employers cannot execute subsequent training or trial-period contracts with the same employee. They are valid for one period only. Once the term of the trial or training period has ended, the contract and the employment relationship would be terminated accordingly, unless the employer deems that the employee meets the requirements for the position, in which case the employment relationship may be extended and considered as indefinite as a matter of law.
Article 25 of the FLL provides the statutory content required for every employment contract:
- name, nationality, age, gender, marital status, personal ID number, taxpayer registration number, and address of both the employee and the employer;
- whether the employment relationship is seasonal, or for a specific task, for a fixed term, for initial training or for an indefinite term, and whether such contracts are subject to a trial period;
- the service or services to be provided, which shall be stated in as detailed a manner as possible;
- the place or places where the work shall be rendered;
- the duration of the work shift;
- the form and amount of the salary;
- the day and place for salary payment;
- indication that the employee will be trained in terms of the plans and programmes established by the company, pursuant to provisions of the FLL; and
- any other term and work condition, such as days of rest, holiday and any additional agreement reached between employee and employer.
In addition, although they are not mandatory, it is also advisable to detail any benefit paid to the employees as part of their compensation package, a work-for-hire provision and a provision regarding information privacy and personal data protection, as well as confidentiality of the information provided to or generated by employees.
Execution of the employment contract shall be on the starting date; however, if parties are not in a position to enter into the contract on this date, it is possible to do so later, but the contract would have to include the starting date considered for purposes of seniority.
Employers are not entitled to change the terms of employment unilaterally. If parties wish to amend or change the employment contract or its terms, it would be necessary to execute an amendment to the contract. However, the FLL prohibits employees from waiving any of their acquired rights, thus a provision stating lower employment conditions or benefits than those they were receiving prior to the amendment will be considered null and void as a matter of law. Therefore, amendments or changes to the employment contract would only be valid if better terms and conditions for employees are foreseen in it or if benefits above the minimum required by the FLL are first liquidated with the authorisation of the employee through the payment of the corresponding severance.
ii Establishing a presence
Foreign companies can hire Mexican employees without being incorporated under Mexican laws, but, as with every other employer, they have to comply with all the obligations related to employment, such as labour, social security and taxes, which makes it necessary for foreign employers to register with the tax and social security authorities and to obtain the corresponding tax ID number. The foregoing implies a practical problem for foreign employers, as to obtain the aforementioned registrations they need to set up a Mexican branch or incorporate a subsidiary. On the other hand, foreign employers who hire Mexican employees from abroad could fall under the permanent establishment concept for fiscal purposes, which means that the activities performed by the hired employee in Mexico could be deemed to be part of a permanent establishment of the foreign employer, and, as such, all income or revenue generated by the employee would be subject to corporate tax in Mexico.
However, foreign companies exploring the possibility of doing business in Mexico without having to incorporate, enrol with the social security system as an employer and obtain a tax ID number, can resort to an outsourcing agency or a payroll company through the execution of a services agreement in exchange for an agreed fee or consideration with the corresponding vendor. This has become a common business practice in Mexico and provides companies with the possibility of transferring employment and social security obligations to a third party, with the obligation of paying the cost of the employment plus the corresponding fee for the services provided by the agency.
Nevertheless, and as outlined above, the FLL now provides certain limitations and requirements for outsourcing engagements, specifically for beneficiaries of the outsourced services not qualifying as employers and, as such, having to fulfil all employer obligations towards the outsourced employees assigned to them. In this regard, it is of paramount importance to structure each outsourcing engagement in terms that comply with the provisions provided by Article 15A of the FLL as well as to negotiate the outsourcing agreements in terms such that the outsourcing agencies assume the liabilities that were imposed on the beneficiaries under the amendments, since this could be material and, in principle, should be obligations that would have to be borne by the vendors or personnel providers as part of their services and in consideration of the fees paid to them by the clients.
In connection with independent contractors, a foreign company doing business in Mexico without being registered or incorporated under Mexican law can engage an independent contractor by entering into a services agreement with the contractor, in which it is specified that the contractor would act as an independent contractor not subordinated to the foreign entity. As such, the contractor would have to invoice the foreign entity for the services rendered.
In all employment relationships, and regardless of whether the employer is a Mexican national or entity, minimum statutory benefits set forth in the FLL must be granted and paid to employees, such as paid holiday, holiday premium and Christmas bonuses. The law foresees minimum standard benefits that cannot be waived, and employers cannot grant anything below those minimum standards.
Holiday is granted according to employees' seniority: for the first year of service, employees are entitled to a minimum of six days' holiday; for the second year of service, they are entitled to eight days; for the third year, they are entitled to 10 days; and for the fourth year, they are entitled to 12 days. From the fifth year onwards, two days' holiday are added every five years. In addition to this, employees are entitled to 25 per cent of the salary earned during their holiday (at least) as a holiday premium.
Employees are also entitled to a Christmas bonus equivalent to at least 15 days' salary, which must be paid before 20 December of each year. The purpose of this bonus is to cover all expenses required for all the year-end festivities.
In connection with the taxes, employers are bound to withhold and deliver to the authority any and all applicable taxes over salaries and benefits granted to their employees. Also, employers are bound to calculate and pay the corresponding social security contributions.
V RESTRICTIVE COVENANTS
Article 5 of the Constitution states that no individual shall be kept from engaging in any profession, industry, commerce or job that best suits him or her, as long as it is lawful. Therefore, from a strict labour law perspective, non-compete and non-solicitation clauses and agreements are generally not enforceable in Mexico, as the authorities cannot restrict individuals from the exercise of the aforementioned right. However, if such clauses and agreements are executed or established to be in force for the duration of the employment relationship with the employees, then the non-compete and non-solicitation clause or agreement would be enforceable in Mexico.
Notwithstanding the foregoing, some employers have adopted the practice of executing agreements (of a civil nature) with their employees under which the employees assume covenants (i.e., non-compete, non-solicitation or non-disparagement) tied or linked to a liquidated damages provision that would have to be paid by the employee in the event of a breach of the covenant, in which case the employee is not restrained from performing the restricted activity but, in the event of a breach, could be held liable for the payment of the established amount. The foregoing could have a deterrent effect on employees for not competing or soliciting against their former employers; however, these clauses could also be held null and void if related directly to the employment or if submitted to and resolved by a labour board (soon-to-be labour court) or labour federal court. Another approach is paying the former employee an agreed amount for not competing, which must be paid at the end of the non-compete period, since it is the best way to encourage the former employee not to engage in competitive activities during the agreed period.
i Working time
The FLL states that for every six working days, employees shall be entitled to one day of rest. There are three different work shifts, as follows:
- eight hours a day for daytime work (48 hours a week);
- seven hours for night work (42 hours a week); and
- seven-and-a-half hours for a mixed work shift (45 hours a week).
The FLL also provides that employees are entitled to at least 30 minutes of rest or to have their meals during their shift, and this time shall be considered as part of their work shift. It will also be considered as part of the employees' work shift if they are not allowed to leave the workplace during this time. However, there is new case law stating that the rest or meal period must be at least 60 minutes, which cannot be considered part of the continuous work shift. While the FLL has not yet been updated to reflect this change, employers must comply with the new requirements. This means modifying work shifts or running the risk of operating work shifts that surpass the limits established by law, as a 30-minute extension per day would now be considered work time.
Even though the statutory daily work shift sets out a maximum of eight working hours for the daytime work shift, the law permits both parties to distribute the maximum of 48 hours in such a manner that allows employees to enjoy an extra day of rest, which is why employees would be able to work for more than eight hours per day as long as their weekly work shift does not exceed the statutory maximum of 48 hours.
Any time worked in excess of the mandatory 48 weekly hours will be deemed overtime and, as such, employers shall pay any overtime worked.
The FLL foresees seven working hours for those employees hired for night work. Nevertheless, there is the possibility of both contracting parties agreeing on the distribution of shifts to allow the employees to have an extra day of rest. In this case, the maximum weekly working hours for the night shift is 42, and any time worked in excess of that will be deemed overtime.
The FLL also states that the working hours for the three different work shifts are:
- daytime shift, which is between 6am and 8pm;
- night shift, which is between 8pm and 6am the next day; and
- mixed work shift, which covers periods of both day and night shifts, as long as the night-time period is less than three-and-a-half hours long. If an employee working a mixed work shift works more than these three-and-a-half hours of night work, the work shift shall be deemed as a night shift and subject to the statutory maximum of 42 working hours a week.
Pursuant to the FLL, all employees are entitled to overtime pay if they have worked for more than the statutory hours of the work shift for which they were hired. It also provides that an employee may not work more than three extra hours daily for no more than three days per week, a total of nine legal extra hours per week. The employer must pay the employee double salary for the nine hours of legal overtime worked and for any extra time worked in excess of nine hours during one week the employee will receive triple salary, despite the fact that employers could be sanctioned by the administrative labour authorities for having their employees work for more than nine overtime hours per week or more than three times per week.
Even though, as a matter of law, all employees are entitled to overtime pay, it has become customary for employees holding managerial positions not to claim any overtime pay, because it is implied that their salary already includes and covers the extra time worked in view of the activities they perform. Nevertheless, this should not be understood to mean they are not entitled to overtime pay, because they do have the possibility under the FLL to claim overtime pay with the labour boards. However, material or manufacture workers are used to receiving overtime pay whenever they work overtime, appealing to the maximum overtime allowed by the FLL and the corresponding salary to the extra hours worked.
Overtime compensation is paid along with the salary and any other benefit to which the employee is entitled for a certain period of time. Employers have to be vigilant about paying overtime in a timely manner; otherwise, employees are entitled to claim for their pay before the labour boards with jurisdiction over the workplace.
VII FOREIGN WORKERS
Pursuant to the FLL, a company should employ at least 90 per cent Mexican workers, but can fill the remaining 10 per cent of the companies' positions with foreign workers. Technical and professional workers must be Mexican, except in those cases where the activities to be performed are so specialised that there are no Mexican workers available with the required skills. Nonetheless, this does not apply to directors and general managers. Another exception to the above rule is that physicians, railway employees and employees on any Mexican vessel must be Mexican nationals, and civil aviation crews must also meet the same requirement.
Foreign employees have the same labour, social security and tax rights and obligations as Mexican employees. Employers have to register foreign employees with the Social Security Institute and deduct from their salaries the corresponding amounts for social security contributions and taxes in the same terms as Mexican employees. Foreign employees must also file their tax returns according to the applicable laws.
For a foreigner to work in Mexico, the corresponding working visa must be obtained from the National Immigration Institute and for such purposes the employer must be registered as an employer with the Institute.
Pursuant to the FLL, foreign nationals shall earn the same salary and benefits as Mexican nationals who perform the same activities. Finally, Mexican nationals must be favoured over foreign employees when applying for a promotion under equal circumstances.
VIII GLOBAL POLICIES
The FLL requires that any disciplinary measure has to be set forth in the company's internal work regulations, which have to be drafted and signed by a joint committee comprising an equal number of representatives of both the employees and the employer. For the regulations to be enforceable, the law requires that they be submitted to the labour boards for approval and registration. If employers enforce any disciplinary measures foreseen in the regulations without them being registered with the labour board, these disciplinary measures will be deemed illegal and the employees may be entitled to file a claim with the labour boards against the measures.
The regulations have to be written in Spanish and must contain the requirements provided by the FLL along with the disciplinary measures, which cannot exceed those foreseen in the statute. A reference to compliance with the regulations must be included in the employment contracts to make employees aware of the regulations. As mandated by law, employers have to make sure employees know and are fully aware of the content of the regulations by making them as visible as possible, either on a bulletin board or intranet, or posting them in a visible spot in the workplace or by handing a copy to each employee.
In addition to the aforementioned, it has become a common practice in Mexico for foreign companies to set up their own handbooks and global policies. It is not required to register these documents with the labour boards. In this regard they would not be deemed enforceable over the internal work regulations and their validity would be contingent on not contravening the FLL and the internal work regulations. It is advisable that the internal work regulations incorporate, by reference, the global policies as part of the regulations and guidelines that must be observed by the employees, in order for the company to vest such policies with enforceability effects.
The FLL does not state that employment documents have to be translated into any particular language. However, given that Spanish is the official language in Mexico, it is always advisable to have the documents written in Spanish. Nevertheless, if a company requires a document to be written in an employee's native language it can be done, but it is advisable to have another copy of the contract or document in Spanish.
The sole exception to this is the requirement to accompany any document written in a foreign language that must be submitted in a labour trial with its translation in Spanish. If the party that submitted the document in the trial does not provide the corresponding translation, the labour board may reject the admission of the document.
X EMPLOYEE REPRESENTATION
The FLL does not foresee the formation of works councils. Nevertheless, it imposes the obligation on both employers and employees to form different commissions to deal with several issues at work, such as training, health and safety, drafting the internal work regulations and profit-sharing payments.
In addition to this, the Constitution and the FLL guarantee the right of employees to form or join a union for representing and defending their interests before the employers and to have the union execute a CBA with the employer for the purpose of setting up the terms and conditions of the employment of unionised employees. CBAs are to be negotiated and restated each year with regard to the salaries of unionised employees, and every two years in connection with the employment terms and conditions for these employees. The most important right, and leverage, for unions forcing employers to negotiate the CBAs and to comply with their terms, is the right to call for a strike and to stop activities until their demands are resolved.
XI DATA PROTECTION
i Requirements for registration
On 5 July 2010, the federal government published in the Federal Official Gazette the Federal Law for Personal Data Protection Possessed by Private Persons (DPL), which has been in force since 6 July 2010 and is intended to protect personal data held by private persons – either companies or individuals – in order to regulate the lawful, informed and controlled treatment of the data, with the objective of ensuring the right to privacy as well as the right of informational self-determination of persons. The DPL protects personal data that is subject to process, use or transfer, at a national and international level.
To clarify the content of the DPL, on 21 December 2011, the Ministry of the Economy published in the Federal Official Gazette the Regulations of the DPL (the Regulations), which have been mandatory since 22 December 2011. The Regulations provide in detail the conditions for the compliance and enforcement of the DPL to bring legal certainty to its regulated subjects.
Both regulatory instruments have a direct impact on employees, either by strengthening their right to privacy in relation to their employer and its subcontractors or to establish duties they must comply with in order to preserve the privacy of the personal data that is processed in the course of their activities.
In terms of the DPL and its Regulations, there is no obligation to register the company – in its role of data controller – with the Mexican data protection agency (the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI)) or any other government body. However, diverse obligations should be fulfilled in order to comply with the provisions of the DPL and its Regulations.
The Regulations compel employers to create an inventory of processed personal data to identify its nature – as sensitive, financial or economic personal data requires the written express consent of the data subject to be collected and processed, and should be protected by stronger measures than 'ordinary' personal data. In addition, the inventory may determine the form of the processed data (i.e., whether it is expressed or contained in a digital format, in printed form, or in visual or audio format).
For the collection and processing of personal data, the general rule is that the data subject must be informed by means of a privacy notice3 about the collected data, the purposes for the processing and the data transfers, and the means to exercise the right to access, rectify, cancel and oppose the data processing, as well as the means to express his or her consent to authorise the data processing and transfers. However, the data subject's consent is not required for the processing of personal data to be lawful if it is necessary to comply with obligations derived from a legal relationship, such as a labour contract, entered into by the data subject (employee) and the data controller (employer). Candidates for employment do not fall within this exception as they do not have any legal relationship with the employer, so their consent is required to transfer their personal data to a third party.
The Regulations compel companies to limit access to personal data only to authorised employees owing to their position or functions. The DPL also provides that companies must implement and maintain administrative, technical and physical security measures to protect personal data against damage, loss, alteration, destruction, use, access or unauthorised use (Article 19 of the DPL and Chapter III of the Regulations).
Under Article 48 of the Regulations, the employer is compelled to implement a range of actions to ensure that their employees comply with the DPL and its Regulations such as:
- developing binding and enforceable privacy policies and programmes within the organisation;
- implementing a training and staff awareness programme on the obligations regarding personal data protection, including any modifications that are made;
- establishing an internal system for supervision and monitoring, verification or external audits to test compliance with privacy policies;
- allocating resources for the implementation of privacy programmes and policies;
- providing mechanisms for the enforcement of privacy policies and programmes, as well as for sanctioning lack of compliance;
- establishing measures for tracking personal data during its processing;
- establishing procedures to receive and respond to doubts and complaints from the personal data holder;
- establishing measures for the assurance of personal data, in other words a set of technical and administrative actions that guarantee the responsible party's compliance with the principles and obligations set forth by the DPL and its Regulations; and
- establishing measures for the traceability of personal data, that is, actions, measures and technical procedures that allow for the tracking of personal data while it is being processed.
Privacy regulations should be related to a company's internal labour regulations in order to enforce sanctions for infringement.
ii Cross-border data transfers
In terms of the DPL and its Regulations, companies are not compelled to register their data transfers at the INAI or at any other government agency and, as a general rule, data transfers are subject to the consent of the data subjects (generally granted through the privacy notice). However, the DPL provides for a few exceptions in which the employee's consent is not required for the data transfer:
- the transfer is necessary for preventive treatment or medical diagnosis, the delivery of healthcare, medical treatment or the management of health services;
- the transfer is to companies under the same corporate control (subsidiaries and affiliates under the common control of the data controller), or to a parent company or an associated company that operates under the same processes and internal policies;
- the transfer is necessary under a contract that has been concluded, or a contract to be concluded, in the interest of the employee by the employer and a third party; or
- the transfer is necessary for the maintenance or fulfilment of a legal relationship between the company and the employee (Article 37 of the DPL).
Neither the DPL nor the Regulations require safe harbour registration for data transfers or for carrying out an onward transfer.
iii Sensitive data
In terms of the DPL, sensitive data is defined as data that pertains to the data subject's most intimate sphere, or data that, if misused, could lead to discrimination or cause a serious risk to the data subject. In particular, personal data is considered to be sensitive if it relates to racial or ethnic origin, current or future health status, genetic information, religious, philosophical and moral beliefs, union membership, political opinions, and sexual preference (Article 3, Section VI of the DPL).
Financial and economic data is not included within the category of sensitive data; however, the processing of this data requires the express consent of the data subject, except as provided by law (Article 8, Section IV of the DPL).
The requirement for consent for the collection of sensitive data is more stringent than in the case of non-sensitive data. When sensitive personal data is collected, the privacy notice must address explicitly that it deals with this type of data (Article 16 of the DPL). No databases that contain sensitive data should be created without justifying their creation for legitimate purposes, concrete and consistent actions, or explicit purposes pursued by the regulated subject (Article 9 of the DPL).
If infringements to the DPL are committed in the processing of sensitive data, the penalties can be increased to twice the established amounts (Article 64, Section IV of the DPL).
iv Background checks
Under the DPL and its Regulations, background checks, credit checks and criminal record checks are allowed if the candidate for employment has granted his or her express consent, as such records include sensitive data.
Employers must be aware of processing personal data under the principles of lawfulness, consent, information, loyalty, proportionality, confidentiality and accountability, and must be aware of processing the candidate's or employee's personal data or information on a non-discriminatory basis.
XII DISCONTINUING EMPLOYMENT
It is not easy to terminate an employment relationship in Mexico owing to the principle of 'employment stability' governing employment relations. This principle shall be understood to mean that no employment relationship can be terminated at an employer's will unless it is for one of the causes for termination foreseen in Article 47 of the FLL. Regardless of these causes, the contracts of employees with more than 20 years of seniority can only be terminated when the causes are particularly serious (although the FLL does not provide what can be classed as serious), or when they have repeatedly violated their obligations or committed different violations.
There is also cause for termination when it comes to trusted employees,4 particularly when the employee commits any act that leads to the employer losing confidence or trust in him or her.
When lawfully terminating an employee's contract under a statutory cause, the employer must provide him or her with a written notice stating the causes for termination and the dates in which the actions were carried out, or file it with the corresponding labour boards within five days of the termination date for said authority to deliver it to the employee. In this case, the employer has the burden of proof regarding the causes for termination stated in the corresponding notice.
When terminating an employee's contract with sufficient cause, the employer has to pay only the accrued benefits. If the employer fails to prove the causes for termination or the delivery of said notice to the employee, the termination shall be deemed unjustified as a matter of law regardless of the cause, and the employer must reinstate the employee in his or her role or tender severance pay, consisting of: three months' integrated salary;5 20 days' integrated salary for each year of service; a seniority bonus, equal to 12 days' salary for each year of service;6 and accrued benefits owed to the employee, such as Christmas bonus, holiday earned and holiday premium.
As proving the causes for termination and the delivery of the termination notice is difficult, it has become common practice for employers to negotiate settlements with their employees, which can be documented in one of the following ways:
- having the employee address a unilateral communication to the employer advising his or her voluntary separation from the job (i.e., a resignation letter). A signed payment quitclaim with the breakdown of the benefits paid to the employee should also be obtained from the employee upon payment by the employer of the amount agreed; or
- a termination agreement may be executed. This document can be ratified by the parties with the corresponding labour board, however it is not mandatory.
The second option provides the parties with added legal security since the document issued as a result of ratifying the termination agreement with an authority has the effect of an official judgment.
Whenever an employer wishes to make an employee redundant it has to follow the same process of dismissal or termination without cause described in subsection i. There is no need to notify the government or the employee's union about the redundancy (unless otherwise provided in the CBA), and no social plan, offers of alternative employment or notifications to the employees are required. In a redundancy, the common practice is to offer the employee full statutory severance pay in exchange for the execution by the latter of the corresponding termination documents (termination agreement or resignation and quitclaim).
For collective redundancies, based on the principle of employment stability governing all employment relations in Mexico, the FLL foresees this kind of redundancy in the following scenarios:
- force majeure or acts of God not attributable to the employer, or, where the employer is an individual, his or her physical or mental disability, producing the necessary, immediate and direct termination of the employment relations;
- unaffordability of the business;
- exhaustion of the subject matter of the extraction industry;
- causes foreseen in Article 38 (mining-related causes); and
- legally declared bankruptcy of the employer, if the authorities or creditors resolve the definitive closure of the company or the definitive reduction of their activities.
Carrying forward any collective redundancy would have to be performed through the corresponding special proceeding provided by the FLL and the severance payment would be limited to three months' integrated salary leaving out the 20 days' integrated salary payment per year of work. However, it is important to take into consideration that any collective redundancy can be carried forward outside the special proceeding provided by the FLL, in which case a full severance payment must be paid, including the three months' integrated salary, 20 days' integrated salary per year of work and a seniority premium.
When redundancies are the result of implementation of new production processes involving new automated technologies or installation of new machinery in the workplace, employees are entitled to four months' integrated salary plus 20 days' integrated salary for each year of service, along with the salaries and benefits accrued.
XIII TRANSFER OF BUSINESS
Mexico does not have business transfer laws that protect employees affected by a merger, acquisition or outsourcing transaction as in other jurisdictions. However, the FLL contains a provision that regulates the transfer of employees from one employer to another as a result of a corporate buyout or restructuring of the business. This transfer must take place on a date agreed among the parties (employers) and it has been held recently that the transfer of employees shall take place whenever the whole or the main part of the business is also transferred. This transfer is known as an 'employer substitution', which is a legal proceeding whereby an employer assumes any and all obligations of the former employer of an individual or group of individuals without terminating, suspending or modifying the terms of the original labour relationship.
Under an employer substitution, the employment relations already existing, as well as the terms and conditions attached to them (salaries, benefits, work shift, etc.) cannot be reduced or changed unilaterally by the new employer. If they are somehow affected, employees are legally entitled to claim with the labour boards the granting or observance of their corresponding salaries, seniority, benefits and conditions, or even to rescind the labour relationship with cause and with responsibility on the employer.
Employment substitutions do not require the employee's consent to be effective and do not trigger any severance payments. The law requires employers to deliver a substitution notice to the employees, as well as to the Social Security Institute. When informing the Social Security Institute of the substitution, the National Fund for Workers' Housing is automatically advised of the substitution by the Institute.
The FLL and the Social Security Law provide that the former (substituted) employer is jointly liable with the new employer (substitute) for six months for any obligation existing before the effective date of the substitution.
Finally, the amendment to the FLL contains a provision that forbids the transfer of employees in a deliberate manner with the purpose of reducing their labour rights. In such a case, the employer would be subject to relevant fines.
There has been considerable progress in labour matters in the past year, specifically relating to new outsourcing and tax regulations, the constitutional reform of labour legislation, and the changes to the labour boards as a consequence of this reform, providing more flexibility to employers in the context of a historically overprotective law. Hot topics in 2019 are likely to be the following: transparent collective bargaining; creation and implementation of labour courts, laws and regulations for the new labour judicial procedures, freedom of association; union elections and limitation of unions' power over employers; discrimination; minimum salary; and the transition process from the current administration of justice model to the new model as a result of the constitutional reform of labour legislation.
1 Rafael Vallejo is a partner at Gonzalez Calvillo, SC.
2 The reform has already been published in the Official Gazette of the Federation, and became effective the following day. However, the Federal Congress still needs to make all the necessary legal adjustments to the FLL in order to implement the mandated changes. Those amendments are still being discussed, but are highly likely to be implemented in 2019.
3 The Ministry of Economy published in the Federal Official Daily of 17 January 2013 the Privacy Notice Guidelines, which provide the interpreting criteria of diverse elements of the Data Protection Law and its Regulations, such as those related to the processing of personal data, the elements that the privacy notice must include, the forms of the privacy notice and the ways to deliver it.
4 A trusted employee is any individual who performs activities of management, oversight and inspection within the workplace.
5 Integrated salary comprises any and all entitlements or payments in cash or in kind granted to the employee for the previous 12 months.
6 For calculation purposes, in this case, salary is capped at two times the general minimum wage in force in the region where the employees render their services.