The Employment Law Review: Mexico

Introduction

The Mexican Constitution (the Constitution) is the principal legislation that regulates labour and employment matters in the country. It was enacted in 1917 and has been amended several times; the most recent amendment in respect of labour and employment matters was in 2017. Article 123 of the Constitution is in two sections: Section A regulates private employers and their employees; and Section B regulates government employers and their employees. That said, it should be noted that the provisions relating to labour and employment matters did not exist at the promulgation of the Constitution.

The Constitution provides that international human rights treaties (such as labour treaties) take precedence over constitutional norms if they offer broader protection, but only if there are no constitutional restrictions. If there is a restriction, the restriction will prevail, once the clash of these rights has been analysed.

The Federal Labour Law (FLL) regulates Section A of Article 123 of the Constitution (labour and employment relations in the private sector). It was enacted in 1931 and replaced by the FLL of 1970, a reform that at the time was called The New Labour Law. In 1980, a further reform implemented new procedural rules. The FLL was not amended again until 2012, when various aspects were updated, such as the legalisation of outsourcing and the flexibility of individual employment agreements, as well as modifications to the proceedings before the labour and employment authorities. The most significant labour and employment reform to date occurred in 2019 (regarding labour justice and freedom of association), followed by another in 2021, which prohibits outsourcing as a general rule. The FLL (with few reforms) regulates at a more specific level than the Constitution (i.e., everything concerning labour, employment and procedure).2

When the Constitution was amended in 2017, it established that judicial courts would now be charged with resolving disputes between employees and employers. Before then, federal and state conciliation and arbitration boards under the Executive Branch had jurisdiction over these disputes (formally administrative, materially jurisdictional).3 However, the transfer of jurisdiction from the Boards to the Courts did not begin until the amendment of the FLL on 1 May 2019, which established the new procedure for these actions. Transferring jurisdiction from the Conciliation and Arbitration Boards to the Court System occurred progressively in groups of States.4 State courts must fully commence hearing labour and employment disputes no later than 2 May 2022; while the federal courts must do so no later than 2 May 2023.

Any proceedings that were pending before the conciliation and arbitration boards when the 2019 amendments to the FLL came into effect will be resolved by the conciliation and arbitration boards in line with the provisions that were in force at the time the action commenced. When all pending actions before the conciliation and arbitration boards have concluded, they will be closed definitely.

The 1 May 2019 amendments to the FLL introduced a mandatory preliminary conciliation that must be filed before a decentralised body, namely the Federal Conciliation and Labour Registration Centre or one of the state conciliation centres.5

In addition to the aforementioned conciliation and arbitration boards (which are being phased out) and the new labour courts, the application of labour standards is primarily and almost exclusively the responsibility of the Department of Labour and Social Welfare (STPS).6

Year in review

The FLL has undergone several amendments during the past year. The most significant are the following.

i Teleworking

The first amendment, in January 2021, regulated teleworking or home working. This new labour regime was defined as a subordinate and remunerated activity performed anywhere other than the employer's facilities, which does not require the employee to be present at the workplace, and in which information and communication technologies are primarily used for the employer and employee to communicate instructions. However, only those employment relationships in which more than 40 per cent of the employee's workload is performed at home or at the address chosen by him or her will be subject to these provisions. Teleworking must also be included in a collective bargaining agreement or otherwise in the internal labour regulations of the company or organisation. The change from the face-to-face modality to teleworking must be voluntary and the parties will have the right to agree on the return to the face-to-face modality. The employee's rights to privacy and disconnection are protected.

ii Minimum wage

The second amendment to the FLL, in March 2021, introduced a new article concerning minimum wages. The change consisted of using inclusive language for both female and male workers. A paragraph was also added to indicate that the annual adjustment of minimum wages or their review will never fall below inflation. These are issues that have been observed previously, and this amendment merely places a greater emphasis on issues that are important to highlight.7

iii Outsourcing and employee profit sharing

The third amendment, in April 2021, which focused on outsourcing and employee profit sharing, had the greatest effect on companies.

This reform (as a rule of thumb) prohibits employee outsourcing (i.e., an individual or legal entity that provides or makes its own employees available for the benefit of another). In other words, it prohibits any outsourcing for the purpose of supplying personnel.

Only the outsourcing of specialist services or the execution of specialist projects are allowed.8 Nevertheless, they cannot be included in the beneficiary's corporate purpose or be its primary economic activity.9 Provided the contractor is registered on a public register administered by the STPS, known as a special service or work provider registry (REPSE).10 These limitations and requirements also apply to complementary or shared services or work provided between companies within the same business group.11

To be registered with the STPS, contractors must prove compliance with their social security and tax obligations, in an exercise of interconnection and mutual cooperation on the part of all tax collection and social security authorities. Registration must be renewed every three years and quarterly reports must be submitted. Registration will only be necessary if the contractor's employees who are assigned to the specialist service or work are provided or made available to the contractor.12

The outsourcing of specialist services or the execution of specialist projects must be formalized in a written contract, which denotes the purpose of the services to be provided or the activities to be executed, the approximate number of employees who will participate in the performance of said contract, and the registration data in the REPSE.

As a result of this amendment, employment agencies were limited to recruiting, selection and training activities. Many companies absorbed, via employer substitution, outsourced personnel who performed the same activities as the company's corporate purpose or primary economic activities. Likewise, the contractors of specialist services or of execution of specialist work pursuant to the FLL will be jointly liable with contractors for the performance of the contractor's obligations toward its employees in relation to the services or the work.13

Violations to the new outsourcing provisions will be punishable by fines, stripping violators from the right to make tax deductions and offsets, or imprisonment if incurring the crime of tax fraud (for simulating the provision of specialist services or the execution of specialist activities; or outsourcing personnel).14

The amendment further established that employee profit sharing will have as a maximum limit of three months of the employee's salary or the average amount received during the previous three years, whichever is most favourable to the employee.

Significant cases

The Mexican Supreme Court of Justice, when analysing a proposal to replace binding case law 2/2020 in a plenary session, decided that Congress has the freedom to establish the employment system for federal decentralised agencies, under Section A or Section B of Article 123 of the Constitution, and, therefore, the nature of their duties should not be used as a basis for their determination.

It also decided to replace the binding case law adopted in 1996, which established that the employment relationships of decentralised agencies should be governed by the provisions of Article 123(A) of the Constitution (employment system between private employers and their employees; federal jurisdiction), by virtue of the problems that this criterion has generated.

Another decision of interest was binding case law II.2o.T. J/1 L (10a.), which establishes that the express or implicit rejection of an offer of employment by an employee who has exercised an action for constitutional indemnity makes this unnecessary and, therefore, the burden of proof does not shift to the employee.

Basics of entering an employment relationship

i Employment relationship

The FLL only requires that an individual provide personal, subordinate and remunerated services to another (individual or legal entity) to trigger the presumption of an employment agreement or relationship. This is a juris tantum presumption, so it allows for rebuttable proof. Thus, if the alleged employer denies the existence of an employment contract or relationship, it must then substantiate this claim.

The FLL states that working conditions in which there are no applicable collective labour agreements must be recorded in writing.15 However, the absence of a written agreement does not deprive the employee of any rights arising from employment laws or from the services provided, since the employer will be liable for failing to satisfy this formality.

In general, employment contracts are for a indefinite term. However, fixed-term employment contracts are allowed in the following circumstances: when required by the nature of the work to be provided; when it is intended to temporarily replace another employee, while the subject matter of the work originally contracted subsists; when the work involves mining operations; for Mexican employees working abroad; employees of ships; field employees; resident doctors; and employees or children of employees on company scholarships. A fixed-term employment contract can never be used as a substitute for a probationary period. Other exceptions are agreements for a specific project, seasonal work, trial periods and initial training agreements.

It is recommended that the parties always enter into an employment contract. The parties may modify or change the contract or employment conditions by mutual agreement and provided that this does not imply a detriment to the employee and the minimum working conditions established in the FLL are not violated.

ii Probationary periods

The FLL regulates probationary periods. In employment relationships of an indefinite duration or that exceed 180 days, a probationary period may be established, which may not exceed 30 days, for the sole purpose of verifying that the employee meets the requirements and knowledge necessary to perform the work.

The probationary period may be extended up to 180 days, but only for executive positions, managerial positions, or those who perform other general management or administrative duties or specialist technical or professional work.

During the probationary period, the employee shall receive a salary, social security and benefits for the position he or she holds. At the end of the probationary period, if the employee has not demonstrated that he or she satisfies the requirements and knowledge necessary to perform the work, in the opinion of the employer, taking into account the opinion of the Employer–Employee Committee on Productivity, Training and Training, as well as the nature of the category or position, the employment relationship will be terminated, without liability to the employer.

The probationary period cannot be extended. When the probationary period ends and the employment relationship subsists, it will be considered for an indeterminate time and the duration of the probationary period will be included for calculating seniority.

There are no specific indications in the FLL regarding prior notice for expiry of probationary periods. Prior to expiry, the employer will decide (with the aforementioned details) whether the employee will continue in the position with an employment agreement for an indefinite term.16

iii Establishing a presence

When a foreign company hires Mexican employees to provide its services in Mexico, it must comply with labour, social security and tax obligations. To do this, it must be registered with the corresponding authorities, which will make it necessary for it to be constituted under Mexican corporate laws.

A foreign company that is not registered in Mexico can hire an (independent) contractor. However, taking into account that, as provided by the FLL, it will be jointly and severally liable with the contractor in the event of a breach of the contractor's obligations to its employees, it is advisable that it create a permanent establishment. Further, it must comply in this contract with all the conditions and requirements discussed in Section II.iii, in terms of outsourcing services or the execution of specialist work.

Any company that hires employees must provide the minimum benefits provided by the FLL. The employer may provide employees with benefits greater or in addition to these mandatory benefits, but never less than the minimum established in the FLL. The main minimum legal benefits are minimum wage, paid holidays, vacation days and a vacation bonus, Christmas bonus, profit sharing, social security and overtime.

Employees are entitled to vacation days.17 In addition, employees are entitled to a vacation bonus of at least 25 per cent above the employee's salary during those vacation days. The annual Christmas bonus (aguinaldo) is equivalent to at least 15 days' salary and must be paid to employees before 20 December.

Employees (with some exceptions) participate in the profits of the company, according to the percentage determined by the National Commission for the Distribution of Profits, which is currently 10 per cent. Distribution of earnings to employees must be made within 60 days of the date on which annual taxes are due. The maximum amount of profit sharing is equivalent to three months of the employee's salary or the average share received in the past three years, whichever is greater.

The employer is responsible for withholding and submitting to the tax authority the taxes on wages and other taxable benefits that it pays to its employees.

Restrictive covenants

Non-competition clauses

The FLL does not consider an employee's obligation not to compete, which means that employees are not legally required to refrain from competing with their employer. Consequently, a clause that establishes such a duty in an employment contract could be considered a violation of the principle of freedom of work established in Article 5 of the Constitution and would result in the nullity of that clause.

For this reason, many employers choose to enter into a civil contract with their employees, prohibiting competition and providing compensation for damage in the event of non-compliance. However, if this agreement can be proven to be work-related, it will be considered null and void.

Possibly the most useful practice is for the employer to agree to pay the employee an amount of money for not competing for a defined period and within a specified geographical area within the country. Although this is a common practice, it is still debatable from a human rights perspective.

Wages

i Working time

The maximum working time is eight hours for a day shift (48 hours per week), seven hours for a night shift (42 hours per week), and seven and a half hours for a mixed shift (45 hours per week). For every six days of work, the employee is entitled to at least one day off with full pay.

Day shifts are worked during the period between 6am and 8pm. Night shifts are worked during the period between 8pm and 6am. Mixed shifts are a working day comprising both day and night periods, provided that the night period is less than three and a half hours; if the working period is three and a half hours or more, it will be considered a night shift.

ii Overtime

According to the FLL, overtime must be paid at 100 per cent over and above the employee's standard hourly rate of pay. Overtime may not exceed three hours per day or three times in a week. Extending overtime in excess of nine hours per week requires the employer to pay the employee 200 per cent of his or her hourly rate for the excess hours.

Foreign workers

As a general rule, 90 per cent of the payroll of a Mexican employer should be Mexican employees (not including directors, administrators or general managers).18

Employers are required by law to give preference, whether for vacancies or promotions, to Mexican employees over non-Mexican employees.

There are no restrictions on the duration of the assignment of a foreign employee. The foreign employee will require a work visa or permanent residence permit, which are processed at the National Migration Institute. There is no special provision requiring employers to maintain a register of foreign workers.

The employer does not have to pay state taxes or benefits for a foreign employee. However, the employer must pay social security contributions.

The foreign employee is protected by the FLL on an equal footing with Mexican employees, other than for the aforementioned exceptions, namely 90 per cent of the payroll of a Mexican employer should be Mexican employees, the right of preference and the jobs reserved for Mexican employees.

Global policies

Disciplinary provisions and procedures for their application should be set out in the internal labour regulations, in accordance with the provisions of Article 422 of the FLL. All mandatory issues are listed in Article 423 of the FLL.19

Internal labour regulations must be prepared by an employer–employee committee made up of representatives of both the employees and the employer. With the agreement of both parties, either party may, within eight days of its signature, file the internal labour rules with the Federal Conciliation and Labour Registration Centre, which may comment on them or simply deem the document as registered.

The FLL prohibits discrimination based on ethnic or national origin, gender, age, disability, social condition, health conditions, religion, immigration status, opinions, sexual preferences, marital status, or anything else that violates human dignity.20

The internal labour regulations must be drafted in Spanish. A version in a different language may also be made available, but this version will not be considered the official version nor may it be registered with the authorities.

The internal labour regulations must be printed and distributed to employees and posted in highly visible areas in the workplace. It is recommended that each employee sign a confirmation of receipt of his or her copy.

The disciplinary provisions and procedures for their application, as set out in the internal labour regulations, are binding on the employer and its employees even if they are not expressly stated in the employment agreements.

Parental leave

Female employees are entitled to six weeks' leave before childbirth and six weeks' leave after childbirth (or six weeks in total when adopting a child) and their salary is paid by the Mexican Institute of Social Security. Employees are entitled to paternity leave for five working days (also applicable in the case of an adoption) and the corresponding salary must be paid by the employer.

Translation

All documents relating to the employment relationship must be in Spanish, which is the official language used in Mexico.

Employee representation

The FLL stipulates employer–employee committees for health and safety, productivity, training and education, drafting of internal labour regulations, profit sharing and seniority. As a rule of thumb, a committee will be comprised of an equal number of employer and employee representatives.

The FLL establishes the process for electing union leadership through a personal, free, direct and secret vote. The term of office of the union leadership is determined by the union's by-laws and employee assembly. Trade union representatives do not enjoy any additional rights or protections beyond what is necessary to perform their trade union activities. Employers are required to respect the exercise of trade union activity by their members, as long as they are performed within legal limits. The by-laws of each trade union must establish the frequency with which trade union representatives are required to convene.

Data protection

The protection of personal data is regulated by the Federal Protection of Personal Data in Possession of Private Parties Law and its Regulations.

i Registration

The employer does not have to register with the data protection agency, which is the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI).

Consent is required to process personal data.21 Employers must inform employees by means of a privacy notice what information is collected from them and for what purposes.22

Any employer that processes personal data must establish and maintain administrative, technical and physical security measures to protect personal data, which cannot be less than those it maintains for managing its own information.

ii Cross-border data transfers

In the case of national or international data transfers, the consent of the interested party is also required, except in the exceptions provided by law. Safe harbour registration is not required for data transfers or subsequent transfers.

iii Sensitive data

Personal data is any information relating to an identified or identifiable natural person. Sensitive personal data are those details that affect the most intimate aspects of the owner, or whose improper use may lead to discrimination or pose a serious risk to the owner. Processing is stricter for sensitive personal data.23

iv Background check

Background, credit and criminal record checks can be conducted provided the job applicant has given express written consent. However, this is still a sensitive issue from a human rights perspective.

Discontinuing employment

i Dismissal

The principle of job stability is applicable in Mexico and, therefore, the termination of an employment relationship must be based on one of the causes established in Article 47 of the FLL.

Neither a social plan nor any offers of alternative employment are required. The employer is also not required to give notice of termination to a government authority, work council or trade union, unless provided for in a collective bargaining agreement. However, in principle, the conduct giving rise to the termination and the date, or dates, on which it took place must be stated in the notice of termination, which the employer must give to the employee at the time of dismissal or notify the competent court within five working days. Once the notice has been served, the onus is on the employer to prove the alleged causes.

If the employer does not give the notice of termination to the employee, there is a presumption of an unjustified dismissal. However, this is considered a juris tantum presumption and, therefore, allows for rebuttable evidence. So the employer, even if it has not delivered the notice of termination, may prove the justified reasons for dismissal during the respective procedure.

The parties may reach a conciliatory settlement but, if not, the employee may request before the competent authority to be reinstated in the job he or she was performing, or to be compensated with the equivalent of three months' salary, at the rate corresponding to the date on which the payment is made. A severance of 20 days' salary is payable for each year of service rendered, for those cases established in Articles 49 and 50 of the FLL. A seniority premium and accrued benefits are also payable.

If in the corresponding lawsuit the employer does not prove the cause of the termination, the employee will also be entitled to back-dated salary calculated from the date of dismissal for a maximum period of 12 months. If at the end of this period the proceedings have not been concluded or the judgment has not been enforced, the employee must also be paid interest for 15 months' salary, at the rate of 2 per cent per month, capitalisable at the time of payment. The employee must also be paid what he or she is owed for any statutory or contractual benefit.24

With regard to mass dismissals, the causes of collective termination of labour relations are established in Article 434 of the FLL.25

Transfer of business

The FLL regulates employer substitutions, stating that they will not affect the labour relations of the company. The substituted employer will be jointly and severally liable with the new employer for the obligations under the labour relations and the law, arising prior to the date of the substitution, for six months from the date on which notice of the substitution was given to the union or to the workers. After this period has expired, only the new employer will be liable.

Outlook

An initiative to regulate digital work platforms is currently being discussed by Congress. This could be a hot topic for 2022.

Footnotes

1 Carlos Ferran Martínez Carrillo is managing and founding partner, Ana Cecilia Gerson Anzola is an of counsel and José Alberto Sánchez Medina is an associate at Ferran Martínez Abogados, SC.

2 It includes general principles and individual employment relationships, including labour conditions, party rights and obligations, women's employment and specialist jobs, collective labour relations (trade unions, collective bargaining agreements, strikes), occupational safety and health, employee training, labour authorities, and contentious and voluntary proceedings.

3 The conciliation and arbitration boards have a tripartite composition. They are made up of representatives of the state, employees and employers. The Federal Board of Conciliation and Arbitration works in plenary or in special boards, and resolves labour and employment disputes in all branches of industry and activities of federal jurisdiction, which are listed in Article 123(A)(XXXI) of the Constitution and Article 527 of the Federal Labour Law (FLL). There is only one federal Board of Conciliation and Arbitration, with venues throughout the states of Mexico. Furthermore, the state conciliation and arbitration boards (which are dependent on each state executive power) resolve labour and employment conflicts that do not fall under federal jurisdiction.

4 The first stage of implementation of the new labour and employment justice system began in 2020 and included the states of Campeche, Chiapas, Durango, State of Mexico, Hidalgo, San Luis Potosí, Tabasco and Zacatecas. The second stage began on 3 November 2021 and included Aguascalientes, Baja California, Baja California Sur, Colima, Guanajuato, Guerrero, Morelos, Oaxaca, Puebla, Querétaro, Quintana Roo, Tlaxcala and Veracruz. The third stage scheduled to begin on 1 May 2022, will include Chihuahua, Mexico City, Coahuila, Jalisco, Michoacán, Nayarit, Nuevo León, Sinaloa, Sonora, Tamaulipas and Yucatán.

According to statistics from the federal labour courts for the first stage of the labour amendment, the total number of contentious matters was 9,035. Of these, 1,919 related to individual social security disputes, 41 to special collective disputes, 2,543 to special individual disputes, 306 to strikes and 4,226 to ordinary individual disputes. See Council of the Federal Judiciary, 'Statistics of the Federal Labour Courts of the first stage of implementation of the labour reform', Integral Records Management System (SIGE), CDMX, CJF, 2021, at https://www.cjf.gob.mx/micrositios/uirmjl/ (last accessed 5 January 2022).

5 The STPS recently provided the following statistics on mandatory pretrial conciliation: (1) 76.06 per cent of cases are concluded after the first conciliation hearing; (2) 78.3 per cent of conciliation petitions are submitted by men and 21.7 per cent by women; and (3) 66.3 per cent of conflicts have been reconciled. The 11,149 agreements formalised before the Federal Conciliation and Labour Registration Centre were valued at 1,873,787,971.17 Mexican pesos. The principle causes of conflicts are payment of benefits (42 per cent), dismissal (33.3 per cent), voluntary termination of the employment relationship (15 per cent), right of preference (1.9 per cent) (these figures correspond to 92.2 per cent of total cases; the remaining 7.8 per cent concern seniority, rescinding the employment relationship, and promotions). See Escuela Libre de Derecho, Conference: 'Structure and Perspectives of the Federal Conciliation Center and Labor Registration'. CDMX. ELD. 8 October 2021.

6 Certain secondary or lingering issues are left to other departments, such as the Department of the Treasury and Public Credit, the Department of Public Education, state authorities and their labour bureaus or departments, the National Employment Service, the National Commission of Minimum Wages and the National Profit Sharing Commission.

7 The minimum wage is the lowest amount the employer must pay the employee for her or his work. The minimum wage for 2021 was 213.39 pesos per working day in the geographical area of the Northern Border Free Zone, and 141.70 pesos per working day for the rest of the country. The minimum wage set for 2022 is 260.34 pesos per working day in the geographical area of the Northern Border Free Zone, and 172.87 pesos per working day for the rest of the country.

8 Specialist services or work are those that satisfy specific parts of the activity performed by the contractor and are based on the training, certifications, permits or licences, equipment, technology, assets, capital stock, machinery, risk level, average salary range, experience, among other things, that add value to the contractor.

9 The primary economic activity is that for which, during the year in question, the taxpayer obtains the highest income in relation to its other activities.

10 Registro de Prestadores de Servicios Especializados u Obras Especializadas (REPSE).

11 A business group is a set of legal entities organised under a structure of direct or indirect interest in the capital stock, in which one company maintains control of said legal persons. Also, financial groups incorporated in accordance with the Law to Regulate Financial Groups.

12 Over time, the registry referred to in the preceding paragraph has become a competitive advantage in the Mexican business market. This means that those companies whose corporate purpose is the provision of a specialist service (not involving outsourcing) must obtain proof of registration to be duly engaged. This is not a rule of thumb and does not suggest that all companies must register; it is only for those companies that really need it.

13 The STPS reported that, as of 1 September 2021, the date on which the transitional period to register with REPSE ended, 71,000 companies completed this process. Of these, 93 per cent received a response, of which 88 per cent were positive and the remaining 12 per cent were negative. The latter were informed of the reason for the refusal and given an opportunity to register again. See 'Inicia fase de inspección de cumplimiento del REPSE', IDCOnline, 2021, at https://idconline.mx/laboral/2021/10/12/inicia-fase-de-inspeccion-de-cumplimiento-del-repse (last accessed 12 October 2021). According to the Mexican Social Security Institute (IMSS), as of the same date, at least 2,745,000 employees were transferred through employer substitutions and now have a direct employer. Of this total, 2 million (72 per cent) remained in the same line of business, while 770,000 employees were transferred to a different line of business. Of these, approximately four of every 10 employees left companies that provide personnel services and transferred to transformation, construction or trade companies. See Maria Del Pilar Martinez, 'End to subcontracting boosted permanent employment: IMSS', El Economista, CDMX, 2021, at https://www.eleconomista.com.mx/empresas/Migracion-de-trabajadores-por-subcontratacion-es-de-90-segun-meta-del-IMSS-20210905-0018.html (last accessed 5 September 2021).

14 In October 2021, the STPS announced the beginning of the REPSE compliance inspection phase: STPS, Bulletin 105/2021, CDMX, 11 October 2021.

15 The employment contract must contain the employer's and employee's name, nationality, age, sex, marital status, personal identification code, federal taxpayer identification number and address; whether the employment relationship is for a specific project or time frame, seasonal, initial training or indefinitely, and, where appropriate, if it is subject to a probationary period; the service or services to be provided, which shall be determined as precisely as possible; the place or places where the work is to be provided; the duration of the working day; the method of payment; the salary; the date and place of payment of the salary; an indication of whether the employee will be trained according to plans or programmes established or to be established by the company, in accordance with the provisions of the FLL; and other working conditions, such as days off, vacation days and others agreed by the employee and the employer; the designation of beneficiaries for the payment of wages and benefits accrued and not received upon the death of the employee or those generated by their death or disappearance resulting from a criminal act. It is recommended that the contract also provide the start date of the employment relationship for the purposes of calculating seniority, and include any benefits in addition to the statutory benefits given to the employee. It is also appropriate to include clauses on intellectual property, handling of confidential information and protection of personal data.

16 It is advisable that employers, with the participation of an employer–employee committee, keep a record of how the employee is performing so as to be well prepared if litigation arises at some point. Recommended paperwork for these situations include (1) termination agreement and (2) release.

17 After the first year of service, for a period that must be at least six days, which is increased by two days, up to a maximum of 12, for each subsequent year of service. After the fourth year, the vacation period will increase by two days for every five years of service. The number of vacation days per year of service varies if the employees are under 18 years of age or in a specialist position.

18 Technicians and professionals must be Mexican, unless there are none with a specific speciality, in which case the employer may temporarily hire foreign employees, in a proportion that does not exceed 10 per cent of those with the specific knowledge and skills. The employer and foreign employees will have the joint and several obligation to train Mexican employees in the speciality in question. Doctors in the service of companies, ship employees, aircraft crews and railway workers must be Mexican.

19 Even though, technically, these types of regulations are not mandatory, they are required for labour and employment inspections carried out by both federal and local authorities. Despite not being mandatory, they are highly advisable for companies doing business in Mexico.

20 It also requires employers to implement protocols, in agreement with employees, to prevent gender discrimination and to address cases of violence and sexual harassment, as well as to eradicate forced and child labour.

21 Save, among other cases, when it is intended to comply with obligations derived from a legal relationship between the interested party and the controller (as in the case of an employment contract; however, this exception would not apply to job applicants).

22 The privacy notice must contain information required by the Federal Protection of Personal Data in Possession of Private Parties Law.

23 Databases containing sensitive personal data cannot be created without justifying their creation for legal, concrete and specific purposes in accordance with the activities or explicit purposes pursued by the employer.

24 The parties may also enter into an agreement to terminate the employment relationship, which may be ratified before the competent authority. This ratification is convenient because the agreement is then considered to be a final judgment, but it is not mandatory.

25 Force majeure or acts of God not attributable to the employer, or his or her physical or mental disability or death, which produces as a necessary, immediate and direct consequence, the termination of employment; the egregious and manifest unaffordability of operations; the exhaustion of the material in an extraction industry; in those cases of labour relations in mining operations that lack affordable minerals or for the restoration of abandoned or spent mines; legally declared bankruptcy or insolvency, if the competent authority or the creditors decide on the definitive closure of the enterprise or the definitive reduction of work. In these cases, with the exception of mining (which may be contracted for a specified period or specific piece of work), employees are entitled to three months' pay and a seniority bonus. If the introduction of new machinery or work procedures results in the reduction of personnel, in the absence of an agreement, the employer must obtain court authorisation. The affected employees are entitled to a severance of four months' salary plus 20 days for each year of service rendered or the amount stipulated in the employment contracts if higher, and to a seniority bonus.

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