employers beware: major changes in mexican labor and ... · employers beware: major changes in...

Employers Beware: Major Changes in Mexican Labor and Employment Law

Tuesday, December 11, 2012 1

Presenters

Moderator

Carmen Plaza de Jennings, Partner and Head, Latin America Practice Group, Hirschfeld Kraemer LLP, San Francisco, CA cpdjennings@HKemploymentlaw.com

2

Presenters

Speakers

Monica Bichara, Legal and Corporate

Security Director, The Home Depot - Mexico Division

Juan Carlos de la Vega, Partner, Santamarina y Steta, Monterrey, Mexico jdelavega@s-s.mx

3

Presenters Speakers

Fernando Alfonso Gonzalez Arriaga, Senior Associate, Santamarina y Steta,

Monterrey, Mexico fgonzalez@s-s.mx.

Andrés Rodríguez, Partner, Santamarina y Steta, Mexico City, Mexico arodriguez@s-s.mx. 4

Presenters

Speakers

Mario Alberto Yañez Cariño, Senior Associate, Santamarina Y Steta, Mexico City, Mexico myanez@s-s.mx

5

Introduction to Amendments to the

Mexican Federal Labor Law

6

Outsourcing (Juan Carlos de la Vega)

• Definition • Impact in the operating/services

companies structure. • Duty to share profits and effects in

2012 • Alternatives • Impact in specialized and general

outsourcings • Recommendations

7

New Ways of Hiring (Andrés Rodríguez)

• In addition to employment agreements for indefinite term, fixed term, and to perform a task, we have INITIAL TRAINING AGREEMENTS

• Training agreements can be signed for up to 3 or 6 months

• Extension of probation periods in indefinite term agreements

• Pay per hour system

8

New Justified Termination Grounds (Andres Rodriguez)

• Violence or ill treatment against clients or suppliers

• Harrasment, including sexual harrasment

• Lack of documentation needed to perform the job

• Reduction of burdens in termination for cause processes

9

New Procedural Rules (Mario Yañez)

• Litigators must be lawyers • E-mails and electronic data as

evidence • Limitation to lost wages • Burden of proof in case of overtime

claims • Social security individual

proceedings

10

New Employer’s Duties (Fernando González)

• Install and operate working places based on NOMs

• Place collective bargaining agreements in public places

• Work sites with 50+ employees must be adapted for disable working people

• Mandatory affiliation to FONACOT • Leave of absence with pay for fathers

in case of a new born 11

New Prohibitions for Employers (Fernando González)

• Refuse to admit employees due to ethnic origin, nationality, gender, age, disability, social condition, health condition, religion, opinions, sexual preference, marital status or any other discriminatory aspect

• Request pregnancy certificates

12

New Prohibitions for Employers (Fernando González)

• Terminating a female employee or forcing her to resign because of pregnancy, change in marital status or because she must look after children

• Sexual harrasment and any other kind of harrasment

13

New Prohibitions for Employers (Fernando González)

• Allow harrasment at the workplace • Avoid the formation of unions or the

performance of union activities through implicit or explicit punishments

14

New Rules on Promotions (Fernando González)

• Training as first criteria

15

Additional Protections for Working Women

(Fernando González)

• Equal right and treatment. • In case of sanitary contingency • Leaves of absence in case of

maternity. • Adoption

16

Fines for Violations of Federal Labor Law

(Fernando González)

• Basis for calculation is the General Minimum Wage

• Amounts up to US $30,000 • Recurrency • Fines applicable per affected

employee

17

Union Matters (Juan Carlos de la Vega)

• Recognition of the autonomy union principle

• Publicity to union records • All collective bargaining agreements

will be public

18

Union Matters (Juan Carlos de la Vega)

• All internal work regulations will be public.

• Elimination of provisions limiting employers to hire employees of one single union.

19

In House Counsel’s Perspective (Monica Bichara)

• Outsourcing and insourcing risk analysis – Cross functional team

• New structures need to be designed – no one size fits all

• Operational, HR and PR functions should be taken into account

20

In House Counsel’s Perspective (Monica Bichara)

– Outsourcing and services agreements with 3rd parties

• Language and structure • Additional bonds/guarantees • Pre and post-hiring due diligence

– Monitoring next 18 months is crucial • Well publicized law with effervescence in

different sectors • Challenges by unions and individuals

21

In House Counsel’s Perspective (Monica Bichara)

• New ways of hiring – Understand and communicate new

flexibility to operations/HR business partners

• New justified termination grounds – Termination for cause continues to

place burden on employer – Adjust termination process to

accommodate new changes 22

In House Counsel’s Perspective (Monica Bichara)

• New procedural rules – Limitation to lost wages

• Game Changer- limiting exposure will provide incentive for earlier settlements and should reduce overall employee litigation reserves

23

In House Counsel’s Perspective (Monica Bichara)

• New employer duties and prohibitions – Publish collective bargaining

agreements and official internal work rules • Could create conflict with internal company

policies and procedures

• Review with transparency rules in mind

24

In House Counsel’s Perspective (Monica Bichara)

• More robust rules on non-discrimination, equal-employment opportunities and harassment issues will be familiar to U.S. and Canadian counsel − Independent certifications – Ministry of Labor and Social Security:

• “Family Friendly Company” • Inclusive Company • Mexican Norm Certification of Equal Labor

Opportunities 25

In House Counsel’s Perspective (Monica Bichara)

• Cont’d

– Mexican Center of Philanthropy • “Social Responsible Company”

26

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