Employers Beware: Major Changes in Mexican Labor and Employment Law Tuesday, December 11, 2012 1
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 [email protected]
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 [email protected]
3
Presenters Speakers
Fernando Alfonso Gonzalez Arriaga, Senior Associate, Santamarina y Steta,
Monterrey, Mexico [email protected].
Andrés Rodríguez, Partner, Santamarina y Steta, Mexico City, Mexico [email protected]. 4
Presenters
Speakers
Mario Alberto Yañez Cariño, Senior Associate, Santamarina Y Steta, Mexico City, Mexico [email protected]
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
Please Complete Our Survey Please take a few minutes to complete the survey that should appear on your computer screen immediately following the webinar.
To listen to this webinar again or to any past ELA webinars, please visit our website at: www.employmentlawalliance.com.
The ELA is not authorized to give Continuing Education credit for its webinars; however, a Certificate of Attendance and supporting materials are now posted on the ELA website (click this webinar’s title; the link is on the landing page). Attendees seeking HRCI or SHRM credit should submit the materials directly to HRCI at www.hrci.org or to SHRM at www.shrm.org. 27