Minimum Working Conditions
The FLL provides for the following minimum benefits, which may not be waived whatsoever:
1. Social Security Benefits: all employees must be registered with and contribute to the:
- Mexican Institute of Social Security (IMSS);
- National Workers Housing Fund Institute (INFONAVIT);
- Retirement Savings Programme; and
- National Fund Institute for Workers’ Consumption (INFONACOT), which is a governmental institution that provides financial aid to employees for the acquisition of goods and services. This is mandatory as of 1 December 2013.
2. Profit Sharing: employees are entitled to share in the employer’s profits, currently fixed at 10% of the company’s gross, pre-tax income;
3. Paid Mandatory Holidays: FLL requires that employees be paid for government holidays;
4. Vacation Premium: employees are paid an extra 25% of the salary to which they are entitled during their vacation period;
5. Christmas Bonus: employees have the right to a bonus of at least fifteen days of their daily base salary, which must be paid by no later than 20 December of each year.
The minimum salary is defined as the lowest minimum cash payment that a worker may receive for services rendered in a given time period. Since 1 October 2015, minimum general salaries and minimum professional salaries are established in one unique region throughout the country.
As of 1 January 2014, the minimum general salary in Zone A was MXN$67.29 (approximately US$3.60) per day, and the minimum general salary in Zone B was MXN$63.77 (approximately US$3.41) per day.
As of 1 January 2015, the minimum general salary in Zone A was MXN$70.10 (approximately US$3.75) per day, and the minimum general salary in Zone B was MXN$66.45 (approximately US$3.56) per day.
As of 1 October 2015, the minimum general salary in the Unique Zone was MXN$70.10 (approximately US$3.75) per day.
As of 1 January 2016, the minimum general salary in the Unique Zone was MXN$73.04 (approximately US$3.91) per day.
As of 1 January 2017, the minimum general salary in the Unique Zone was MXN$80.04 (approximately US$4.21) per day.
As of December 2017, the minimum general salary in the Unique Zone is MXN$88.36 (approximately US$4.65) per day.
As of January 2020, the minimum general salary in the Northern Border Zone is MXN$185.56 (approximately US$9.04) per day, and the minimum general salary in the rest of the country is MXN$123.33 (approximately US$6.19 per day).
The minimum general salary is set by the tripartite National Commission for Minimum Salaries, considering the basic amount necessary for the satisfaction of, among other things, the following needs of each family:
- material needs such as housing, household furnishings, food, clothing, and transportation;
- needs of a social and cultural nature, such as attendance at athletic events, training schools, libraries, and other cultural presentations; and
- needs related to the education of children
The minimum salary is set annually and becomes effective on 1 January. Under special circumstances, it may be modified during the year at the request of one of the parties in the tripartite National Commission, if it is deemed by the Commission as a whole, that the economic circumstances warrant it.
On 28 January 2016 a constitutional reform on deindexation of the minimum salary entered into force, pursuant to which said wage ceased to be the unit of account, index, base, measure or reference to determine the amount of the obligations and hypothesis established in federal and local laws, as well as any other legal provisions arising therefrom. Such is the case of Title Sixteen of the FLL, which takes the general minimum salary as reference for calculation of fines deriving from violations to labour standards.
On 10 January 2018, the National Institute of Statistics and Geography (INEGI) announced the new value of the Unit of Measure and Update (UMA) that will govern from 1 February 2018 to 31 January 2019: the daily value will be MXN$80.60, MXN$2,450.24 monthly, and $MXN 29,402.88 annually; this is US$4.24 daily, US$128.96 monthly, and US$1,547.47 annually.
Other Requirements Concerning Salaries
Salary includes cash payments for wages, plus bonuses, housing provided by the employer, premiums, commissions, in-kind benefits, and “any other amount or benefit that is given to the worker for his work”; it does not include profit-sharing payments. Salaries of workers may not be set below the minimum established by law. Salaries are established on the principle of equal pay for equal work, provided productivity is the same.
Manual labourers must be paid at least weekly; other workers must be paid every two weeks. A Christmas bonus, consisting of at least 15 days’ salary, is considered as part of the salary and should be paid each year before 20 December.
The right to collect a salary is irrevocable. Salaries must be paid directly to the worker in cash, in currency of legal tender. Workers need to authorise in writing an alternative payment option like direct deposit or check. In-kind benefits (e.g., lodging and board) must be appropriate for the personal use of the worker and his family. Fines may not be collected from workers’ salaries, and only some specific deductions, listed in Article 110 of the FLL, are permitted.
Under no circumstances may an employer charge interest on workers’ debts to the employer, nor may workers’ salaries be garnished except for alimony payments to a spouse or other family members. In the case of insolvency of a business, salaries earned over the last year of operation and the compensation due workers have priority over any other credit, “including those backed by real estate, tax liabilities, and amounts owed the Mexican Institute of Social Security, and especially over all the assets of the employer.” Workers may collect debts from the employer directly, through the conciliation and arbitration boards, without need of becoming party to insolvency, bankruptcy, or probate proceedings.
Maximum Working Week
The work shift is the time in which the worker is at the disposal of the employer in order to perform work. In most instances, the work shift corresponds to the time interval the worker actually spends working, but the two concepts may differ where the worker is unable to complete the work shift because of reasons outside of his control.
a. Work Shifts
Mexican labour law recognises three work shifts:
- the day shift, with a length of eight hours, between 6:00 a.m. and 8:00 p.m.;
- the night shift, lasting seven hours, between 8:00 p.m. and 6:00 a.m.; and
- the swing or “mixed” shift, lasting seven and one-half hours, divided between the day and night shifts, provided that less than three and one-half hours of the time is during the night shift.
b. Rest Periods
Workers are given a rest period of at least one-half hour during a work shift.
c. Hours Per Week
The principle of a 48-hour workweek, which presupposes one complete day of rest with full pay, is officially the law of the land. However, in some employment relationships, such as in government service, the banking sector, and in much of the private sector, a 40-hour workweek has been established. The arrangement of the 40 hours of work may be over five and one-half days or any other equivalent arrangement.
It is incumbent on the employer to maintain records of the effective length of the workday should the worker claim to have worked overtime. Section XI of Article 123 of the Constitution limits overtime to 3 hours per day and provides that it may not be performed on more than 3 consecutive days. However, pursuant to a binding opinion issued by the Supreme Court of Justice, overtime must be calculated and paid on a weekly basis; this means it should not exceed 9 hours a week.
Furthermore, overtime must be paid at twice the hourly rate of pay. Article 68 of the FLL establishes that if overtime extends beyond 9 hours per week, the overtime beyond 9 hours must be paid at triple the hourly rate. Persons under 16 years of age and pregnant or nursing mothers, if it endangers the worker or the child’s life, are not permitted to engage in overtime work.
Employer’s Obligation to Provide a Healthy and Safe Workplace
Title IX of the FLL deals with occupational safety and health. Under these provisions, employers have the obligation to set up enterprises in accordance with the principles of worker safety and health, and to take necessary actions to ensure that contaminants do not exceed the maximum levels allowable under the regulations and instructions issued by competent authorities. Employers are also obligated, when required by the authorities, to make physical modifications in facilities to accommodate the safety and health of workers. Likewise, employers must keep first aid medications and medical supplies at the workplace and instruct personnel on how to administer them. If there are more than 100 workers in a given enterprise, an infirmary with appropriate staff must be established. Enterprises employing more than 300 workers must have a hospital staffed with adequate medical and auxiliary personnel.
According to the FLL, companies with over 100 workers are required to have a preventive program for safety and hygiene; companies with fewer workers must provide the Ministry of Labour and Social Welfare (STPS, by its acronym in Spanish) with a list of their safety and hygiene obligations. Companies not in compliance could be given up to a year’s grace upon submission of a written plan detailing how they plan to come into compliance. Independent private sector units, such as insurance companies, may certify compliance with workplace standards, following authorisation by the STPS, forestalling the need for inspections.
Under the FLL, employees have the right to perform their duties in a safe workplace. It is also the employee’s right and obligation to require the employer to form an employee Safety and Health Committee within each facility, and to participate in it. Similarly, employees have the right to refuse to perform dangerous work.
The provisions of the FLL have been implemented through the new Federal Occupational Safety and Health Regulations (the “Regulations”), issued by the STPS on 2014, which entered into effect in February 2015. These Regulations obligate employers to ensure workers’ safety and to keep them informed of risks in the workplace. In addition, the Regulations require periodic tests on various equipment, risk studies concerning matters such as noise levels and air quality, communication with workers concerning risks, worker training, and in some cases, the purchase of additional equipment to comply with the various requirements. The Regulations also cover transportation of primary materials and hazardous materials, including biohazards, and safety in the agricultural sector, and establish rules concerning labour by pregnant women and minors.
Moreover, the Regulations provide for the following employer’s obligations:
- the employer – employee Safety and Hygiene Committee has to prepare an annual job programme.
- keep monthly inspection certificates of a six-month period or annual report.
- conduct a study to determine the risk level of fire or explosion for each substance or material handled while on the job;
- keep certificates of training and teaching to prevent, protect from and extinguish fires;
- prepare and keep an emergency evacuation plan in case of fire;
- implement operation and safety procedures to avoid fire risks;
- keep a list of the type of fire equipment, including instructions on how to use and reload the equipment;
- have a certificate of brigade against fire;
- highlight emergency exits within the facilities, adequate for handicapped persons working in the company;
- conduct a fire drill at least once a year; and
- keep a record and statistics of occupational injuries during the last year and certificate of notice to the safety commissions.
Finally, many technical rules regarding occupational safety and health are set out in workplace safety standards known as Official Mexican Standards (NOMs, by their acronym in Spanish). These Standards are mandatory, and the Secretary has the authority to enforce their compliance. The most recent one is the NOM-035 on psychosocial risk factors at work, identification, analysis and prevention.
From 23 October 2020, all employers are obliged to prevent work-related stress by constantly evaluating the organisational environment; applying control measures, such as the practice of medical examinations and records.
The Federal Conciliation and Arbitration Board is responsible for resolving conflicts that arise from employer noncompliance with occupational health and safety responsibilities. The state authorities must cooperate with federal authorities.
Employees may also raise a claim to the Workers’ Protection Agency or to the Labour Inspection of the STPS (the “Labour Inspection”) against the employer’s failure to comply with its health and safety responsibilities.
The Ministry may impose Administrative Sanctions for breach to the Federal Regulations or to the provisions of the FLL on health and safety matters, consisting of fines that may range from 50 to 5,000 times the Unity of Measure and Update (UMA), per violation and per employee affected, regardless of the sanctions of a different nature that may proceed according to the laws.
Protection from Retaliation
There is no special protection against retaliation under Mexican laws.