2. Labour and Employment Law Requirements
a) Employer Policy Requirements
The applicable legislations for Labour law in Mexico derive from the Constitutional provisions on social rights for workers in Article 123.
Article 123 of the Mexican Constitution provides protection for the collective interests of workers by establishing general employee rights that seek a balance in the employer-employee relationship; including but not limited to the following:
(1) setting maximum limit of working hours per week;
(2) equality rights;
(3) weekly rest days;
(4) mandatory rest days in the year (holidays or long weekends);
(5) employees’ right to profit sharing;
(6) maternity leave;
(7) limitations on work of minors;
(8) limitations on work of pregnant and breastfeeding mothers;
(9) paid vacation periods, as of 2023 this right has been updated and the number of days in that period have been increased;
(10) right to unionize, to strike and lockout, and right to collective bargaining, including recent changes implemented in 2019 such as freedom of association;
(11) minimum salaries;
(12) limitations on work shifts;
(13) overtime;
(14) social security rights (such as the establishment of a housing fund for workers);
(15) Christmas bonus;
(16) mandatory training;
(17) labour authorities (competence and jurisdiction); amongst others.
Furthermore, the following Mexican laws govern all labour relationships in Mexico, regardless of whether the workers are Mexican citizens:
Federal Labour Law (FLL), 1970.
Social Security Law, 1997.
National Workers Housing Fund Institute’s Law, 1972.
The FLL is the most important employment legislation in Mexico. It defines a labour relationship as the rendering of a subordinated personal service by one person to another, in exchange for a wage. The main element of any labour relationship is subordination which the Mexican Supreme Court has defined as the employer’s legal right to control and direct the employee and the employee’s duty to obey the employer. Once a labour relationship exists, the rights and obligations provided for by the FLL automatically enter into legal force; regardless of how the agreement is defined by the parties.
FLL entitles employees to the following minimum mandatory fringe benefits: (1) a year-end bonus equivalent to at least 15 days’ wages, payable prior to December 20 of each year; (2) a yearly vacation period, the length of which depends on the employee’s seniority, starting at 12 days for the first year of services, period which increases 2 days every anniversary; (3) a vacation premium of 25% of the salary payable to the employee during the vacation period; and (4) mandatory paid holidays on January 1, the first Monday of February to commemorate February 5, third Monday of March to commemorate the birth of Benito Juarez, May 1, September 16, third Monday of November to commemorate November 20, December 1 (every six years when a new President is elected), December 25, and any other holidays established by federal or state law.
Additionally, the Social Security Law is the legislation that contains the stipulations intended to provide further social benefits for the collectivity; specifically aimed for the employers and the employees. The Social Security Law covers the various rights and duties of both employee and employer with respect to retirement funds and healthcare benefits provided for by the authorities.
The National Workers Housing Fund Institute’s Law was created with the purpose of providing support for the employees in order to acquire their own homes. A National Housing Fund was created for employees in order for them to have access to a government run mortgage (credit institution) and acquire their own homes. There is an obligation from the employer to deposit the corresponding portion of the employee’s salary to the National Housing Fund for the employee to qualify for the mortgage option (amongst others) In 2022, the Workers Housing Fund Institute modified increased the authorised amount of the mortgage for the employees.
The Mixed Committee to Determine the Workers’ Share in the Company’s Profit must follow the new provisions regarding profit sharing, since the reformed Section 127 of the FLL indicates: The amount of the profit-sharing will has as a maximum limit three months of the employee’s salary, or the average of profit sharing received in the last three years; the amount that results more favourable to the employee will apply.
b) Employee Training Requirements
Among the labour and social security obligations that must be complied with in Mexico, every employer must integrate and formalise the collegiate organisms named “mixed committees” (composed by employer and employee representatives, which shall be incorporated in the work centres.
Of course, the Integration, registry and operation of the mixed committees is mandatory and is a matter of inspection by the federal and local labour authorities.
The mixed committees which mandatorily should be integrated are: (1) Health and Safety at the Workplace Mixed Committee; (2) Teaching, Training and Productivity Mixed Committee; (3) Mixed Committee for the Preparation of the Internal Work Regulations; (4) Mixed Committee for the Preparation of the General Seniority Chart; and (5) Mixed Committee to Determine the Workers’ Share in the Company’s Profit.
Teaching, Training and Productivity Mixed Committee
Pursuant to the FLL, every employer has the obligation to provide training to its employees and these are bound to take the training that may allow them to improve their lifestyle, labour competence and productivity.
The Teaching, Training and Productivity Mixed Committee finds its legal basis on Section 153- E of the FLL, which establishes that it shall be incorporated in those companies having more than 50 employees.
When so agreed between the parties and considering the needs of the company due to the number of premises, its technological characteristics, and the number of workers, more than one committee may be integrated, or mixed subcommittees may also be incorporated.
Integration: Teaching, Training and Productivity Mixed Committees must be integrated with the same number of employer and employee representatives, and the number of said representatives will be determined by mutual agreement between employer and employees or by the employer and the union holding the Collective Bargaining Agreement.
Purpose: These mixed committees are the group responsible for monitoring, implementing, operating and improving the teaching and training systems and programs, as well as taking actions trending to increase productivity in each company.
Formalisation: The committee should be incorporated through format DC-1 (“Report on the Incorporation of the Teaching, Training and Productivity Mixed Committee”).
It is not necessary to file said format before the Ministry of Labour and Social Welfare, because together with the Teaching, Training and Productivity Plans and Programs (Format DC-2), as well as with the Skills Certificates (Format DC-3), they should be kept in the company’s files and be shown to the labour authority when so required, in exercise of its faculties of inspection.
c) Employment Agreements
Written employment agreements in Mexico are mandatory. Every employee must enter into an individual employment agreement with the employer and set out the terms and conditions of the employment (in Mexico, there’s no ‘employment-at- will’). An employer must have justified cause (as defined by the FLL) in order to terminate the employment relationship, if not, employer must compensate the unjustly terminated employee accordingly (FLL stipulates the amount for severance payments). Notwithstanding the previous statement; in the given case that an employment relationship exists and there is no written agreement; the employee’s constitutional and statutory rights are not waived or affected by this omission.
Article 24 of the FLL provides that working conditions must be established in writing, and each party must be provided with a copy of the employment agreement. According to Article 25 of the Federal Labour Law, an employment agreement must contain:
(1) the employee’s and the employer’s name, nationality, sex, civil status, Unique Population Registry Code (“CURP”) and address;
(2) whether the employment agreement is executed for an indefinite term, for a specific job or term, for initial training and/ or for season, and/or subject to a probationary period;
(3) a description of the services to be provided;
(4) the place or places where the work is to be performed;
(5) the length of the work shift;
(6) the salary and day and place of payment;
(7) that the employee will undergo training pursuant to the procedures and programs established by the employer as required by the Federal Labour Law;
(8) The designation of beneficiaries according to article 501 of the FLL, in case of death or disappearance due to a criminal act suffered by the employee;
(9) other terms and conditions of employment, such as days off and vacations agreed upon by the employee and the employer.
The employer is responsible for the execution of the agreement. The fact that there is no signed employment agreement does not deprive the employee of his or her rights under the law.
In the case of Unions, there is an additional agreement that is negotiated and entered by the Union and the employer to promote the creation or improvement of the labour conditions for the employees as a collectivity and in turn the employer obtains a loyal and solid workforce. The Collective Bargaining Agreement (CBA) is renewable and cannot contain provisions that stipulate the waiver of the basic constitutional and statutory rights or benefits for the employees as a collectivity. It can always be more favourable than the constitutional and statutory requirements but never less than the latter.
CBAs must also be in writing and contain the following information:
- names and domiciles of the parties executing the CBA;
- the address of the facilities where the CBA will be applicable;
- duration or whether it is for an indefinite term or specific job;
- work schedules;
- rest days and holidays;
- salary amounts;
- employee training;
- initial training for new hires;
- integration and operation of the Employee/Employer Committees as established by law;
- other conditions agreed upon by the parties.
Nowadays workers have freedom of association, having the necessary protection to not be obliged to be part of a union, to freely elect the union`s officers through democratic processes and to receive complete and detailed information about the finances of the union and its administration. Workers, also have the possibility to express their will to accept or not to accept the withholding of union dues by the employer; the exclusion clauses cannot be included in the CBAs and workers cannot be sanctioned and lose their employment due to their resignation to the union. However, the closed shop close remains in the law.
Management employees, however, may be expressly excluded. Although management employees are allowed to have their own CBAs, as a practical matter, no unions for such employees exist.
As a result of the recent amendment to the Federal Labour Law, the registration of Unions will be performed by the Federal Center of Conciliation and Labour Registry (hereinafter referred as the “Federal Center”). It is important to mention that CBAs and union matters will be of federal jurisdiction. Therefore, local authorities lose their authority on this regard, regardless of the industry or the location in which the work center is located or the scope of the union. For its registration, the Union must file necessary documentation to prove they were incorporated through a democratic process.
Also, the execution of CBAs shall have the support of workers that will be covered by them, be expressed through the personal, free, and secret vote of workers. Likewise, the union must have the Representation Certificate issued by the Federal Center.
3. Corporate Law Requirements
a) Compliance for Incorporation
Incorporation
The following steps are necessary for the incorporation of a company in Mexico:
Defining the corporate scope: Defining in a wide and detailed way the corporate scope of the company to be created.
Determining the corporate regime:
- Indicating the corporate regime with which it is intended to operate (S.A., S.A. de C.V., S.R.L. de C.V., etc.). Also, the way in which the company will be represented (Sole Administrator, Board of Directors, etc.);
- Appoint the company’s tax domicile in Mexican territory;
- Obtaining the Powers granted by the company, the type of POAs and the persons to whom they will be granted must be mentioned;
- For the POAs granted by the company through agreement of the Assembly or collegiate administration organism to take effect, will require notarizing the corresponding section of the minutes where their granting appears, duly signed by those who acted as President or Secretary.
Determination of patrimonial situation: At this point, you must have cleared the shareholders or associates who will constitute the company, as well as the percentage of shares each of them will hold (at least 2 shareholders are required).
Incorporation formalities: Pursuant to Section 5 of the Mexican Law of Commercial Companies, “the incorporation of companies must be notarized, as well as their amendments. The Notary Public shall not authorise the public deed or policy when the bylaws or their amendments contravene the provisions of this law.”
According to Section 6 of the Mexican Law of Commercial Companies, the Incorporation Deed must contain the following:
(1) Names, nationality and domicile of the natural or legal persons who incorporate the company;
(2) The company’s corporate scope;
(3) Its legal name;
(4) Duration, which may be indefinite;
(5) Amount of the capital stock;
(6) The expression of what each shareholder contributes in cash or other assets; the value attributed to these and the criteria followed for its enhancement. When the capital is variable, so will it be expressed indicating the minimum that is set;
(7) Domicile;
(8) The manner how the company will be administered and the power of the administrators;
(9) The appointment of administrators and the designation of those who will carry the social signature;
(10) How to make the distribution of profits and losses among the members of the society;
(11) The amount of the reserve fund;
(12) Cases where the society will be liquidated in advance; and
(13) The bases for the liquidation of the society and how to proceed to the election of the liquidators, when they have not been designated beforehand.
All requisites referred to in this Section and the other rules established in the public deed regarding their organisation and operation will form the company’s Bylaws.
Registration of every company, as well as obtaining the Taxpayer Registry Number (Tax ID or RFC) and the advanced electronic signature (e. firma) are performed before the Tax Administration Service (SAT).
It is important to mention that in order to conclude the incorporation of a company, it is mandatory that the General Assembly approves it, in order to continue with the notarization and registration of the Minutes of the Meeting of the Board and of the Bylaws (Section 101 of the Mexican Law of Mercantile Societies.
Section 15 of the Commercial Code provides that those companies legally incorporated abroad that establish in Mexico or having an agency or branch, may conduct business, subject to the special provisions of said Code regarding the creation of their establishments in Mexican territory, their commercial operations, and the jurisdiction of the Nation’s courts.
The legal incorporation of foreign companies may be accredited with a certification indicating that they are authorised and incorporated according to the laws of the country where they were incorporated, pursuant to Section 17, Subsection I and Section 17 A, Subsection a) of Chapter Four of the Foreign Investments Law.
b) Post Incorporation Registrations
- Company’s registration before the Tax Administration Service (SAT);
- Company’s registration as employer before the Mexican Institute of Social Security (IMSS);
- Employees’ registration as the Company’s employee before IMSS; and
- Registration of the Company before the local Treasury (i.e., Mexico City’s Treasury).
4. Payroll and Benefits Providers
On 23 April 2021, the FLL was amendment, the changes consisted of the derogation and amendments of Articles 12, 13, 14, 15, 15-A, 15-B, 15-C, and 15-D, to eliminate personnel subcontracting.
First, the concept of intermediary understood as the natural or legal person who engages or intervenes in the engagement of another or others for the provision of services to an employer was eliminated and instead it was established that employment agencies or intermediaries may participate in recruitment, selection and training among other activities. They will not be considered as employers; this capacity belongs to the beneficiaries of their services.
On the other hand, Article 12 was amended to the effect that personnel subcontracting is prohibited, understanding this as a natural person or an entity providing or making its own workers available for the benefit of another natural person or entity. The law in force allows subcontracting of specialised services or of services for the execution of works that are not a part of the corporate purpose or of the main economic activity of the beneficiary and, as long as the contractor is registered in the public registry provided for in Article 15 of this Law.
Additionally, it allows to contract complementary or shared services or works within a single business group which are known as back-office activities which are also considered to be specialised, if they are not part of the corporate purpose or of the main activity of the company receiving them.
Any contracting of specialised services or of services for the execution of works must be formalised by means of a written contract in which the objective of the services to be provided or the works to be executed is specified, as well as the approximate number of workers that will participate in the fulfilment of said contract.
It was also established in this Article that the person subcontracting with a contractor that does not comply with the obligations arising from its employment relationship with its workers will be jointly and severe liable in relation to the workers used in said hirings.
Those natural persons or entities that provide subcontracting services for specialised services or works referred to in Article 13 must be registered with the Department of Labour and Social Welfare. And established that, such registration must be renewed every three years.
In relation to the sanctions: Article 1004-A and 1004-C were amended. The first one, to impose penalisations on employers that do not allow the inspection and surveillance ordered by the labour authorities or refuse to provide the required information, through fines ranging from 250 to 5000 times the UMA [Unit of Measure and Update]; the last one, to penalise those who provide subcontracting services referred to in Article 12, as well as natural persons or entities that provide subcontracting services without having the corresponding registration, with fines ranging from 2000 to 50,000 times the UMA.
The amendment to Article 15 A entails highly onerous and bureaucratic obligations in requiring companies that have already obtained their registration with the Department of Labour and Social Welfare to provide the Institute, on quarterly basis, the information on the agreements that it has entered into within that fourth month period, their objective and term, a list of the workers including their CURP [Personal Population Registry Code], social security number and base salary used for the payment of social security dues as well as the name and federal taxpayer’s registration number of the beneficiary of the services. In addition to a series of rules for its compliance.
