Mexico: Employee rights

Summary

  • There are various rules for employees' hours of work, including overtime, and particular restrictions for night workers. (See Hours of work).
  • Employees are entitled to minimum rest breaks, and daily and weekly rest periods. (See Rest breaks and rest periods)
  • Employees' weekly rest day should be Sunday, although if an employee agrees to work on a Sunday he or she is entitled to a higher rate of normal pay. (See Sunday work)
  • There are various rules regarding minimum paid annual leave for employees and when it may be taken. (See Holiday and holiday pay)
  • Pregnant employees are entitled to take up to 12 weeks' paid maternity leave, made up of six weeks before the birth and six weeks afterwards. (See Maternity and pregnancy rights)
  • Employers are obliged to grant five days' parental leave to male employees in the event of a birth or adoption of a child. (See Other leave)
  • Part-time workers have the same rights as full-time employees. (See Part-time workers)
  • Fixed-term contracts are permitted only in certain circumstances. (See Fixed-term workers)
  • Where an "employer substitution" occurs, the employees affected automatically become employees of the transferee, and retain all of their existing employment rights. (See Transfers of undertakings)
  • In the event of an employer's insolvency or bankruptcy, employees' pay-related claims are given priority in the distribution of its assets. (See Insolvency of employer)
  • Disciplinary procedures must be set out in an organisation's "internal work rules". (See Disciplinary procedures)
  • There are various rules regarding the processing and use of employees' personal data. (See Data protection)
  • Each undertaking must draw up a set of "internal work rules" dealing with various employment matters. (See Internal work rules)

Hours of work

Working time is defined by statute as the time during which the employee is at the disposal of the employer to perform his or her work. The statutory maximum normal daily working hours are:

  • eight hours for day work - defined as work between 6am and 8pm;
  • seven hours for night work - defined as work between 8pm and 6am; and
  • seven and a half hours for "mixed" work - defined as a shift that includes both day and night work, if the night work component comprises less than three and a half hours (if it is three and a half hours or more, the shift is considered night work).

As a six-day working week is the norm, the legislation implies maximum working weeks of 48 hours for day work, 42 hours for night work and 45 hours for mixed work. However, it is possible for the employer and employees to agree on a way to distribute the maximum working week in fewer working days in order to provide additional rest time. In such circumstances, the work shift and overtime is measured on a weekly and not a daily basis.

Any hours worked in excess of these statutory limits are considered overtime. The employee must receive a premium of 100% on top of normal pay for the first nine overtime hours per week, and a premium of 200% for the 10th and subsequent overtime hours. Further, case law has established that a 200% premium is payable after an employee has worked more than three overtime hours on a particular day, or has worked overtime on more than three occasions in one week.

If an employee exceeds his or her daily hours on one or more days during the working week, he or she will still need to exceed the total number of maximum working hours within that week in order to be eligible for overtime.

Special working time rules apply to young workers (see Mexico: Recruitment and selection > Young workers).

Rest breaks and rest periods

During a continuous working day, employees must be given a break of at least 30 minutes. If employees are not allowed to leave the employer's premises during their rest or meal break, the break is counted as working time for the purpose of calculating daily working limits. Further, case law has established that any break lasting less than an hour must be counted as working time for these purposes.

Employees are entitled to at least one full paid day of rest for every six days of work. The rest day should, preferably, be Sunday. In organisations where continuous work is required, the employer and employees can agree when rest days should fall. If an employee agrees to work on a rest day, he or she must receive a premium of 200% on top of normal pay.

In principle, the working week has six days. However, statute specifies that the employer and employees can agree a distribution of working time that allows employees to have Saturday afternoons off, or a similar arrangement.

There are special rules on rest breaks and rest periods for young workers (see Mexico: Recruitment and selection > Young workers).

Sunday work

Employees' weekly statutory rest day should, preferably, be Sunday (see Rest breaks and rest periods). An employee who agrees to work on a Sunday that is his or her rest day is entitled to three times the normal pay rate. An employee who works on a Sunday that is not his or her normal weekly rest day is entitled to receive a premium of at least 25% on top of normal pay. Children under the age of 16 must not work on Sundays (see Mexico: Recruitment and selection > Young workers).

Holiday and holiday pay

Employees are entitled to paid annual leave. The minimum statutory leave entitlement starts at six working days after one year's service with the employer, rising to:

  • eight days after two years' service;
  • 10 days after three years' service;
  • 12 days after four years' service; and
  • 14 days after five years' service.

Entitlement then increases by two days for every additional five years' service (making 16 days after 10 years, 18 days after 15 years and so on).

During their first year of employment with an employer, employees' leave entitlement is calculated on a pro rata basis according to the employee's seniority in the company. The same applies to employees who work on a seasonal or occasional basis.

Employees must take at least six days of their annual leave entitlement in a single block.

Employers cannot pay employees instead of granting them their statutory annual leave entitlement. When an employment relationship ends, the employee is entitled to payment in respect of any unused annual leave entitlement.

Employers are entitled to determine the period within which employees can take their annual leave. However, leave must be taken within six months after the end of the year of service in which the entitlement was accrued.

In addition to receiving their normal pay during annual leave, employees are entitled to a holiday bonus from their employer, equal to at least 25% of their normal pay for the period of leave.

There are seven public holidays per year that are considered statutory paid days off for employees, these being:

  • New Year's Day (1 January);
  • Constitution Day (first Monday in February);
  • President Benito Juarez Day (third Monday in March);
  • Labour Day (1 May);
  • Independence Day (16 September);
  • Revolution Day (third Monday in November); and
  • Christmas Day (25 December).

In addition, every six years there is a statutory paid day off on 1 December, for the inauguration of a new President, and days off may also be ordered for federal or local elections.

Employees cannot be compelled to work on these days off. If they do work, they are entitled to receive three times their normal rate of pay. If employees are needed to work on one of these days, the number to work should be agreed by the employer and employees. In the absence of agreement, the relevant Conciliation and Arbitration Board (see Mexico: Termination of employment > Contesting dismissals) decides which employees must work.

Maternity and pregnancy rights

Pregnant employees are entitled to 12 weeks of maternity leave, made up of six weeks before the birth and six weeks afterwards. They are allowed to roll over up to four weeks of the leave before the birth until after the birth with medical and employer approval. During the leave, employees receive a social security benefit from the Mexican Social Security Institute (Instituto Mexicano del Seguro Social, or IMSS) worth 100% of their pay, up to the social security ceiling of 25 times the statutory minimum wage rate applicable to the employee (see Mexico: Pay and benefits > Income tax and social security). If the employee's pay is above this ceiling, the employer is obliged to top her IMSS benefit up to 100% of normal pay.

The normal period of maternity leave may be extended, before or after the birth, if it is impossible for the employee to work because of factors related to the pregnancy or birth. During this extended leave, the employee receives an IMSS benefit worth 50% of her normal pay for up to 60 days.

On returning from maternity leave, employees are entitled to resume their previous job, provided that no more than a year has passed since the birth. The period of leave counts towards the employee's length of service.

Pregnant and breastfeeding women must not:

  • perform work that could endanger their health or that of their child (such as lifting, pushing or pulling heavy objects, or standing for long periods);
  • work overtime hours;
  • work night shifts in industrial plants in hazardous environments; or
  • work after 10pm in commercial or service establishments.

Employees' pay, length of service, benefits and rights must not be affected by any changes to their work required to comply with these rules.

While nursing their child, employees are entitled to two additional paid 30-minute rest periods per day to feed their child, in an adequate and hygienic place set aside by the employer. Alternatively, an employee's shift may be reduced by one hour for the same purpose.

Female employees who adopt a child are entitled to six weeks' adoption leave after they receive the child, paid at the same rate as maternity leave, but by the employer rather than the IMSS.

Other leave

Employers are obliged to grant five days' parental leave to male employees in the event of the birth or adoption of a child.

Part-time workers

There is no specific statutory regulation of part-time work. Part-time workers have the same rights as full-time employees, pro rata to working hours where relevant.

Fixed-term workers

Employment on fixed-term contracts is permitted only where the nature of the work requires a contract of a specified duration, or to replace temporarily an absent employee (see Mexico: Contracts of employment > Types of contract). Workers can also be employed to carry out a specific task or project. Fixed-term and project workers have the same rights as other employees, pro rata to length of service where relevant.

Transfers of undertakings

In the event of the transfer of an undertaking, the implications for employment relationships and rights depend on the nature of the transaction. A transfer of shares has no effect on the status of employees and the employment relationship. In cases where "main assets" are transferred from one employer to another in order for the new employer to continue with activities inherent to the business, an "employer substitution" occurs. The law establishes that such a transfer can be effected by any legal means, such as sale or lease.

Employer substitution means that the new employer (the transferee) takes over as the employer from the old employer (the transferor) and employees continue their employment relationship unchanged. Employees are deemed to have been employed continuously and without interruption since their original recruitment by the transferor, and their length of service is unaffected in terms of entitlement to employment rights. The transferee must provide the same employment conditions, and pay and benefits as the transferor. The consent of the affected employees is not required for employer substitution to occur. However, each employee must be informed of the substitution in writing, as must any trade union representing the employees (see Mexico: Industrial relations > Trade unions). For six months after this notification, the transferor and the transferee are jointly liable for the transferor's obligations towards employees except in the case of any unpaid social security contributions to the national housing fund (INFONAVIT) where the joint liability extends for a period of two years.

Where employer substitution does not apply, or the transferee wants to change employees' employment conditions, there are two options for the transferee:

  • The transferee can terminate the employment contracts of all employees concerned and then rehire them, while acknowledging their length of service with the transferor (that is, treating them as if they have been employed by the transferee continuously since their original recruitment by the transferor). Under this procedure, on termination of the contract, the employees receive all accrued but unpaid entitlement to pay, holiday, bonuses and so on with the transferor. However, they do not receive any severance payment. The transferee is entitled to establish new pay and conditions for the employees after rehiring. The consent of the employees is required for this procedure, and they must sign a resignation letter, a receipt for full payment of wages owed, and a termination agreement (see Mexico: Termination of employment > General). Where employees are represented by a union, the union's consent is also required. If the employees do not give consent, the termination is deemed to be dismissal without "just cause" and the employees are entitled to a severance payment (see Mexico: Termination of employment > Dismissal without just cause).
  • The transferee can terminate the employment contracts of all employees concerned and then rehire them, without acknowledging their length of service with the transferor. In this scenario, the employees are treated as new recruits by the transferee, which is free to establish their pay and conditions. However, the employees are entitled to a statutory severance package on termination, comprising:

    The consent of the employees is required for this procedure, and they must sign the relevant documentation. Where employees are represented by a union, the union's consent is also required.

    Insolvency of employer

    A statutory declaration of insolvency proceedings or bankruptcy is considered to be one of the statutory grounds for collective redundancies, if the competent authority or creditors decide on the definitive closure of the business or a definitive reduction in production. The statutory collective redundancy payments and procedures apply (see Mexico: Termination of employment > Collective redundancies).

    Employees' pay-related claims over the past year, and entitlements to severance payments (see Mexico: Termination of employment > Dismissal without just cause), take precedence over other debts owed by an employer. In the event of bankruptcy or insolvency proceedings, the employees are not required to act as a party in the proceedings in order to recover these claims: the statutory Conciliation and Arbitration Board will attach the employer's assets necessary to meet these obligations to employees.

    Disciplinary procedures

    Disciplinary measures and procedures must be set out in the organisation's "internal work rules" (see Internal work rules). Apart from dismissal (see Mexico: Termination of employment > Dismissal with just cause), these are subject to few statutory requirements, other than that suspension from work without pay, as a disciplinary measure, may not exceed eight days, and that employees are entitled to be heard before a sanction is applied. Employers are forbidden from imposing financial penalties on employees.

    Data protection

    For the purposes of data protection legislation, employers are considered to be "data controllers" and employees and job applicants are "data subjects". All personal data processing (gathering, disclosure, storage and use) is subject to the consent of the employee or job applicant, unless such processing is contemplated within one of the exceptions provided by law (for example in an emergency or where the data is publicly available).

    The employer must issue a privacy notice to employees and applicants whose data is to be processed. The notice must state, as a minimum:

    • the identity and address of the data controller;
    • the personal data that will be processed;
    • any sensitive personal data that will be processed, by way of express identification;
    • the purposes of the data processing;
    • the options and means offered by the data controller to limit the use or disclosure of personal data;
    • any transfers of personal data, identifying the transferee and the purpose of the transfer;
    • whether the employee accepts or objects to the transfer of personal data;
    • the means by which the employee or applicant can exercise his or her rights to access, rectify, cancel or object to the personal data being processed;
    • any national and/or international transfers of the data;
    • how technology will be used to collect personal data automatically; and
    • how the data controller will notify the employee or applicant about any changes to the privacy notice.

    Failure by the employee or applicant to object to the privacy notice is considered to be tacit consent to the data processing. However, for the processing of financial and/or sensitive personal information, the employee's consent must be expressly provided in writing. Sensitive information relates to matters such as racial or ethnic origin, health status, genetic make-up, religious belief, trade union membership, political views and sexual preference.

    As well as informing employees and job applicants that their data is to be processed, and obtaining their consent to the processing, employers must ensure that the personal data to be processed is correct and up to date, and delete data after it has been used for the purposes identified in the privacy notice. Employers must set up a personal data department to promote the protection of personal data within the organisation and represent the employer if a data subject files an application for access, rectification, cancellation or objection with the statutory National Institute of Transparency, Information Access and Data Protection (Instituto Nacional de Transparencia, Acceso a la Información y Proteccion de Datos Personales -INAI).

    The transfer of personal data always requires the consent of the data subject unless the transfer is in accordance with a law or treaty, or is necessary or legally required for a specific purpose established in the data protection legislation. When personal data is being transferred from a holding company to a subsidiary or related company that operates the same processes and policies as the holding company, the data subject's consent is not required.

    With the exception of the right under data protection legislation for employees to have access to personal data that is being processed, records kept by the employer are confidential and the employer is not required to allow employees access to such documents, unless expressly agreed by the parties.

    In addition to the above, the provisions of copyright legislation make it advisable for employers to obtain prior consent from their employees in order to maintain, process and, if necessary, transfer employee data, when this information is contained in a database.

    Internal work rules

    At each undertaking or establishment, a joint employer-employee committee (see Mexico: Industrial relations > Joint employer-employee committees) must draw up a set of "internal work rules" (reglamento interior de trabajo). These are mandatory rules, applicable to both the employer and employees, dealing notably with:

    • employees' arrival and departure times, meal times and rest breaks;
    • the time and place at which work shifts start and end;
    • the schedule for the cleaning of facilities, machinery, equipment and work tools;
    • the day and place of payment of wages;
    • measures to prevent work accidents and the details of training to give first aid;
    • the unhealthy and dangerous work that may not be performed by children (see Mexico: Recruitment and selection > Young workers) and the protection for pregnant employees (see Maternity and pregnancy rights) in this respect;
    • the timing and form of medical examinations for employees;
    • disciplinary measures and procedures (see Disciplinary procedures); and
    • any other standards necessary or convenient for improved safety and the better functioning of work in the undertaking or establishment concerned.

    The internal work rules must be registered with the relevant Conciliation and Arbitration Board within eight days of being drawn up (see Mexico: Termination of employment > Contesting dismissals). They must be displayed in the employer's facilities and copies must be distributed to the employees.

    If the employer wishes to introduce any form of code of conduct to be observed by employees, it must be included in the internal works rules and registered with the relevant Conciliation and Arbitration Board in order to be enforceable.

    Sources/references

    Most aspects of employee rights are governed by the Federal Labour Law. Maternity benefits are regulated by the Social Security Law. Data protection is dealt with mainly by the Federal Law for the Protection of Personal Data in the Possession of Private Parties and its Regulations.