Paola Zetina received a reprimand by e-mail. Her transgression: not standing watch after the agreement to suspend activities at the gym franchise in which she works.
“After the branch in which I work was closed, the manager asked us to go there to clean the premises and safeguard the more valuable things. We tidied everything up, knowing that the gym would remain closed during the contingency”, she says.
“He sent me a WhatsApp message one afternoon, to ask me to stand watch the next day. I asked him whether this was a general measure, since the head office had informed us that activities had been suspended, with pay. He got angry and answered that I should not ask inappropriate questions. I decided not to go, and got reported”, she adds.
Standing watch, mandatory attendance to the workplace, salary reduction or temporary suspensions are some of the actions that certain companies have been implementing due to the Coronavirus crisis. But, are they legal?
Ricardo Martínez, founding partner at the De la Vega y Martínez Rojas Law Firm, says that in some cases, they are. As long as the employers and the workers have reached a mutual agreement and the provisions of Article 42 Bis of the Federal Labor Law (LFT) are complied with. “This article defines the work mode modifications and collective suspension of employment relationships in the presence of economic circumstances that justify them or when the competent authorities issue a decree of health contingency”, he explains.
By official mandate, all museums, movie theaters, theaters, gyms and zoos closed their doors in the nation’s capital as of March 24. Religious or mass events were also canceled, and citizens were urged to stay at home, with the objective of avoiding the spread of coronavirus Covid-19. Only companies and commercial establishments that are necessary to face the contingency will continue in operation.
Companies are required to comply with regulatory frameworks. But they can also define their own paths to follow. Therefore, it is important that employees are aware of the limit of the legality in regard to changes in their work conditions. We explain here which business measures are legal during contingencies, and which ones are not.
Standing watch and working at the workplace
NOM 030 establishes that the employer must ensure that appropriate and necessary health measures are taken to ensure the worker’s physical well-being. If the employer does not guarantee this, he cannot request the employee to attend his workplace, whether to stand watch or perform his work at the workplace.
As stated by Martínez, the worker can call the Labor Defense Attorney’s Office or the inspection area of the Department of Labor to request that an inspector evaluates whether the location has the necessary health measures in place.
In the event that it does not, the work center may be subject to a fine ranging from 250 to 5,000 Units of Measure and Update (UMA). In other words, fines ranging from 21,122 to 422,450 pesos. Workers can also request to work from home, given that the LFT itself, in the section of homeworkers, permits and acknowledges this type of work.
A temporary suspension without salary is illegal. The contingency is not a valid cause for termination. In the event that the employer wants a suspension of work, he must obtain authorization form the Conciliation and Arbitration Board. And in that case, he must compensate each employee with a full month of their salary.
“Now, more than ever, employees need to know that they can count on the support of their employer. Their leader can inspire confidence by being present. Providing information on the measures to be adopted, being transparent and helping to the extent that is possible for him”, advises Roxana Aguirre, Director of Human Management at Sodexo, a Firm offering organizational incentives and benefits services.
In order for the salary reduction to be lawful, a mutual agreement must be reached between the employer and the employee. “Salaries cannot be reduced through a unilateral decision. Should this happen, the employee has the right to demand the rescission of his contract and has the right to receive three months of salary, plus 20 days for each years of services rendered. The employer, on the other hand, has the obligation of paying the daily minimum wage for one month, as a minimum”, states the lawyer.
Once the contingency is over, employees must receive their full salary, as well as the benefits they had the right to. Otherwise, they can appeal to the Labor Attorney’s Office, to the Labor inspection Office or to the Conciliation and Arbitration Board. The worker has 60 days to sue for unjustified dismissal and one year to sue for salary reduction.
Roxana Aguirre advises organizations to consider their personnel as a primary factor within the actions they implement. Employee welfare benefits, such as grocery vouchers can help employees and their families to satisfy their needs for acquiring basic products. Even for shopping online, thus avoiding exposing them to physical contact.
“It is advisable to temporarily resort to the maximum amount permitted by law in order to help employees. Particularly in the event of salary adjustments. This does not create a burden on the salary nor the expenses associated with cash aid. This is a viable option, in economic terms, for everyone”, she concludes.
Note published in Expansión, Carrera [Career] Section by Nancy Malacara