On March 31, 2020, the General Director of Federal Employment Inspections and the Responsible of the Worthy Employment, issued an order a Special Operative of Federal Inspections regarding Salary Payment or Minimum Wage, issuing the Applicable Criteria for the Develop of such Inspections, is very important to be prepared on having this visits promptly, please be informed that this Inspections shall have the following characteristics:
- The inspections will be ordered as extraordinary inspections, this in order for the Company to be obliged to receive it immediately without previous notice. Most probably the inspection shall be developed in general labor conditions if the activity of the company is federal, or safety an hygiene, since this shall justify the qualification of the federal authority, since many businesses should be inspected by local authorities and it is highly probable that the operative shall be inspected and the federal authority knows that this is the only way they have for it to be enforceable.
- In accordance with the rules ordered in the Operative, the period of time subject to be reviewed is from February 15, 2020 up to the date of inspection. Please keep in mind that the inspector could require information regarding employees from previous dates, it is better to have available the general information about payment of wages and benefits, at the time of the inspection.
- The inspectors are instructed to require the following information:
- Documents to prove the employees are receiving full salary.
- Corroborate that only legal discounts are applied, based on the Federal Labor Law or judicial orders (alimony, for instance).
- Positions chart to verify names and salaries of each position. It is important to highlight that there is no “positions chart” figure in the Law, however in order to prevent it is most likely that they will request for the Salary Tab of the Collective Bargaining Agreement, regarding unionized employees; and for non-unionized categories there is no such tab.
- It shall be proven that salaries were paid.
- If the inspector detects employees who have not received full salary or have received a diminish on the amount corresponding on daily salary, the record of the inspection shall include general information of the employee and copies of the documents.
- Is forbidden for inspectors to resolve that the company has no information or that there was no one to attend to the inspection, therefore such inspection must be develop providing the Company a period of time to file the requested information.
- If the inspector concludes the existence of omission regarding wage payment or that the minimum wage has been stopped being paid, the Federal Labor Representative must file a criminal action before the Federal Prosecutor.
- Upon the diversity of agreements between employees, employers, Unions and the applicability of the compensation considered on the latest Section 429 Subsection VII of the Federal Labor Law, it is important to consider as follows:
- Verify that the inspection corresponds to the employer entity, otherwise mention that the requested company has no employees on such Work place and that the employer is another company, and not to hand in any document to the inspector, if it has no employees.
- Must likely, the inspector will request stamped salary payment receipts, physical or electronic receipts, electronic transfers, please make sure to have them in hand at the time of the inspection.
- If there was a reduction of wages at the Work place, please provide a document that could be used as proof, either the agreement with the Union, individual agreements of diminishing work shifts and therefore the diminish of salary, or to prove that the compensation considered on the Law is been paid, in some cases some companies are using as reference the concept of payment “COVID-19 COMPENSATION” or similar that identifies that the stamped salary receipts are under the compensation concept.
- If you have not prepared any formal documentation the reason or legal grounds for the discounts, it is time to do so.
- Remember that, since this is an extraordinary inspection, the company must receive the inspector and always have a 5 day period after such inspection to file allegations or evidence related to the inspection, do not let pass the opportunity to correct any errors or absence of information.
- Due to the home office status, it is likely that the person who normally attends the inspector is working at home, please provide guidance to the personnel at the Work place to attend such inspection.
- In the event of hesitation, please do not provide documents just to hand in something, if there is any doubt, is better to request for a term in order to issue the information and ask for legal advice on this matter.
- If the authority issues a criminal action due to the inspection, such must be followed very seriously, is not advisable to reach this point, is better to attend such inspections professionally and avoid any inconvenience and expenses.
Keep in mind that currently we are facing a general activities suspension issued by the authority, therefore is absurd that the Federal Employment Inspection provides a request to the Inspector to verify if full salary is being paid during this suspension of the labor relationships, due to this suspension any salary is not caused, in that case what the employer must do, is with any of the compensations considered by the Federal Labor Law, but not with the salary payment and therefore it would be illegal that the inspector to record as a violation of the law that salary has not been paid, but that it has not been fulfilled the Award issued by the Labor Board that ordered the compensation, or with the compensation that the employer pays based on subsection IV of section 429, which does not require any authorization of the Board.
At De la Vega & Martínez Rojas, S.C., we are at your service and looking forward to any requirement that you have on this matter. A group of experts is available for you to provide consultation at these difficult moments of sanitary contingency, and to guide you throughout the inspections that the authority has ordered.