Take note! IMSS will use joint and several liability to combat evasion in outsourcing

Note published on march 3, 2022, on The Canadian News, in the News Section, by The Canadian News.
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For the authorities, the work of implementing the outsourcing reform did not end with the migration of workers from companies of outsourcing to operating companies. In 2022, the Mexican Social Security Institute (IMSS) and other agencies will continue to monitor and evaluate the conditions in which the changes occurred.

In this sense, Norma Gabriela López Castañeda, director of Incorporation and Collection of the IMSS, pointed out that about a 80% of companies fully complied with the new subcontracting rules. But a proportion of employers migrated workers without declaring employer substitution to the institute because they made salary reductions, or to avoid adjustments in the risk premium.

“We are reviewing the migrations because 80% of the people behaved very well and have a star. But there is a percentage that did not necessarily behave quite well. We saw that in these migrations suddenly they did not declare the employer substitution, although we made it very easy. But curiously, when they did not declare it, it was because the premium was adjusted or because suddenly there was a salary decrease,” said the official during the seminar. The transformation of work relationships of D&M Lawyers.

The migration of workers, pointed out Norma Gabriela López Castañeda, allows the IMSS to locate employers that were difficult to locate. “Following the worker we see that we can locate him, even if they don’t have the same name (the companies). And what happens if you can’t find it anymore, the client will surely find it. We are going to do a differentiated job, we are going to go to the client and tell him, the person you are contracting with is behaving badly, watch out! because you for joint liability You will have consequences.”

The application of joint and several liability is one of the control channels that the authorities will use in 2022 to combat both phenomena: salary reduction or adjustments in the risk premium.

In this sense, the official asked the legal advisers of the companies not to recommend actions to evade the reform of outsourcing because “there are going to be consequences”, since the authority will follow up on the implementation of the legal modifications in force since April of last year.

The joint liability it was reinforced with the subcontracting reform and implies that the companies that contract specialized services, as its name implies, must assume responsibility in the event that the contractor fails to comply with its employer obligations.

“I have to take care that the person I hire, regardless of whether they have the Repse and everything else, which obviously must have it mainly for fiscal purposes, that they are up to date with their obligations because not only having the Repse makes a solidary responsible person before the IMSS, plays for better and for worse. It is not the Repse that leads me to build one joint liabilityit is the non-compliance that leads me to establish it, “said López Castañeda.

Among the positive impacts of the reform of outsourcingthe IMSS official highlighted that the permanent places they increased in the proportion that temporary jobs decreased, which suggests that some workers were registered with the institute as temporary, but in reality they held permanent positions.

“The composition rose seven percentage points between permanent and temporary. This is important and it is not that the eventual is wrong. They ask me if you can no longer hire casuals, of course you can, the point is that these were eventual chafas; that is, in reality they were not temporary, but people who registered them in this way with the purpose of bifurcating labor relations, ”he explained during the panel. Experiences in the subject of subcontracting.

On the other hand, Norma Gabriela López Castañeda indicated that without the outsourcing reformthe seasonal fall in formal employment in December would have been close to 500,000 jobs.

In practical terms, legal changes to the subcontracting regime have translated into formal workers with better prices, higher incomes and more stability, he said.

The PTU and the persistent doubts

From the perspective of Viviana Balaunzarán, partner of Consulting and Tax Compliance at the firm Skatt, there are still doubts about the payment of the profit sharing. The reform of outsourcing established a limit to the Participation of Workers in Profits (PTU) of three months or the average of the last three years, but it is not clear how the amount that remains should be declared if after applying the caps, the companies do not distribute the 10% of your earnings, for example.

“We know that a company should never pay more than 10% profit. But if the limits are lower, what is that surplus then? Is it considered PTU? We have these distortions”, explained the specialist.

Among other doubts related to the PTU, the specialist raised the scenario for workers who migrated from one company to another through employer substitutions or company mergers and, therefore, had two employers in fiscal year 2021, with which 2022 profit sharing will be paid.

“With two bosses, they have to receive the two OCTs And we return to the same topic, do the two limits apply to me for each company? Or do I only apply a limit for both? In a strict sense, both limits should apply to you, but we don’t have that kind of definitions,” he questioned.

For her part, Carla Martínez, an associate of the firm D&M Abogados, stated that among the challenges of the subcontracting reform are the labor inspectionswhich will be random and, according to the specialist, there is a plan to carry them out to all companies and individuals registered in the Registry of Providers of Specialized Services or Specialized Works (Repse).

“This implies keeping the papers, being very clear about the operation and, above all, taking into account that the loss of the registry can occur due to a bad opinion of an inspection. With this, the conservation of the Repse is also at stake, which is apart from the renewal that must be done every three years, ”he pointed out.

Among other challenges, Carla Martínez highlighted the possible changes in criteria to determine what is considered a specialized service and, therefore, if it is required registration to the Repsewhich is administered by the Ministry of Labor and Social Welfare (STPS).

To conclude, the labor lawyer considered that this year there could be clearer and more precise definitions to determine the activities that qualify as specialized services.

“We must be vigilant because there are certain clients who decided to accept some providers without Repse because they do not consider that they fall under the definition of specialized service providers, but what clauses should be added to the contract or how much time will they be given to regularize if determines that they do require the Repse,” he added.