While the amount to be granted as profit sharing by companies in May will increase, labor lawyers do not believe that the 100 billion pesos expected by the Department of Labor (STPS) will be reached.
“I believe that it will not (be reached) because we are just coming out of a pandemic, many companies are in a very difficult situation and it may possibly improve in coming years, but we are emerging from an economic crisis.
“Those companies that did not have any workers and are only receiving them this year can make use of the criterion of new creation and will not start paying profit sharing until the next fiscal year”, said Ricardo Martínez, a labor lawyer.
Additionally, many companies who acknowledged employees that were subcontracted can also invoke the concept of new creation, he added.
Jorge Sales, a lawyer at Littler, believes that there is a certain amount of confusion among companies on how to calculate profits, although the majority are willing to comply.
He agreed that some companies will not report profits due to the economic situation resulting from the pandemic.
“We must remember that it is the Employee Participation in Company Profits (PTU) for last year and, although there are companies that generated taxable profits, their liquidity is not very good due to the bad year resulting from the pandemic. These companies are seeking alternatives that entail certain risks.
“The tax treatment of the PTU is different from that of a bonus and what is fiscally paid is as well”, he stated.
For the Department of Labor (STPS), the positive impact of the disappearance of the subcontracting mode will start being reflected when companies and employers conduct employee profit sharing between these coming months of May and June.
This is because employees that were subcontracted and were acknowledged by their employers will receive this benefit for the first time.
The STPS expects that workers will receive, in average, a profit of 57 days of salary, equivalent to 18 thousand 557 pesos, 2.59 higher that what they currently receive.
Thus, an increase of 100 billion pesos is expected versus the current situation.
In accordance with Article 123 of the Federal Labor Law, the distributable profit will be divided in two equal parts:
Equally among all workers, taking into consideration the number of days worked by each one of them during the year, regardless of the amount of their wages.
And in proportion to the wages earned for the work provided during the year.
10 percent of the company’s profits must be paid to the workers, in accordance with the provisions of the current legal framework.
When the amount to be paid exceeds three months of the worker’s salary, 90 days of salary are established as the maximum limit for the payment of the PTU, except in the event that the average of the last three years exceeds this amount.