Note published on june 23 on ICLG, section Practice Areas / Employment & Labour Law / Mexico by Oscar de la Vega, Jimena Sánchez Argoytia, Eduardo Arrocha Gio and Alejando Toledo Alcaraz.
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1. Terms and Conditions of Employment
1.1 What are the main sources of employment law?
The principal sources of law to employment relationships in Mexico are the Mexican Constitution (Constitución Política de los Estados Unidos Mexicanos) and the Federal Labour Law (FLL).
1.2 What types of worker are protected by employment law? How are different types of worker distinguished?
All employees are entitled to protection against dismissal, except when there is a justified ground for the termination of the employment relationship.
The Mexican employment law distinguishes the following categories of employees:
- Trust employees. The FLL contemplates a special category of employees in management positions and other employees in positions of trust. To determine whether employees hold positions of trust depends not only on their titles but also on their actual functions. The law defines functions of ‘trust’ as those that generally pertain to direction, inspection, surveillance and supervision and those who perform personal services for the employer so that they are in personal/direct contact with the employer.
- Unionised and non-unionised employees. A unionised employee is defined as any worker who is a member of a legally incorporated union organisation.
1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?
Written employment contracts are mandatory in Mexico.
1.4 Are any terms implied into contracts of employment?
Pursuant to the Mexican employment law, an employment contract must provide at least the following information: (i) the employee’s complete name, nationality, age, gender, marital status and domicile, federal taxpayer number and Unique Population Code; (ii) whether the term of the employment relationship is for an indefinite term, a defined term, specific job, or initial training, and whether the employee will be subject to a probationary period or seasonal work; (iii) description of the services to be performed; (iv) place or places where the services will be performed; (v) work schedule; (vi) salary; (vii) day and place of salary payment; (viii) the employee’s training programme; (ix) other provisions that may be agreed between employee and employer, including holidays and vacations; and (x) the designation of the employee’s beneficiaries for the payment of salaries and benefits in case of the employee’s death or disappearance caused by a criminal act.
1.5 Are any minimum employment terms and conditions set down by law that employers have to observe?
The FLL provides for the following minimum benefits, which may not be waived whatsoever:
- Social Security Benefits: all employees must be registered with and contribute to the:
- Mexican Institute of Social Security (IMSS);
National Workers Housing Fund Institute;
- Retirement Savings Programme; and
- National Fund Institute for Workers’ Consumption, which is a governmental institution that provides financial aid to employees for the acquisition of goods and services.
- Mexican Institute of Social Security (IMSS);
- Profit Sharing: Employers are required to distribute 10% of its annual taxable income among its employees. 50% of such amount is distributed according to the employees’ salaries and 50% according to the days worked in the year. The individual amount payable per employee is capped to three months of the employee’s base salary, or the average profit sharing paid to the employee during the last three years, whichever is more favourable for the employee.
- Paid Mandatory Holidays: FLL requires that employees be paid for government holidays.
- Vacation Premium: employees are paid an extra 25% of the salary to which they are entitled during their vacation period.
- Christmas Bonus: employees have the right to a bonus of at least 15 days of their daily base salary, which must be paid by no later than 20 December of each year.
1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?
A collective bargaining agreement (CBA) is an agreement that can be entered into between one or more labour unions and one or more employers, in order to establish the labour conditions in the company or workplace.
To fulfil its purpose, the CBA must include at least: the name and domicile of the company and union, the different workplaces where it is applicable, if it is for a definite or indefinite period, the work shifts, resting days, vacations, salaries for unionised employees, clauses relating to training and minimum bases in order to create joint committees. However, the CBA can also include any other clause agreed between the parties as long as it is not expressly forbidden.
It is important to take into consideration that due to the 2019 labour reform, in order for a union to call to strike requesting the execution of a new CBA or a benefits and salaries revision, the union must either obtain the certificate of representation (proving it has the support of at least 30% of the employees) or to be the Union that currently administrates the CBA. Furthermore, to be in force, its content must be approved by the majority of employees through their free, personal, secret and direct vote following a special procedure provided for in the FLL.
As a general rule, CBAs usually take place at a company level, although they are also common at an industry level.
1.7 Can employers require employees to split their working time between home and the workplace on a hybrid basis and if so do they need to change employees’ terms and conditions of employment?
On January 11, 2021, the FLL was amended to include new teleworking (remote work) regulations. These amendments establish new obligations for employers, requiring them to update or implement new policies and employment contracts, as well as to review and update their CBAs and/or internal labour regulations.
Employees are considered under a teleworking modality whenever they are working more than 40% of their work shift on a remote basis by using information and communication technology.
The change from traditional or direct work arrangement to teleworking modality must be on a voluntary basis and agreed in writing, except in cases of proven force majeure. In addition, when there is a change in the teleworking modality, both parties have the right to revert to the direct or traditional arrangement.
1.8 Do employees have a right to work remotely, either from home or elsewhere?
In accordance with the teleworking modality provisions, employees are entitled to work remotely from home or any other domicile they determine.
2. Employee Representation and Industrial Relations
2.1 What are the rules relating to trade union recognition?
Article 356 of the FLL defines a union as ‘the association of workers or employers for the study, advancement, and defence of their respective interests’. It follows from this definition that labour unions may not include both workers and management members.
Labour unions can be organised as follows:
- trade unions, encompassing workers of the same profession, skill or specialty;
- enterprise unions, encompassing workers employed in the same enterprise;
- industrial unions, encompassing workers who work in two or more enterprises in the same industry;
- national industry-wide unions, formed by workers employed in the same industry but located in two or more states (including Mexico City) and various trades; and
- multi-craft unions, established in municipalities that do not have 20 or more workers of the same profession, trade or specialty.
2.2 What rights do trade unions have?
In February 2017, the Mexican Constitution was amended to establish the obligation for unions to prove the representation of workers in order to request the execution of a CBA.
Additionally, on November 2018, Mexico ratified Convention 98 of the International Labour Organization (ILO) (Convention 98 of the ILO) and also signed the commercial agreement with the United States and Canada, known as the USMCA (the United States–Mexico–Canada Agreement). Both of these establish provisions for freedom of association and collective bargaining, including a prohibition on any interference by employers in the establishment of workers’ unions.
Moreover, on May 1, 2019, a decree amending various provisions of the Federal Labor Law was published in the Official Gazette of the Federation. The reform set to be fully effective by May 2023, radically changed the regulations governing union recognition and collective bargaining in Mexico. Furthermore, the reform implied a radical change in collective labour relations, as for the first time, workers were explicitly granted the right to democratically elect their union leaders through a direct, personal, free, and secret vote, to express their approval of CBAs, the possibility of choosing whether to form part of a union, and whether to pay union fees, among others.
The 2019 reform expressly establishes the obligation and procedure for unions to prove the representation of workers whenever they request the execution of a CBA or whenever they file a strike call demanding the execution of a CBA.
Trade (or craft) unions may enter into their own collective agreements provided they represent the majority of the workers engaged in that trade within the company.
2.3 Are there any rules governing a trade union’s right to take industrial action?
The FLL provides the union’s right and procedure to strike (strike call), establishing its conditions, requirements and restrictions.
The 2019 reform establishes the obligation and procedure for unions to prove the representation of workers whenever they request the execution of a CBA or whenever they file a strike call demanding the execution of a CBA.
2.4 Are employers required to set up works councils? If so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/appointed?
The FLL does not foresee the formation of work councils. However, employers are required to establish the following joint (employee-employers) committees:
- Training Joint Committee. Approves training programmes for employees, their scope, duration, content, etc. This Committee is mandatory for employers with more than 50 employees.
- Health and Safety Joint Committee. Reviews the company’s health and safety measures and procedures, and if necessary, proposes improvement to the same.
- Employees’ Seniority Joint Committee. Prepares and approves the list of employees with their seniority, as the support for promotions to higher positions.
- Internal Labour Regulations Joint Committee. Draft and approves the Internal Labour Regulations that must be filed with the competent labour authorities to make them enforceable.
- Profit Sharing Joint Committee. Prepares and approves the calculation and distribution of the annual profit sharing among employees of the company.
Almost all joint committees must be formed and incorporated by an equal number of employees and employer representatives through the drafting and execution of minutes.
2.5 In what circumstances will a works council have co-determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals?
See question 2.4.
2.6 How do the rights of trade unions and works councils interact?
If a company has a union, it shall represent the unionised employees in the matters referred to in question 2.4.
2.7 Are employees entitled to representation at board level?
No, employees are not entitled to representation at board level.
3.1 Are employees protected against discrimination? If so, on what grounds is discrimination prohibited?
In Mexico, discrimination laws in labour matters are not extensively developed. Mexican Constitution and the FLL prohibit any type of discrimination against employees. The FLL states that no worker may be discriminated against on the grounds of race, nationality, gender, age, disability, religion, migratory condition, health, sexual orientation, religion, sexual preferences, political opinion or social status.
3.2 What types of discrimination are unlawful and in what circumstances?
Article 3 of the FLL establishes as a general principle, among other matters, that: ‘any distinction made against employees based on race, nationality, sex, age, disability, religion, migratory condition, health, sexual orientation, religion, political affiliation or social status is strictly prohibited’.
Further, Article 3 of the Mexican employment law requires employers to: ‘treat employees with due consideration and avoid mistreatment by word or conduct’, while Article 133, Section I prohibits employers from: ‘refusing employment (to an applicant) based on age or gender’. Article 164 provides that: ‘women have the same rights and obligations as men’.
The Federal Law to Prevent and Eliminate Discrimination prohibits any discriminatory practice that infringes on the principle of equal opportunity. The federal government’s interpretation of this law must be consistent with international treaties on discrimination to which Mexico is a party.
Notwithstanding the above stated laws and legal provisions, there are no stipulations with respect to concrete sanctions or legal actions, should the employer incur in discriminatory acts. Therefore, regardless of the existence, in paper, of these laws and provisions, the lack of enforcement thereof represents a standstill in the evolution of non-discriminatory legislation in Mexico.
3.3 Are there any special rules relating to sexual harassment (such as mandatory training requirements)?
Employers are required to implement a protocol, in agreement with the employees, to prevent gender discrimination, acts of violence, bullying and sexual harassment, and to eradicate forced and child labour.
3.4 Are there any defences to a discrimination claim?
In the event where an employee files a discrimination complaint, in accordance with the applicable law, the employer and/or the person to whom the alleged discriminatory acts are attributed have the opportunity to present evidence and statements regarding the alleged facts.
3.5 How do employees enforce their discrimination rights? Can employers settle claims before or after they are initiated?
Employees may file a labour claim alleging a constructive dismissal due to being subject to discrimination, abuse, violence and mistreatment with liability for the employer. Moreover, employers are required to investigate these types of conducts at the workplace. The FLL provides that employers cannot allow or tolerate any kind of discrimination and employment harassment at the workplace. Any disputes concerning employment discrimination are exempt from having to fulfil the prerequisite of the conciliation/mediation process before the Labour Courts.
Additionally, employees who allege being subject to discrimination and employment harassment may also file a complaint against the employers before the National Commission to Prevent and Eradicate Discrimination at the Workplace (CONAPRED).
3.6 What remedies are available to employees in successful discrimination claims?
The type of remedy available, or penalty imposed, depends upon the legal authority under which the victim pursues the discrimination claim. An employee alleging sexual discrimination under the FLL is entitled to receive the statutory severance. Employers who violate any of the anti-discrimination provisions shall be subject to a fine of 250 up to 5,000 times the UMA in effect.
An employee who files a complaint with the CONAPRED authorities could seek either: a) payment of damages; b) public warning; or c) a public or private apology.
From a civil standpoint, Article 1916 of the Federal Civil Code (FCC) states that a person must be indemnified in cash for ‘moral damages’ when the feelings, affections, beliefs, honour, reputation, private life, shape and physical appearance of the individual are affected, or in the consideration that others have of such person. Furthermore, the same provision assumes that moral damage exists when a person’s freedom or physical or psychological integrity is violated or diminished. Despite this assumption, in practice it is difficult to prove the essential elements of the action that causes moral damage, taking into consideration its subjectivity.
3.7 Do “atypical” workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection?
By statute, all employees are entitled to the same protection against discrimination. However, the FLL grants extraordinary protection against dismissal to employees with 20 years of service or more.
3.8 Are there any specific rules or requirements in relation to whistleblowing/employees who raise concerns about corporate malpractice?
In Mexico, there is no specific statutory protection for employees who alert or provide information about possible breaches of the law or good corporate governance policies.
4. Maternity and Family Leave Rights
4.1 How long does maternity leave last?
Working mothers are entitled to a fully-paid leave of six weeks prior to their approximate delivery date and six weeks thereafter. Four of the six pre-child birth weeks can be transferred to the post-child birth period, at the request of the working mother and approval of the employer.
Statutory maternity leave may be extended as necessary if work is not possible because of the pregnancy or the delivery.
4.2 What rights, including rights to pay and benefits, does a woman have during maternity leave?
The employee’s salary during such maternity leave will generally be covered by IMSS. However, if the employee does not comply with the requirements established by the social security law, the employer will be responsible for paying the employee’s salary during the maternity leave period.
4.3 What rights does a woman have upon her return to work from maternity leave?
During the nursing period of six months, the new mother is entitled to two additional 30-minute rest periods per day to feed the child, in an adequate and hygienic place set aside by the employer. When returning from maternity leave, the employee is entitled to reinstatement, provided that not more than one year has passed since the date of delivery.
4.4 Do fathers have the right to take paternity leave?
Male employees are entitled to enjoy a paid paternity leave of five days when the child is born or in case of adoption, as of the placement of the child. This payment is not covered by the IMSS.
4.5 Are there any other parental leave rights that employers have to observe?
Workers with children diagnosed with cancer are entitled to leave of absence. A leave certificate issued by the IMSS will be valid for up to 28 days. The IMSS may issue as many leave certificates as needed within a three-year period.
4.6 Are employees entitled to work flexibly if they have responsibility for caring for dependants?
The FLL does not provide any type of work flexibility to employees who have the responsibility of caring for dependents; however, employers and employees may agree on paid or unpaid leave.
5. Business Sales
5.1 On a business sale (either a share sale or asset transfer) do employees automatically transfer to the buyer?
In connection with the sale of a business or transfer of undertaking, the FLL generally requires the acquiring entity to retain the selling entity’s workers, as well as to assume existing benefit liabilities, regardless of whether the benefits are privately sponsored (e.g., company-sponsored medical insurance) or legally mandated (e.g., paid vacation and vacation premium). This is known under Article 41 of the FLL as a substitution of employer.
As a corollary of this retention obligation, the acquiring entity must recognise the workers’ length of service, so as to ensure that changes in the legal structure or the ownership of the employer do not undermine the workers’ vested rights. If the sale of a business in Mexico is structured as a stock purchase or a merger agreement that does not affect the seller’s corporate entity, a substitution of employer does not come into play. In these cases, the buyer automatically becomes the employer of the seller’s workers.
5.2 What employee rights transfer on a business sale? How does a business sale affect collective agreements?
Article 41 of the FLL likewise contemplates the continuity of work relations in the event of an asset sale. When the buyer or substitute employer assumes the workers’ terms and conditions of employment in effect prior to the substitution, the FLL does not require consent from, or consultation with, the workers. For a substitution of employer to apply, pre-substitution terms and conditions of employment – as established in the individual employment contract or collective agreement – must remain unaltered. If the substitute employer unilaterally implements detrimental changes to existing employment conditions, the employee can rescind the employment relationship and demand statutory severance. During the first six months following an employer substitution, both employers remain jointly liable for labour claims.
With respect to collective agreements, in case the business is sold including assets and liabilities, the union will remain as the employee’s rights representative, and continue to be a part of the CBA.
5.3 Are there any information and consultation rights on a business sale? How long does the process typically take and what are the sanctions for failing to inform and consult?
Under the Mexican employment law there is no obligation to consult employees in connection with a business sale. However, it is recommended to informally approach the union (if any) to avoid disruption with it.
5.4 Can employees be dismissed in connection with a business sale?
No, employees cannot be dismissed in connection with a business sale.
5.5 Are employers free to change terms and conditions of employment in connection with a business sale?
Please see question 5.2.
6. Termination of Employment
6.1 Do employees have to be given notice of termination of their employment? How is the notice period determined?
If an employer terminates the employment relationship with just cause, the employer must notify the employee of the termination and reasons for it by providing appropriate notice directly to the employee or through the competent labour authority. Employers must provide this notice to the employee within 30 days as of the date on which the employer became aware of the acts that allegedly justify the termination.
6.2 Can employers require employees to serve a period of “garden leave” during their notice period when the employee remains employed but does not have to attend for work?
Mexican legislation does not provide for garden leave.
6.3 What protection do employees have against dismissal? In what circumstances is an employee treated as being dismissed? Is consent from a third party required before an employer can dismiss?
An employer may dismiss an employee only where the latter gives cause for dismissal. Under Mexican labour law, ‘integrity at work’ is mandatory behaviour for the employee. An employee is deemed to act with integrity when the work is carried out with intense effort, care and attention, in the agreed-upon time, place and manner. ‘Lack of integrity’ is a generic cause for dismissal.
Additionally, Article 47 of the FLL specifies particular kinds of conduct that are causes for dismissal.
For trust employees, Article 185 of the FLL provides that this type of employee may be terminated with cause if there is a reasonable cause for loss of confidence.
No consent from a third party is required before an employer can dismiss.
6.4 Are there any categories of employees who enjoy special protection against dismissal?
In the case of employees with a seniority of 15 years or more, the termination of the employee can only be executed due to a severe cause.
6.5 When will an employer be entitled to dismiss for: 1) reasons related to the individual employee; or 2) business related reasons? Are employees entitled to compensation on dismissal and if so, how is compensation calculated?
Employers are entitled to dismiss for reasons related to the individual employee where the employment relationship has just cause (as defined under the FLL).
In addition to termination with or without just cause, the FLL recognises that the labour relationship may be terminated for business-related reasons in the following circumstances (among others):
- by termination of the specific job or the term of the capital investment;
- by the self-evident non-profitability of the operation;
- by force majeure or acts of God; or
- by legally declared insolvency or bankruptcy.
If an employment relationship (for an indefinite term) is terminated ‘without cause’, the employee will be entitled to a severance payment equivalent to:
- three months of aggregate salary;
- 20 days of aggregate salary per each year of services (pro rata for partial years); and
- seniority premium equal to 12 days of salary for each year of service rendered, with a limitation of up to twice the minimum wage in effect (pro rata for partial years); and Mandatory fringe benefits paid in arrears as of the date of termination (e.g., outstanding vacation days, vacation premium, proportional Christmas bonus, saving fund, food coupons, etc.).
Severance payment for employees hired for a definite term in the case of termination without cause is different to that of employees hired for an indefinite term.
6.6 Are there any specific procedures that an employer has to follow in relation to individual dismissals?
Please see question 6.1.
6.7 What claims can an employee bring if he or she is dismissed? What are the remedies for a successful claim?
According to the FLL, employees who have been wrongfully terminated can file a complaint with the competent labour authority for: (a) the payment of statutory severance; or (b) reinstatement to the same position he held, plus back wages (which is the salary the employee is not earning during the labour proceedings capped to one year, if the litigation is not concluded after 12 months, the plaintiff will be entitled to request 2% monthly interest over a 15-month salary base).
6.8 Can employers settle claims before or after they are initiated?
There is conciliation stage with the relevant conciliation centre before taking their dispute to the labour courts, and if the parties reach a settlement, they must execute an agreement that will be deemed as a final judgment not subject to appeal. Also, parties may reach an agreement during the litigation process (before the final judgement is issued).
6.9 Does an employer have any additional obligations if it is dismissing a number of employees at the same time?
According to the FLL, there must be a legally permitted cause of termination that substantiates the collective dismissal. The severance payment and the subsequent procedure will be determined depending on the cause.
The first step is to determine whether the company has unionised workers and confidential employees. If it does, the working conditions of the union workers are governed by the CBA. Therefore, both the termination of the union workers and the CBA must be negotiated with the Union.
The aggregate salary of union workers must include: (1) the base salary; (2) any other benefit in cash or in kind (such as life insurance, savings fund, food coupons, vacation premium, year-end bonus, etc.); and (3) any other benefit provided to the employee for services rendered.
In practice, some labour unions claim the payment of a four-month indemnity plus 20 days of aggregate daily salary for each year of services rendered, arguing that the termination of the employment relationship is a consequence of the implementation of new working procedures by the parent company. In other cases, the union claims an additional premium for the closing of industrial operations that may represent an additional percentage to the indemnity contemplated by law.
Upon conclusion of the negotiations, an agreement will be filed before the competent labour authority for the liquidation of all union workers. The above will enable the employer to freely dispose of its real estate and goods (machinery, raw materials, buildings, etc.). Additionally, it is common practice to liquidate confidential employees using the same basis as for the union workers. In some cases, those who actively participate in the closing operations will receive a ‘stay-on’ bonus.
6.10 How do employees enforce their rights in relation to mass dismissals and what are the consequences if an employer fails to comply with its obligations?
Please see question 6.9.
7. Protecting Business Interests Following Termination
7.1 What types of restrictive covenants are recognised?
Although Mexican legislation does not provide for a specific concept of restrictive covenants, they may be defined as any contract, covenant or agreement having as scope the restriction, loss or irrevocable sacrifice of personal freedom. Mexican law does not expressly prohibit clauses or covenants of this nature during the employment relationship. In fact, if a worker engages in activities that result in competition against the employer’s business during the course of employment, that conduct would constitute just cause for termination of the work relationship, even in the absence of a non-compete covenant.
Non-competes, non-solicitation of customers and non-solicitation of employees are clear examples of restrictive covenants. Execution of restrictive covenants has become more common in Mexico as a means to protect the employer’s confidential information and trade secrets, as well as to ensure the companies’ right to loyal competition.
7.2 When are restrictive covenants enforceable and for what period?
In principle, restrictive covenants are only ‘enforceable’ during the employment relationship as a cause for termination and without liability on the employer. From a labour standpoint, post-
employment restrictive covenants are null and void under Mexican legislation and therefore, unenforceable; the only possibility for ‘enforcement’ is before the Civil Courts as explained above.
Non-compete may be incorporated as one among various clauses in an individual work contract, or may take the form of an altogether separate or standalone agreement between the employer and the worker.
On the other hand, both the validity and enforceability of non-compete covenants – that seek to survive an individual’s work relationship – are more difficult to ascertain. Mexico’s Constitution protects its citizens’ freedom to engage in lawful work. Moreover, the FLL expressly provides that work constitutes a ‘social right and duty’ and, as such, to ‘preclude any person from carrying out work, or from engaging in a profession, industry or trade of choice, so long as it is lawful’, is not permitted in principle.
As a general rule, other than the self-evident requirement that the work, profession, industry or trade be considered lawful, the right to freely choose work may only be limited or denied ‘by resolution of competent authority when the rights of a third party are infringed, or when those of society are offended’. Notwithstanding the foregoing, pursuant to an opinion issued by a Circuit Court on Civil Matters in Mexico City, non-compete Covenants are fully enforceable provided they are limited in time, geographical scope, clients and activity, products and services, and consideration is paid in exchange.
Mexican employers that require certain workers to enter into non-compete covenants must narrow down the scope of the worker’s post-employment restrictions by: (a) setting limits to the duration of the covenant, such as a maximum of one year after the conclusion of the work relationship; (b) defining the type of competitive activities from which the former employee is to refrain; and (c) specifying the competitors and the geographic area or market segment in which the former worker cannot accept employment.
7.3 Do employees have to be provided with financial compensation in return for covenants?
Employers must make a payment to the former worker in exchange for the commitment not to engage in direct competition with its business.
Another alternative for the parties is to agree on dividing an overall payment into periodic ‘installments’ after pre-defined periods have elapsed in which the former worker has opted not to accept employment with a competitor or to engage in direct competition.
7.4 How are restrictive covenants enforced?
If the non-compete and non-solicitation agreement is declared null and void for the reasons provided in Article 5 of the Mexican Constitution, both parties are able to retrieve their prior status, meaning the employee will be requested to pay back any and all moneys received for performance of the obligations established in the agreement. The employer could also exercise a civil action claiming damages derived from such infringement or even take criminal action if the employee had access to confidential information and/or trade secrets while performing his duties. Note that an injunction to prevent someone from rendering services or working in a certain field or activity cannot be issued because, as mentioned above, Article 5 of the Mexican Constitution and 4 of the FLL bar such relief.
8. Data Protection and Employee Privacy
8.1 How do employee data protection rights affect the employment relationship? Can an employer transfer employee data freely to other countries?
The Mexican Federal Law on the Protection of Personal Data Held by Private Parties (the Data Privacy Law) governs the legitimate, controlled and informed treatment of personal data to guarantee the individual’s privacy and their entitlement to decide who, why and for which purposes their personal data may be processed (informational self-determination). There is a reasonable expectation of privacy in every data processing, being understood as the confidence that any person deposits in another regarding the personal data provided.
8.2 Do employees have a right to obtain copies of any personal information that is held by their employer?
Yes, employees have the right to access their own personal data held by the employer.
8.3 Are employers entitled to carry out pre-employment checks on prospective employees (such as criminal record checks)?
There is no express impediment or restriction for employers to request a criminal record certificate or carry out background checks (i.e. credit) under Mexican legislation. However, background checks must not be discriminatory and applicants must give their consent to the checks being carried out.
8.4 Are employers entitled to monitor an employee’s emails, telephone calls or use of an employer’s computer system?
Yes, subject to the employee’s written consent and that the monitoring is carried out through a working tool (provided by the employer).
8.5 Can an employer control an employee’s use of social media in or outside the workplace?
Under the FLL, employers cannot control an employee’s use of social media in or outside the workplace.
9. Court Practice and Procedure
9.1 Which courts or tribunals have jurisdiction to hear employment-related complaints and what is their composition?
Under the 2019 reform, the local or federal labour conciliation and arbitration boards are being replaced by labour courts at a local and federal level.
9.2 What procedure applies to employment-related complaints? Is conciliation mandatory before a complaint can proceed? Does an employee have to pay a fee to submit a claim?
Conciliation centres at a local level are in charge of a mandatory conciliation process before going to litigation for disputes at a local level. A Federal Conciliation and Labour Registration Centre was created, in charge of the referred mandatory conciliation process at a federal level and for the registration of unions, CBAs and internal labour regulations.
9.3 How long do employment-related complaints typically take to be decided?
Generally, a labour claim could take from one to three years.
9.4 Is it possible to appeal against a first instance decision and if so, how long do such appeals usually take?
Yes, an “Amparo” Motion (Habeas Corpus) may be filed against a first instance decision. Generally, it takes a six-month term to be resolved.