el crispito

Employee Obligations

There are both rights and obligations on the part of the employee in Mexico, and the obligations are more or less what one would expect. According to the 2008 "Ley federal del trabajo," a copy of which is published by Berbera Editores S.A. de C.V., Mexico City (http://www.berbera.com.mx/), employees must:

• do their jobs according to the established norms for the job
• observe the rules and guidelines established by the employer and other authorities for the employees' security and personal protection
• serve under the direction of the employer or his representative, who will remain the authority concerning everything about the job
• execute the work with the intensity, caution and care appropriate for the type of work, and the time and place where it occurs
• give immediate notice to the employer, except for act of God or greater force, of the just causes that prevent them from doing their work
• observe moral codes of conduct during the execution of the job
• give assistance at any time as needed when co-workers or the interests of the employer are in danger
• maintain membership in any legally-required organizations (such as unions)
• allow medical examinations outlined in company procedures and other established guidelines in the company, to verify that they do not suffer some incapacity or disease contracted through their work, contagious or incurable
• make the employer immediately aware when they have contracted any contagious disease
• communicate to the employer or his representative any deficiencies that they notice, in order to avoid damages or damages to the interests and lives of their fellow workers or those of the employers
• keep confidential all the technical and commercial secrets of the company of which they have knowledge through their work

   - Title 4, Chapter 2, Article 134, Sections 1-13

It also states that, employees must not:

• act in any manner that would put themselves, their co-workers or any third-party at risk
• miss work without just cause or permission of the employer
• remove any raw or processed materials belonging to the company
• arrive at work in a state of inebriation
• be at work under the influence of narcotics or stimulants, unless a for a pre-existing medical condition and accompanied by a doctor's prescription (in which case, the worker will have to notify the employer and show him the prescription
• carry arms of any type during the working hours, unless the nature of the work demands it
• suspend work without authorization of the employer
• collect money in the establishment or place of work
• use the equipment and tools provided by the employer for any purpose different from that for which they are intended
• promote or advertise during working hours within the establishment

   - Title 4, Chapter 2, Article 135, Sections 1-10

Termination for Just Cause

This is the basic set of "employee dos and don'ts" in the law, but these are not the specific rules that allow an employer to fire an employee without cause.

When someone is let go from their job in Mexico, it is only considered justified if it is because of one of the following reasons:

• misrepresentation of the employee's "abilities, aptitudes or faculties" by the employee or a union representing the employee
• a lack of probity or honesty, acts of violence, threats, insults or mistreatment toward the employer, their relatives or of the administrative personnel of the company (unless done in self-defense)
• bringing about a lack of discipline in the workplace through a lack of probity or honesty, acts of violence, threats, insults or mistreatment toward co-workers
• a lack of probity or honesty, acts of violence, threats, insults or mistreatment toward the employer, their relatives or of the administrative personnel of the company conducted outside of work if they render the fulfillment of the work relationship impossible
• sabotage of company buildings, works, machinery, instruments, raw materials and other work-related objects
• causing serious damage not with ay malicious intent but with negligence that ends up being the sole cause of the damage
• putting oneself, ones co-workers or the establishment in danger by imprudence or inexcusable negligence
• committing immoral acts in the workplace
• revealing industrial secrets
• missing work for three days in a period of thirty days, without permission of the employer or just cause
• disobeying the employer or his representatives, without cause
• refusing to adopt practices prescribed to prevent accidents or disease
• being in a state of inebriation on the job or under the influence of narcotics or stimulants, unless, in the case of stimulants, a medical prescription exists (and the prescription has been given to the employer)
• being sentenced to a term in prison
• offenses that are analogous ones to those mentioned above, when equally serious and resulting in similar consequences

   - Title 2, Chapter 4, Article 47, Sections 1-15

The employer must provide the fired employee with written notice including the date of and reason for his being fired. If the employee refuses to receive this notice, the employer must file the notice with the Conciliación y Arbitraje office within five days of the firing date. Failure to notify either the worker or the Conciliación y Arbitraje office is sufficient for the firing to be considered unjustified.

   - Title 2, Chapter 4, Article 47, Section 15

Severance Payment

When a firing is not considered to be justified, a severance payment is required of the employer. This payment consists of three different elements. Bear with me. It gets a little complicated.

• Indemnización - The formula for this varies by the type of work done and the amount of time worked. In Shawn's case, as it is in most types, it is calculated as 90 days times the daily salary, which is itself calculated by taking the monthly salary and dividing it by 30. (Temporary workers, domestic servants and employees in a "position of trust" are paid six month's pay plus twenty days for each year worked thereafter; if they have worked for less than one year, it is a payment equivalent to half the time worked.)
• Prima Vacacional - The formula for this is the number of vacation days granted per year times the daily salary, then this product is divided by four.
• Prima de Antigüedad - Calculating this requires knowing the daily minimum wage. The formula is one day's pay for every day worked, but it is capped at two times the daily minimum wage. If one earns less than that (may God help them), the formula is just the daily wage times the number of months worked. If it is higher than that, it is the number of months worked times two times the daily minimum wage.

If the employer dismisses the employee without just cause and fails to pay them this severance package, they can be taken to court and sued for it. If the case is decided in favor of the former employee, the employer is responsible for a full day's pay for every day between the date of the firing and the date the decision is handed down. This is known as salarios caidos. Since the court system is bogged down and an employment case can easily take a year or more to be decided, this places the employer at a definite disadvantage if they are taken to court over disputed severance.

The prospects look even more grim for the employer when one considers that employees win 90% of such cases in Mexican courts.

Due to the heavy caseload in the courts and because employees are often in a position where they need the money after being fired, a special office of Conciliaje y Arbitraje has been established as a speedier alternative to a court hearing. Yet unlike court decisions made by judges, arbitration proceedings run by lawyers are not binding and employers are not even required by law to show up for arbitration meetings.

We will discuss arbitration in our next article on this topic.