On June 7, 2024, a reform to the General Law to Prevent, Sanction, and Eradicate Crimes Related to Human Trafficking and to Protect and Assist Victims of these Crimes (Law against human Trafficking) was published in the Federal Official Gazette, amending article 21 by adding subsection “IV” to addition into the concept of “labor exploitation,” the “working hours above what is stipulated by law.” This is the text published in the reform:
“Article 21. …
…
I. to III. …IV. Working hours above what is stipulated by law.
In the case of people belonging to indigenous and Afro-Mexican communities, the penalties will be 4 to 12 years of imprisonment and from 7,000 to 70,000 days of fine.” The language used in the reform is extremely ambiguous and has caused confusion in the business sector. Therefore, below we discuss arguments based on a comprehensive interpretation in accordance with the applicable labor principles and Federal Labor Law (FLL).
- The text of subsection IV should be read in conjunction with the introductory statement of article 21 of the Law against human Trafficking, not in isolation. This makes it clear that the concept of labor exploitation involves certain behaviors that do not generally materialize when working overtime but requires to be obtained by “forcing” a person to practices that violate their dignity, that is, against their will.
- According to the FLL, the duration of the work-shift is regulated as either ordinary or extraordinary. Overtime hours are those required when the work-shift is extended due to extraordinary circumstances, meaning neither regularly nor permanently.
- Overtime should not exceed 3 hours a day nor more than 3 times a week. If it extends, without exceeding 9 hours a week, it must be paid with a 100% additional charge according to article 67 FLL.
- On the other hand, article 68 FLL establishes that employees are not obliged to compulsory work overtime beyond the aforementioned limits, due to being considered as “time above permissible”, in the corresponding labor chapter, and they can validly refrain from working such shifts. However, if employees voluntarily work them, then the employer is required to pay them with an additional 200%. Furthermore, they can be penalized through an employment inspection with fines ranging from $27,142.50 to $542,850 pesos.
- Additionally, in the bill analysis performed by the Senate commissions, they address that if the extra shift are paid with the corresponding payment, applicable to each case,and are voluntarily rendered, there should not be any case related to labor exploitation.
- Moreover, in said bill analysis the Senate establishes, while discussing Content and Objective, that to their knowledge, the purpose of the reform was to include the indigenous and afro Mexican population to increase protection for risk groups, therefore, construction of the reform cannot have effects in the same proportion to all
individuals that work overtime.
Hence, besides the capacity of the parties to distribute the work- shift in broad terms as expressed in article 59 FLL, there is reasonable room for interpretation to consider that this reform could not set criminal penalties for employment relations that comply with the current employment regulatory framework: i.e. i) that are worked without coercion, ii) that obtain written consent to work them, iii) if they are paid in full according to the applicable excess case, iv) if they are rendered within the 3×3 margins set by the FLL and v) if they are rendered in truly extraordinary situations.
Finally, it is relevant to consider, that although not being mentioned in the reform, the legislative discussions regarding work-shift reduction might begin within the following months, hence at Monsalvo Duclaud we are closely engaging with employers that aim to review their individual situation, in order to comply in the best form possible with the applicable regulation.
The content of this note is for informative purposes only. It should not be considered as legal advice for a specific case or matter. The information contained here is of a general nature. Readers should consult their own legal advisor and provide the specific information necessary for their particular situation. Since the reform is related to the criminal law practice, it is advisable for readers to consult additionally with their specific advisors in that specific practice. This text only represents the opinions of the author or authors and does not necessarily imply the professional opinions or advice of Monsalvo Duclaud.
Contact:
Luis Monsalvo Valderrama
Alan Duclaud Ampudia
Isabel Pizarro Guevara
Andrés Cámara Pérez
Lidia Monsalvo Álvarez
Luis Monsalvo Álvarez
