BACKROUND
On April 23, 2021, it was published in the Federal Official Gazette, the Reform Bill regarding the outsourcing or subcontracting of personnel, with the purpose of changing several labor, social security, and tax laws.
This reform will be in force as of April 24, 2021; and in the case of changes related to the tax laws, these will come into effect, as of August 1, 2021.
The most important changes in the applicable legislation are as follows:
FEDERAL LABOR LAW
The subcontracting of personnel or outsourcing which consists of an individual or legal entity providing their own employees for the benefit of another entity or company is now forbidden.
The provision of specialized services or the performing of specialized works which are not part of the corporate purpose nor the predominant economic activity of the beneficiary are allowed, provided that the contractor obtains the appropriate Register from the Ministry of Labor (Secretaría del Trabajo y Previsión Social or the STPS for its acronym in Spanish).
Also, the provision of specialized services or the performing of specialized complementary and shared works, between members of the same company group, will be allowed, provided that such services are not part of the corporate purpose nor the predominant economic activity of the beneficiary.
Said provision of specialized services or the performing of specialized works must be formalized into a written legal agreement.
For such purposes, companies as providers of “specialized services”, must request and obtain the applicable registration from the STPS, according to the rules to be issued within the next 30 days, following the entry into force of Reform, by the STPS.
Once the aforementioned rules are issued by the STPS, companies will have 90 calendar days for their registration, which will have the following characteristics:
It will be in effect for 3 years;
It will be public and will be available on the STPS Internet portal;
The STPS is obligated to resolve the registration request within 20 days of receiving such request.
Furthermore, the beneficiary company of the specialized services or specialized works that receives such services from a contractor that has not complied with its labor obligations will be considered jointly and severally liable with regard to the employees engaged in the performing of such services.
In the case of companies that transfer its employees to another company, they are not required to transfer their assets as well, provided that such transfer takes place within 90 calendar days from the entry into force of the Reform, and the labor rights of the employees that would have been generated from the beginning of the employment relationship are recognized by the substitute employer, including their seniority.
Moreover, companies that fail with the compliance of the aforementioned new obligations will be subject to the applicable fines or penalties.
Finally, regarding the obligation of the companies to pay statutory profit sharing to employees (PTU for its acronym in Spanish), a new procedure of sharing is established as follows:
(i) PTU payable will be limited to a maximum of 3 months of ordinary daily salary; or (ii) the average of the PTU received from the last 3 years; by applying the most favorable amount to the employee.
It is important to mention that the applicable procedure in order to determine PTU, as currently established in the Federal Labor Law, remains the same.
