BULLETIN – AUGUST 3RD, 2017

 

AGE DISCRIMINATION IN THE WORKPLACE

 

Are job offers that stipulate age requirements discriminatory?

 

The last paragraph of Article 1 of the Political Constitution of the United Mexican States, states that,
“All discrimination motivated by ethnic or national origin, gender, age, disabilities, social condition, health conditions, religion, opinions, sexual preferences, marital status or any other that infringes on human dignity and that is intended to nullify or diminish the rights and liberties of persons.”

 

In November of 2014 a very important Supreme Court Decision was published. (Amparo Directo en Revisión 992/2014). The principal theme was the discrimination implicit in certain job offers that stipulate age requirements. The case arose from two job offers published in the newspaper REFORMA. The ads were like many that you see every day in newspapers and Facebook.
 - Preparatoria or Technical Career
 - Age: 18 to 25
 - Sex: Female
 - Experience, one year in reception or public relations
 - Excellent presentation, height 160 cm, size 30,
 - Polanco

2 individuals and 2 civil associations organized for fighting discrimination promoted this civil suit for moral damages against the company that placed the ad based on age discrimination. The suit was first heard by a Judge of the civil Tribunal Superior de Justicia in Mexico City in 2012 who found in favor of the company that placed the ad because the plaintiffs had not applied for a job.

The plaintiffs appealed the decision stating that the ad was discriminatory because, whether they had applied for a job or not, the ad was discriminatory because it limited the free access to employment of a vulnerable group, thus creating a moral damage to society, even though a candidate may have completed the other requirements in the ad.
 The original decision was again affirmed in the Tribunal Superior of Mexico City. The plaintiffs then promoted an Amparo Directo (Amparo is a legal procedure to defend a person from violations of their Constitutional Rights). Their argument stated that 1) there existed a violation of Article 1 of the Constitution because the ad created a discriminatory labor exclusion based solely on the age of persons, 2) Because the ad was discriminatory it constituted an illegal act, 3) it was not necessary to accredit the compliance to the other requirements stipulated in the ad because the principle of no discrimination was violated with the unjustified exclusion.
 The Amparo was denied because the plaintiffs had not demonstrated that they were damaged by the discrimination.
 The plaintiffs took advantage of the Recourse of Review, which means that the decision is reviewed by the next higher court. Which in this case is the Supreme Court.
 The Supreme Court found in favor of the plaintiffs in a Decision that stated:
 “Generalizations must not be made based on age unless it is justified that said age is essential for performing the work…… The absolute prohibition against discrimination established in the Constitution as well as in various international treaties, not only is an obligation of the State, Citizens also must be held as obligated to respect the right to no discrimination, independently of the contractual liberties. The Court denied a sanction because there was no real damage to the plaintiffs.
 In conclusion, although it is unlikely, you can be sued for discrimination for any of the elements found in Article 1 of the Constitution, (ethnic or national origin, gender, age, disabilities, social condition, health conditions, religion, opinions, sexual preferences, marital status).
 I always suggest that discrimination based on age or sex is basically unfair and may limit you from hiring someone who may be the best candidate for the job, but does not fit into the image of the person that you see filling the position.

LABOR RELATIONS

The following are several questions I have received recently about labor relations:

Are companies required to have medical staff on site?
 
 The Law is usually interpreted to mean a room with one bed and supplies and a nurse on site with a doctor on call that makes regular visits.
 A nurse or doctor on site can attend to minor complaints rather than sending a worker to Social Security and losing a day of work or more.

Article 504 of the Federal Labor law says that, "Employers have the following special obligations:"

"II. When they have in their service more than one hundred employees, to establish an infirmary, supplied with medications and medical materials necessary for medical attention and emergency surgery. Competent personnel under the direction of a medical doctor will attend it. If in the judgment of this person the proper medical or surgical attention cannot be administered, the worker will be transported to the town or hospital where he/she may be attended;”
This does not mean that there must be a full-time doctor on site, but a doctor must be contracted to make regular visits to develop the medical examination matrix for each employee and be on call.

“III. When they have in their service more than 300 employees, to install a hospital, with medical personnel and necessary help;”

Most large companies have a full-time doctor on staff or several nurses with a visiting doctor. Companies can avoid the expense of equipping an infirmary by the following:

“IV. Through prior agreement with the workers, the employers may contract with clinics or hospitals located in the place in which the establishment is located or at a distance that permits the rapid and comfortable transport of the workers, so that they may render the services referred to in the latter two Sections"

This means that a nearby hospital or clinic can be contracted to satisfy the need for a medical station or clinic on site.

 

VACATIONS
 

Do workers have to take their vacations or can they be paid for the vacations and continue working? How are vacations calculated?

 

It is prohibited for companies to pay compensation to the worker for vacations in place of taking the time off for vacations.
The Federal Labor Law (Ley Federal del Trabajo) states in Articles 78 and 79:
“Article 78. Workers must have 6 continuous days of vacation, at least.
Article 79. Vacation days cannot be compensated by a payment.
If the labor relation ends before one year of service has been completed, the worker will have the right to compensation commensurate to the time worked.

 

How are Vacations calculated?

 

The minimum vacation time for a person that has worked one year is 6 consecutive days.
“Article 76. Workers who have more than one year of employment are entitled to an annual paid vacation that in no case can be less than 6 working days, 2 working days will be added to this time for each additional year of employment until reaching 12 working days.

 

YEARS WORKED

VACATION DAYS

1

6

2

8

3

10

4

12

5

14

5 to 9

16

15 to 19

18

20 to 24

20

 

After the fourth year, the vacation period will be increased 2 days for each 5 years of employment.”
 The following table shows the minimum vacation time required. These are the minimum and any employer can increase these amounts which should be stated in the labor contract or union contract.

 

Is it legal to pay overtime with extra time off?

 

 

NO. Although it is common to make agreements with workers to work overtime in exchange for taking other days off, it leaves an employer vulnerable to fines and lawsuits. There are no precepts in the Labor Law that permit compensating overtime with days off. When there are special circumstances, overtime can be worked without exceeding 3 hours or more than 3 times in a week, the workers have the right to receive double time for the first 9 hours of overtime and triple time over 9 hours.

Granting a day off for working overtime, instead of paying double or triple time is not legal, because it implies an unconstitutional waiver of labor rights. No worker can waive (renounce) any of the rights established in the Labor Law. It is the responsibility of the Employer to assure that no rights are violated. A worker cannot legally consent to not enjoy the rights established by the law. (Federal Labor Law, Article 5, section XIII)

“Article 5. The provisions of this Law are of public order, for which no legal effect will be produced, nor will the enjoyment and exercise of rights, whether written or verbal be impeded by a stipulation that establishes:
XIII. The renunciation by the worker, of any of the rights and prerogatives established in the labor standards.”
For this reason, it is indispensable to pay overtime as stipulated in the Labor Law. The fine for not following the law as to the payment of overtime is:
(Article 992 and 994, section I) 50 to 250 times the *UMA. $3,774.50 to 18,872.50 pesos applicable to each worker.

 

What is the UMA?
Fines and fees used to be based on the minimum daily wage, one of the factors that has affected the rise of wages. This constitutional link to the minimum daily wage has been reformed.
 Instead of the minimum daily wage the “UMA” is used. (Unidad de Medida y Actualización).
December 30, 2016 a new law (Ley para Determinar el Valor de la Unidad de Medida y Actualización = Law to Determine the Value of the Unit of Measure and Updating) was published in the DOF made possible by a Constitutional reform to unlink the minimum daily wage from being used as the criteria for fines and fees in Mexico.
 In many laws, you will observe that the sanction is a number of minimum daily wages – as of Feb. 1, 2017 those sanctions and fees will be linked to the UMA. The UMA and the minimum daily wage are now different amounts and when a law or regulation indicates the “minimum daily”, the UMA is substituted.
EMERGENCY FIRE EXITS

What is the penalty for emergency exit doors that are blocked, locked or not accessible?
The legal citation for emergency exit doors and their requirements is NOM-002-STPS-2010, “Chapter 7 Conditions of prevention and protection from fires,
Article 7.16. To have normal and/or emergency exits that comply with the following conditions:”

 

 

“f) That the doors considered as emergency exits are free of obstacles, padlocks, latches or locks with safeties placed during working hours that impede their utilization in cases of emergency, and”

The fine according to article 120, section II of the Federal Regulation for Occupational Health and Safety is 250 to 5000 times the UMA. (18,872.50 to 377,450.00 pesos per worker)

 

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If you have any questions, please contact Glenn McBride at glenn@mexicanlaws.net or visit our website www.mexicanlaws.com

Regards,

Lic. Glenn Louis McBride

Licensed Mexican Attorney