On April 20, 2021, the plenary session of the Senate of the Republic, approved in general and in particular the reform to several laws: Federal Labor Law (LFT), Social Security Law (IMSS), Law of the National Workers’ Housing Fund Institute (INFONAVIT), Federal Tax Code (CFF), Income Tax Law (ISR), Value Added Tax Law (VAT); with the intention of eliminating the figure of labor subcontracting “in-/outsourcing”. The reform decree will be published in the Official Gazette of the Federation (DOF) during the current week 16 or subsequent weeks and will become effective the day after it is published.
1. Considerations of the Reform
- The prohibition of the subcontracting of personnel in the in/outsourcing modalities;
- The regulation of the subcontracting of specialized services other than the corporate purpose and the main economic activity of the contracting company;
- Registration with the Ministry of Labor and Social Welfare (STPS) and registration in the public registry of companies subcontracting specialized services and works;
- Joint and several liability in the event of noncompliance; and
- The granting of a three-month term for the subcontracted workers to become part of the employer’s payroll.
- Penalties for those who subcontract personnel without registration will be subject to the imposition of sanctions/fines ranging from 2 thousand to 50 thousand times the Unidad de Medida y Actualización (UMA), that is, from 179,240 to 4 million 481 thousand pesos.
2. Changes to Profit Sharing (PTU)
The determination of the Employee Profit Sharing (PTU) will be subject to the rules referred to in Article 127 of the Federal Labor Law (LFT), adding a maximum limit of 03 (three) months of the employee’s salary or the average of the participation received in the last 03 (three) years, whichever is more favorable to the employee.
Derived from the reforms to the different legal systems, it is necessary to carry out a particular study (due diligence), in order to determine the possible implications that the changes brought about by in/outsourcing will have on the operation of the companies.
At least the following aspects should be evaluated:
- Classification of the services received.
- Avoid contracting services with companies that use outsourcing and/or specialized services and are not accredited by the Ministry of Labor and Social Welfare (STPS).
- Obtain the corresponding authorization and registration of specialized services, in order to meet any requirement from the labor authorities.
- To have a list of workers “under the modality of specialized services”.
- Submit to the Mexican Social Security Institute (IMSS) the required information of the workers in order to comply with the relevant social security obligations.
WMP Mexico Advisors has the consulting services to implement the reforms in any hiring scheme that corresponds to each particular company. Do not hesitate to contact the experts of our legal department.