Legal Framework of Attraction and Hiring of Talent
By – Lic. Alejandro Pedrin.
The trends and factors of change in both the Mexican and global labor force (demographic changes – millennial generation – technological advances, accelerated rhythm of change in companies, shortage of talent, among other factors), are motivating companies to create alternative job positions with unique conditions, varying and implementing various types of work shifts and schedules, changing the dynamic and working environments and the employment benefits, among other conditions.
This is why companies who are currently implementing strategies of attraction, and of hiring and retention of human talent, must consider the compliance with several regulations, laws and legal rules that contribute to the creation of a healthy and to productive labor environment, and especially the reduction of the risk of labor and civil complaints, as well as penalties imposed by labor and administrative authorities.
1. RULES AGAINST LABOR DISCRIMINATION. Mexican Constitution. Federal Labor Law. Federal Law for the Elimination and Prevention of discrimination. International Employment Agreement 111 regarding employment discrimination. Mexican Official Regulation 025 regarding Employment Equality. Federal Criminal Code, among others.
Such legislation protects the principles of equality and non-discrimination as well as prohibit the labor exclusions based on ethnic origin, nationality, gender, age, disability, sexual orientation, social condition, religion, civil status or any other condition contrary to human dignity.
Actions that need to be taken by the employer: These rules should be complied in any process of advertising and hiring of employees, such as: in the job description of the position offered to the public in general, in social and printing media, in job applications, during the job interviews, in criteria for the application of the medical tests and the request of personal information, including any criminal backgrounds, among others.
Liability for the noncompliance of such rules. Labor claims, administrative fines up to 5000 UMAS (Unit of Measurement and Update Unit equivalent to $75.49 pesos, Mexican currency per UMA), per each incident of non-compliance, civil claims and application of reparation measures and payment of damages, as well as criminal complaints.
2. REGULATION FOR THE PROTECTION OF PERSONAL DATA. Federal Law for the Protection of Personal Data in Possession of Individuals and the corresponding Regulations (“Data Law”).
It protects the use and safeguarding of the information that is requested from candidates of employment and later of employees, through the privacy notice and other factors.
Actions that need to be taken by the employer: Such rules should be complied with in the preparation and execution of the recruitment and hiring phases, among others, as well as in the labor application, the employment offer, and the labor agreement. The employer should have the updated privacy notice and comply with the obligation to safeguard and administrate the information obtained in a confidential manner and in accordance with Data Law.
Noncompliance liability: Warning and penalties of up to 320,000 UMAS, depending on the type of infringement of this regulations.
3. REGULATION FOR THE TYPICAL LABOR HIRING. Federal Labor Law.
It protects the procedure in the general labor conditions agreed upon with the employees.
Actions that need to be taken by the employer: Such law should be complied through the proper preparation of the individual labor agreement, as well as the proper determination of the general labor conditions and the type of agreement, including:
- For an indefinite period of time.
- For a specific period of time or specific job.
- For a provisionary or training period.
- For a seasonal agreement.
Noncompliance liability: Labor claims and, labor-administrative fines up to 5000 UMAS.
4. REGULATION FOR ATYPICAL LABOR HIRING. Federal Labor Law.
It protects the certainty of the general labor conditions agreed upon with the employees, in non-customary type of agreements, but with proper legal grounds.
Actions that need to be taken by the employer: Such regulation should be complied by preparing the proper individual labor agreement, and by defining the general labor conditions and type of agreement.
- With agreed working shifts (distribute the 48 weekly hours among 5 days or less), 4 by 12.
- Working shifts per hour / part-time.
- “Flextime” working shifts.
- Work in domicile.
- Intermittent work shift.
Noncompliance liability: Labor claims and labor-administrative fines up to 5000 UMAS.
In the event that you would like to receive further information relating to the legal framework of the recruitment and hiring of talent, please contact one of the following lawyers :
Leobardo Tenorio-Malof | firstname.lastname@example.org
Héctor Torres-López | email@example.com
Alejandro Pedrín | firstname.lastname@example.org
Mauricio Tortolero | email@example.com
Daniel Gancz-Kahan | firstname.lastname@example.org