Employment & Labour Law 2013A practical cross-border insight into employment and labour law3rd EditionThe International Co...
www.ICLG.co.ukDisclaimerThis publication is for general information purposes only. It does not purport to provide comprehe...
Chapter 26ICLG TO: EMPLOYMENT & LABOUR LAW 2013WWW.ICLG.CO.UK168© Published and reproduced with kind permission by Global ...
WWW.ICLG.CO.UKICLG TO: EMPLOYMENT & LABOUR LAW 2013 169© Published and reproduced with kind permission by Global Legal Gro...
ICLG TO: EMPLOYMENT & LABOUR LAW 2013WWW.ICLG.CO.UKMexico170© Published and reproduced with kind permission by Global Lega...
WWW.ICLG.CO.UKICLG TO: EMPLOYMENT & LABOUR LAW 2013 171© Published and reproduced with kind permission by Global Legal Gro...
ICLG TO: EMPLOYMENT & LABOUR LAW 2013WWW.ICLG.CO.UKMexico172© Published and reproduced with kind permission by Global Lega...
WWW.ICLG.CO.UKICLG TO: EMPLOYMENT & LABOUR LAW 2013 173© Published and reproduced with kind permission by Global Legal Gro...
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Employment & Labour Law 2013

  1. 1. Employment & Labour Law 2013A practical cross-border insight into employment and labour law3rd EditionThe International Comparative Legal Guide to:Abdón Pedrajas & MoleroAllen & Overy LLPAnderson Mōri & TomotsuneBarrera, Siqueiros y Torres Landa, S.C.Bener Law OfficeBoga & AssociatesCaiado Guerreiro & AssociadosCárdenas & Cárdenas AbogadosCSB AdvocatesDebarliev, Dameski & Kelesoska Attorneys at LawEduardo Vásquez Silva & Compañía, AbogadosEl-Borai & PartnersDittmar & IndreniusFunes de Rioja & AsociadosGretteHogan LovellsHomburgerIkeyi & ArifayanKGDI Law FirmKochhar & Co.Koep & PartnersLatournerie Wolfrom & AssociésMNKSOgletree DeakinsPachiu & AssociatesPapacharalambous & Angelides LLCPiper AldermanRandl PartnersSalans LLPShook, Hardy & Bacon L.L.P.Stikeman Elliott LLPToffoletto De Luca Tamajo e SociPublished by Global Legal Group, with contributions from:
  2. 2. www.ICLG.co.ukDisclaimerThis publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualifiedprofessional when dealing with specific situations.Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720Contributing EditorsElizabeth Slattery & JoBroadbent, Hogan LovellsAccount ManagersBeth Bassett, BrigitteDescacq, Dror Levy, MariaLopez, Florjan Osmani,Oliver Smith, Rory SmithSales Support ManagerToni WyattSub-EditorsBeatriz ArroyoFiona CanningEditorSuzie KiddSenior EditorPenny SmaleGroup Consulting EditorAlan FalachGroup PublisherRichard FirthPublished byGlobal Legal Group Ltd.59 Tanner StreetLondon SE1 3PL, UKTel: +44 20 7367 0720Fax: +44 20 7407 5255Email: info@glgroup.co.ukURL: www.glgroup.co.ukGLG Cover DesignF&F Studio DesignGLG Cover Image SourceiStockphotoPrinted byAshford Colour Press Ltd.March 2013Copyright © 2013Global Legal Group Ltd.All rights reservedNo photocopyingISBN 978-1-908070-53-1ISSN 2045-9653Strategic PartnersThe International Comparative Legal Guide to: Employment & Labour Law 2013General Chapters:1 A Better Place to do Business? Employment Law Reform in the UK - Elizabeth Slattery & JoBroadbent, Hogan Lovells 12 High-Stakes EEOC Class Action Litigation in America - William C. Martucci & Kristen A. Page,Shook, Hardy & Bacon L.L.P. 63 Engaging Independent Contractors for Multinational Organisations - Carson Burnham & BonniePuckett, Ogletree Deakins 9Country Question and Answer Chapters:4 Albania Boga & Associates: Renata Leka & Emirjon Marku 165 Argentina Funes de Rioja & Asociados: Ignacio Funes de Rioja 236 Australia Piper Alderman: David Ey & Sharlene Wellard 307 Belgium Allen & Overy LLP: Pieter De Koster & Inge Vanderreken 378 Canada Stikeman Elliott LLP: Patrick L. Benaroche & Hélène Bussières 449 Chile Eduardo Vásquez Silva & Compañía, Abogados: Eduardo Vásquez Silva& Pablo Concha Hermosilla 5110 China Salans LLP: Dr. Iris Duchetsmann & Cynthia Zheng 5611 Colombia Cárdenas & Cárdenas Abogados: Lorena Arámbula & Juanita Vera 6312 Cyprus Papacharalambous & Angelides LLC: Loizos Papacharalambous& Nataly Papandreou 6813 Czech Republic Randl Partners: Nataša Randlová & Romana Náhlíková Kaletová 7514 Egypt El-Borai & Partners: Dr. Ahmed El Borai & Dr. Ramy El Borai 8215 Finland Dittmar & Indrenius: Seppo Havia & Jessica Brander 8816 France Latournerie Wolfrom & Associés: Sarah-Jane Mirou 9617 Germany Allen & Overy LLP: Dr. Hans-Peter Löw 10318 Greece KGDI Law Firm: Effie Mitsopoulou & Ioanna Kyriazi 11019 India Kochhar & Co.: Manishi Pathak & Poonam Das 11820 Italy Toffoletto De Luca Tamajo e Soci: Franco Toffoletto & Valeria Morosini 12521 Japan Anderson Mōri & Tomotsune: Nobuhito Sawasaki & Sayaka Ohashi 13222 Kosovo Boga & Associates: Sokol Elmazaj & Besarta Kllokoqi 13923 Luxembourg MNKS: Marielle Stevenot & Sabrina Alvaro 14524 Macedonia Debarliev, Dameski & Kelesoska Attorneys at Law: Emilija KelesoskaSholjakovska & Elena Miceva 15325 Malta CSB Advocates: Doran Magri Demajo & Ann Bugeja 16026 Mexico Barrera, Siqueiros y Torres Landa, S.C.: Hugo Hernández-Ojeda Alvirez& Luis Ricardo Ruiz Gutiérrez 16827 Namibia Koep & Partners: Hugo Meyer van den Berg & Stephen Vlieghe 17428 Nigeria Ikeyi & Arifayan: Nduka Ikeyi & Sam Orji 18129 Norway Grette: Johan Hveding & Jens Kristian Johansen 18730 Portugal Caiado Guerreiro & Associados: Ricardo Rodrigues Lopes& David Coimbra de Paula 19431 Romania Pachiu & Associates: Mihaela Cracea & Corina Radu 20032 Spain Abdón Pedrajas & Molero: Sonia Cortés & Jaime Fernández Rodríguez 20833 Switzerland Homburger: Dr. Balz Gross & Dr. Roger Zuber 21634 Turkey Bener Law Office: Maria Celebi & Batuhan Sahmay 22235 United Kingdom Hogan Lovells: Elizabeth Slattery & Jo Broadbent 22836 USA Shook, Hardy & Bacon L.L.P.: William C. Martucci & Carrie A. McAtee 234
  3. 3. Chapter 26ICLG TO: EMPLOYMENT & LABOUR LAW 2013WWW.ICLG.CO.UK168© Published and reproduced with kind permission by Global Legal Group Ltd, LondonBarrera, Siqueiros y Torres Landa, S.C.Mexico1 Terms and Conditions of Employment1.1 What are the main sources of employment law?The main sources of employment law are: (i) constitutional rights;(ii) international treaties approved by the Mexican Senate; (iii)precedents of the Supreme Court of Justice (jurisprudence); (iv)general rules of law; (v) tradition; and (vi) general rules of fairness.1.2 What types of worker are protected by employment law?How are different types of worker distinguished?The Mexican Federal Labour Law (MFLL) protects all theindividuals involved in an employment relationship. The MFLLconsiders three different types of workers/employees: (i) unionisedworkers; (ii) non-unionised workers; and (iii) entrust employees.1.3 Do contracts of employment have to be in writing? If not,do employees have to be provided with specificinformation in writing?According to the MFLL, employment contracts must bedocumented in writing; otherwise, in case of litigation, theemployer is obligated to evidence the working conditions.1.4 Are any terms implied into contracts of employment?Employment agreements could be executed for a fixed time,specific task, initial training, specific season or indefinite time.Employment agreements must contain: (i) information of theparties; (ii) term of the employment; (iii) services to be rendered bythe employee; (iv) place in which the services will be rendered; (v)salary information (i.e., amount, terms to be paid, payment day,etc.); (vi) training references; (vii) holidays; and (viii) any otherworking condition agreed to by the parties.1.5 Are any minimum employment terms and conditions setdown by law that employers have to observe?The minimum employment rights are: (i) vacation: six days for thefirst year of services, eight days for the second year of services, tendays for the third year of service, after that, vacation days areincreased by two days every five years; (ii) vacation bonus: 25 percent of the salaries related to vacation days; (iii) 15 days of salaryas Christmas bonus; (iv) maximum of 48 hours as weekly workshift; (v) a rest day or day off per week; (vi) possibility to be part ofthe profit sharing; and (vii) minimum wage (currently the dailyminimum wage in Mexico City is $64.76).1.6 To what extent are terms and conditions of employmentagreed through collective bargaining? Does bargainingusually take place at company or industry level?The employer and the trade union are able to agree on any terms andconditions of employment through collective bargainingagreements (i.e. benefits, compensation, work shifts, training,positions, etc.) as long as the agreement complies with theminimum mandatory rights and benefits granted by the MFLL, doesnot contain provisions that contradicts such law and is filed beforethe Labour Court.2 Employee Representation and IndustrialRelations2.1 What are the rules relating to trade union recognition?According to the MFLL, unions have the right to call a strikeagainst an employer in order to force the execution of a collectivebargaining agreement (CBA), regardless of whether the unionactually represents the majority of the employees. Due to theaforementioned, employers that do not have a CBA executed andduly registered before the Labour Court may face several calls tostrike. It is mandatory for the Labour Court to reject any calls tostrike of a trade union other than that with which the employer haspreviously executed a collective bargaining agreement dulyregistered before such authority.Labour Courts must reject any call to strike of a trade union other thanthat which the employer has previously executed a CBA dulyregistered; however, a different trade union does have the right to filea “Union Certification” procedure with the Labour Board. Thisprocedure, which consists in such second union arguing that it, ratherthan the union with which the Company has executed the registeredCBA, is the employees’organisation that represents the actual interestsof the majority of the workers in the company. In case the second tradeunion is able to prove that it is the organisation that represents CBA,and as such, will have all the rights and duties conferred upon the tradeunion, including the right to call to strike.2.2 What rights do trade unions have?According to the MFLL, trade unions have several rights, such as:prepare their own by-laws and regulations; elect theirLuis Ricardo Ruiz GutiérrezHugo Hernández-Ojeda Alvirez
  4. 4. WWW.ICLG.CO.UKICLG TO: EMPLOYMENT & LABOUR LAW 2013 169© Published and reproduced with kind permission by Global Legal Group Ltd, LondonBarrera, Siqueiros y Torres Landa, S.C. Mexicorepresentatives; and organise their management and administration,as well as their activities and their action programmes. In addition,trade unions may also file a call to strike to an employer in order toenforce the execution of a CBA, right to object the information filedby the employer to the Treasury Department in connection to profitsharing, request the employer to withhold the employees’contributions for the trade union agreed on the CBA, participate onthe preparation of the company’s training programmes, file a unioncertification procedure when they represent the majority of theemployees of an employer, and execute the CBA, among others.2.3 Are there any rules governing a trade union’s right to takeindustrial action?The MFLL recognises strikes as a temporary suspension of thework performed by a trade union of workers. The MFFL containsthe applicable rules for strikes and its procedure. The notice forstrike should be filed by the trade union before the competentLabour Court in order to accomplish one of the specific objectivesmentioned on the MFLL (review the CBA or law collectivebargaining agreement, obtain a balance between the employees’andthe employer’s rights, force the execution of a collective bargainingagreement or law collective bargaining agreement, secure thecompliance to a breach of the collective bargaining agreement,request the compliance to obligations related to profit sharing, andsupport another strike that shares any of the goals listed herein).The majority of the employees should perform the strike, otherwiseafter the strike initiates; the employer may file a procedurerequesting the inexistence of the strike.Except for forcing the execution of a CBA, only the trade union incharge of the CBA may call for a strike or give notice of the strike.It should give notice of the strike to the employer, including a listof its demands, the objective of the strike, and the exact date andtime when work activities will be suspended.Once a strike notice has been given to the employer, any, and all,action against the employer’s assets should be suspended.The Labour Union also should file a copy of the strike notice beforethe Labour Court at least six days prior to the strike in the case ofprivate companies, and at least ten days prior to the strike in thecase of public services. Within the forty-eight hours followingreceipt of notice, the employer should file a written answer with theCourt. The Court will then conduct a conciliation hearing.The employees should appear at the conciliation hearing to proceedwith the strike. The employer also should appear; otherwise thestrike notice remains in full force and effect. This pre-strike periodmay be extended at the request of the labour union, but the strikewill take place if no settlement is reached during this stage.During a strike, the employees should bring any ships, aircraft,trains, buses, or other means of transportation en route to their lastscheduled destinations. For strikes affecting hospitals, clinics, andsimilar establishments, patients should continue to receive careuntil transferred to another location.A minimum number of employees, as determined by the Court, alsoshould continue working in activities that would cause severeproblems or compromise the safety or well-being of the workplace,machinery, equipment, or raw materials, or the resumption ofsuspended business activities.The Court may refuse to approve a strike if it fails to meet therequirements in the MFFL. The employees should then return towork within twenty-four hours.It is illegal for employees to strike in a number of cases, such aswhen a majority of the striking employees engage in violent actsagainst the employer or his property, or where the employees workin government establishments or shops during wartime. If theCourt declares a strike illegal, the strikers’ employmentrelationships are automatically terminated.2.4 Are employers required to set up works councils? If so,what are the main rights and responsibilities of suchbodies? How are works council representativeschosen/appointed?There are no work councils considered by the MFLL.2.5 In what circumstances will a works council have co-determination rights, so that an employer is unable toproceed until it has obtained works council agreement toproposals?This is not applicable.2.6 How do the rights of trade unions and works councilsinteract?This is not applicable.2.7 Are employees entitled to representation at board level?This is not applicable.3 Discrimination3.1 Are employees protected against discrimination? If so, onwhat grounds is discrimination prohibited?The MFLL prohibited any kind of discrimination practice. Allindividuals involved in an employment relationship are protectedagainst discrimination on the grounds of: race; nationality; sexpreferences; immigration condition; religion; civil status; socialcondition; age; gender; and/or disability.3.2 What types of discrimination are unlawful and in whatcircumstances?Any kind of discrimination is unlawful. According to MFLLdiscrimination practices are prohibited from the hiring process.3.3 Are there any defences to a discrimination claim?In case of a discrimination action claim, the employer mustevidence that no discriminatory practice or policy are applicable oroccurred; otherwise, a fine and other sanctions could be imposed onthe employer.3.4 How do employees enforce their discrimination rights?Can employers settle claims before or after they areinitiated?Employees affected by discriminatory practices or policies couldfile or claim before the Labour Court or the National Board toPrevent Discrimination.Employers can settle claims before litigation is initiated or evenwhen litigation takes place.Mexico
  5. 5. ICLG TO: EMPLOYMENT & LABOUR LAW 2013WWW.ICLG.CO.UKMexico170© Published and reproduced with kind permission by Global Legal Group Ltd, LondonBarrera, Siqueiros y Torres Landa, S.C. Mexico3.5 What remedies are available to employees in successfuldiscrimination claims?Remedies could be anything from a fine award of US$30,000.00 toa severance payment.3.6 Do “atypical” workers (such as those working part-time,on a fixed-term contract or as a temporary agencyworker) have any additional protection?No, there is no additional protection for “atypical” workers.4 Maternity and Family Leave Rights4.1 How long does maternity leave last?According to MFLL, maternity leave will take 12 weeks (six weeksbefore the child is born and six weeks after). The period could benegotiated by the employee in agreement with the employer.4.2 What rights, including rights to pay and benefits, does awoman have during maternity leave?During maternity leave women are entitled to the benefits that theywould normally receive. In addition, the following rules areapplicable:Pregnant women may not work under hazardous conditions,perform industrial tasks during the night or duringextraordinary hours or during sanitary contingencies. Theirsalary, benefits and rights should not be affected.Statutory maternity leave may be extended as necessary ifwork is not possible because of the pregnancy or the deliveryof the child.During the nursing period, the new mother is entitled to twoadditional 30 minute rest periods per day to feed the child inan adequate and hygienic place set aside by the employer; ifthis is not possible the parties may agree to reduce her workshift one hour.When returning from maternity leave, the employee isentitled to return to her employment, provided that not morethan one year has passed since the date of delivery.Maternity leave does not affect longevity of service.The employer should have enough seats available forpregnant women.During maternity leave, the Mexican Social SecurityInstitute will pay the working mother 100 per cent over herdaily salary of social security contribution. If the maternityleave period is extended, she is entitled to 50 per cent of thedaily salary of social security contribution for a period of upto 60 days.4.3 What rights does a woman have upon her return to workfrom maternity leave?The rights of women rights after maternity leave are: (i) to beconsidered as a regular employee; and (ii) two daily breaks of 30minutes during the following six months as a lactation period.4.4 Do fathers have the right to take paternity leave?Yes, the employers are obligated to provide five working days aspaternity leave.4.5 Are there any other parental leave rights that employershave to observe?Yes, to provide pregnant women with a safe place to work. In caseof adoption, a maternity/paternity leave applies and the timecorresponding to the maternity and paternity leave shall beconsidering for purposes of seniority.4.6 Are employees entitled to work flexibly if they haveresponsibility for caring for dependants?Yes, if the employer and employee agree to modify the workingconditions, the employee shall be able to render services on aflexibility bases.5 Business Sales5.1 On a business sale (either a share sale or asset transfer)do employees automatically transfer to the buyer?Only in a share sale the employees continue working for the buyer.In the event of asset transfer, the following scenarios could beapplicable: (i) employees could be transferred to the buyer; (ii) theemployment of the personnel could be terminated; (iii) a mix ofscenarios (i) and (ii); and (iv) the employees could continueworking for the seller. The transfer of personnel is normallynegotiated during the process of acquisition.5.2 What employee rights transfer on a business sale? Howdoes a business sale affect collective agreements?The work conditions of the personnel could not be affected orreduced in case of an employer substitution (transfer of employees);therefore, if a CBA is applicable to the personnel, such anagreement must be transferred to the buyer.5.3 Are there any information and consultation rights on abusiness sale? How long does the process typically takeand what are the sanctions for failing to inform andconsult?There is no obligation on the employer to inform or consult with thepersonnel regarding a business sale. However, it is alwaysadvisable to comment and discuss the terms of the sale with theUnion representatives to avoid misunderstandings.5.4 Can employees be dismissed in connection with abusiness sale?If the decision is to terminate the employment of an employee due tothe business sale, the employer must pay the corresponding severance(three months of integrated salary, plus twenty days of integratedsalary for each year of services, plus a seniority premium).5.5 Are employers free to change terms and conditions ofemployment in connection with a business sale?No, if the working conditions/rights suffer a modification thatreduce the employee’s rights, the employee will be able to sue thenew employer asking for the maintenance of the labour rights or forthe termination of the employment and payment of the fullseverance, plus back salaries.
  6. 6. WWW.ICLG.CO.UKICLG TO: EMPLOYMENT & LABOUR LAW 2013 171© Published and reproduced with kind permission by Global Legal Group Ltd, LondonBarrera, Siqueiros y Torres Landa, S.C. Mexico6 Termination of Employment6.1 Do employees have to be given notice of termination oftheir employment? How is the notice period determined?There is no obligation for the employer to inform in advance aboutthe termination of employment.6.2 Can employers require employees to serve a period of“garden leave” during their notice period when theemployee remains employed but does not have to attendfor work?There is no prohibition for the employers to impose such acondition. However, the prevailing practice in Mexico is not to askfor a period of “garden leave” and terminate the employment theday on which the employee is informed.6.3 What protection do employees have against dismissal? Inwhat circumstances is an employee treated as beingdismissed? Is consent from a third party required beforean employer can dismiss?In case of a wrongful dismissal, the employee could sue theemployer asking for his/her reinstatement or the payment of fullseverance. An employee could be dismissed with cause by theemployer only if one or more reasons for termination determined byMFLL are applicable, in that case, the employer has the burden toprove the reason for termination, if the employer is not able to provethe above, the payment of full severance plus back salaries willapply. The employer does not require consent from a third party todismiss an employee.6.4 Are there any categories of employees who enjoy specialprotection against dismissal?No, there are not.6.5 When will an employer be entitled to dismiss for: 1)reasons related to the individual employee; or 2) businessrelated reasons? Are employees entitled to compensationon dismissal and if so how is compensation calculated?Only when the employer rescinds the employment due to the causeof termination stated by the MFLL, is it not obligated to pay theseverance; otherwise, if the employer terminates the labourrelationship without reasons for termination, the severance paymentwill have to be paid. Severance consists in the payment of threemonths of integrated salary plus twenty days of integrated salaryper year of services (integrated salary is calculated adding to thesalary all benefits and payments earned by the employee).6.6 Are there any specific procedures that an employer has tofollow in relation to individual dismissals?No, there are not; however, it is recommendable to executetermination agreements which must be ratified before the LabourCourt for its enforceability.6.7 What claims can an employee bring if he or she isdismissed? What are the remedies for a successfulclaim?Claims or legal actions that an employee can bring are: (i)reinstatement in his/her job; and (ii) payment of legal severances.In both cases, the payment of back salaries and other benefits arepart of the claims remedies.6.8 Can employers settle claims before or after they areinitiated?Yes, the employer is able to settle, before or during, a labour claimin any step of the procedure before the Labour Court resolves thecase.6.9 Does an employer have any additional obligations if it isdismissing a number of employees at the same time?No, there are no additional obligations. However if the personnelwill be substituted by new equipment or technology, the employermust pay, in addition to the severance, a month of integrated salary.6.10 How do employees enforce their rights in relation to massdismissals and what are the consequences if an employerfails to comply with its obligations?Employees are able to sue an employer, either, individually orjointly for their reinstatement or for a full severance payment; if theemployer obtains a resolution against its interests, and if it fails tocomply with its obligations, the Labour Court could order theattachment of goods in order to preserve the rights of the plaintiffsin the case.7 Protecting Business Interests FollowingTermination7.1 What types of restrictive covenants are recognised?From a labour perspective, restrictive covenants in general are notrecognised by the MFLL due to the provisions contained in Article5 of the Mexican Constitution. Such article expressly prohibitscovenants in agreements or contracts by means of which a person“restrains temporarily or permanently to a determined lawfulprofession, industry or business activity” and grants individualswith the right and freedom to engage in any lawful activity exceptwhen there is a valid resolution that determines that third party’srights are affected.In addition, the Mexican Constitution as well as the MFLL establishthat employees’ rights cannot be waived. This means thatrestrictive covenants or agreements run the risk of being considerednull and void.Regardless of the aforementioned, it is customary to includerestrictive covenants and confidentiality clauses either in theemployment contract, or in separate agreements, as grounds forjustified causes of termination of employment in case saidobligations are breached.It is also common to agree post-employment restrictive covenantson civil agreements in return for additional compensation foremployees in return for performance of said obligations.Restrictive covenants shall remain in full effect between the partiesuntil one of the parties brings an action against the other beforeMexico
  7. 7. ICLG TO: EMPLOYMENT & LABOUR LAW 2013WWW.ICLG.CO.UKMexico172© Published and reproduced with kind permission by Global Legal Group Ltd, LondonBarrera, Siqueiros y Torres Landa, S.C. Mexicocourts, in order for the latter to issue a decision declaring theagreement void before the Civil Courts. Once the Civil Courtdeclares the agreement to be null and void it will order for events tobe “restituted” to their initial status by means of which an employeewill be requested to deliver the compensation paid for performanceof the obligations of restrictive covenants.Notwithstanding, Industrial Property Law expressly includes that“the individual or company that contracts an employee that isworking or has worked as a professional, advisor or consultant thatrenders or has rendered services for another individual or entity inorder to obtain its trade secrets will be liable for the payment ofdamages and lost profits caused to such individual or entity”. Aperson or entity that, by means of any illegal way, obtainsinformation that contains a trade secret will also be liable ofdamages and lost profits.7.2 When are restrictive covenants enforceable and for whatperiod?There are no judicial precedents in this regard, based on ourexperience. In order for these clauses to be enforceable it isimportant that they are limited to a specific territory, specific periodof time, and identify the confidential information protected thereby.7.3 Do employees have to be provided with financialcompensation in return for covenants?It is advisable in order to strengthen their enforceability, for furtherinformation please refer to question 7.1.7.4 How are restrictive covenants enforced?This will depend on the restrictive covenants, as well as how theparties agree these covenants. One option may be by means of acivil agreement, filing a civil claim alleging damage and lost profitsdue to the breach of these covenants, and even criminal liability.Please refer to question 7.1 for further information regardingrestrictive covenants.8 Court Practice and Procedure8.1 Which courts or tribunals have jurisdiction to hearemployment-related complaints and what is theircomposition?Labour claims are resolved by Federal and Local Conciliation andArbitration Boards (Courts). The same are formed byrepresentatives from the government, the employees’ sector andemployers.8.2 What procedure applies to employment-relatedcomplaints? Is conciliation mandatory before a complaintcan proceed?All individual or collective disputes arising from labourrelationships between the employer and the employee or betweenthe employer and the trade union should be resolved before theLabour Courts that exist at the federal and local levels.a) Individual disputes generally arise when an employee files aclaim against an employer with the competent Board. Filinga claim initiates the “ordinary” procedure, after receiving theemployee’s claim the Board sets a day and time for a hearingthat has two stages (conciliation and claim and answer tosuch claim).During the conciliation stage, the Board seeks to facilitate asettlement between the employer and the employee. If theparties fail to settle, the lawsuit proceeds into its secondphase, claim and answer to such claim. The employee mayratify, clarify, or make further claims and the employer mayanswer and challenge these.Once this stage is finished, the Court sets an additionalhearing for the parties to offer and render evidence to supporttheir claims and objections. After introducing evidence, theparties are given time to file their final arguments. The fileis then submitted in order for the Labour Court to issue theresolution and notify each of the parties.After the parties are notified of the resolution, they havefifteen days to challenge it by means of a constitutionalproceeding (amparo) before the Collegiate Court of LabourMatters.b) The Collective Conflicts’ procedure depends on the type ofconflict filed by the parties [i.e., collective conflicts of aneconomic nature, and strikes]. (Please refer to question 2.3for further information).8.3 How long do employment-related complaints typicallytake to be decided?The labour procedure takes around two or three years to be decided.8.4 Is it possible to appeal against a first instance decisionand if so how long do such appeals usually take?The first instance resolutions are able to be appealed before theFederal Collegiate Tribunal by the “amparo” process. Such processtakes from five to nine months to be resolved.
  8. 8. WWW.ICLG.CO.UKICLG TO: EMPLOYMENT & LABOUR LAW 2013 173© Published and reproduced with kind permission by Global Legal Group Ltd, LondonHugo Hernández-Ojeda AlvirezBarrera, Siqueiros y Torres Landa, S.C.Paseo de los Tamarindos No. 150, P.B.Col. Bosques de las Lomas05120 Mexico D.F.MexicoTel: +52 55 5091 0137Fax: +52 55 5091 0123Email: hho@bstl.com.mxURL: www.bstl.com.mxEducation: Mr. Hernández-Ojeda completed his law degree atUniversidad Anáhuac del Sur (1990-1995).Recognition: Ranked Band U in Labour & Employment byChambers Latin America. Latin America’s Leading Lawyers forBusiness. The Client’s Guide 2011 and 2012. Chambers andPartners mentioned him, in the publications of 2010 and 2011, asone of the “Up-and-coming individuals” in their chapter of MexicoLabour & Employment.Latin Lawyer 250. Latin America’s Leading Business Law Firms2010 recommends him for his competitiveness and expertise.Who’s Who Legal Mexico 2010, 2011 and 2012 considered him asone of the most remarkable lawyers in Labour matters in Mexico.Memberships: Mexican Chair of the United States-Mexico BarAssociation, member of the Barra Mexicana Colegio deAbogados, the International Bar Association, and the AsociaciónNacional de Abogados de Empresa, Colegio de Abogados.Other activities: Speaker on labour-related matters for variousassociations, universities and international organisations.Luis Ricardo Ruiz GutiérrezBarrera, Siqueiros y Torres Landa, S.C.Paseo de los Tamarindos No. 150, P.B.Col. Bosques de las Lomas05120 Mexico D.F.MexicoTel: +52 55 5091 0155Fax: +52 55 5091 0123Email: lrg@bstl.com.mxURL: www.bstl.com.mxEducation: Mr. Ruiz received his law degree from the EscuelaLibre de Derecho (1973-1978).Recognition: Mr. Ruiz is recommended by Latin Lawyer 250.Latin America’s Leading Business Law Firms 2010 and 2011 forhis experience, education, and expertise. Chambers LatinAmerica. Latin America’s Leading Lawyers for Business. TheClient’s Guide 2011 and 2012 ranks him Band 2 in Labour &Employment. He has also been acknowledged by Who’s WhoLegal in 2011 and 2012 in Management, Labour & Employment.Memberships: Member of the Barra Mexicana Colegio deAbogados (Mexican Bar Association) and sits on the Labour LawCommission.Other activities: Mr. Ruiz has spoken at various seminars on thetopic of strikes for the Human Resources personnel, PlantManagers, and Legal Department of General Electric.BSTL, a leading Mexican law firm, offers personalised, timely, preventive legal solutions and representation to Mexican andinternational clients in various industries and the public sector. The firm is formed by a prestigious team of over 70 lawyers, notedfor their professional and academic excellence, and ethical standards in the exercise of the legal profession.BSTL has the necessary resources to meet clients’ challenges across virtually all areas of Mexican law.BSTL’s goal is to excel in the rendering of personalised legal services; the firm’s policy is based on placing clients as our toppriority, giving them the full benefits and value of each and every one of the firm’s members.BSTL members are known for their legal education and training, persistence and determination. They all treasure the ability toshare with clients those principles and objectives that set the firm apart in terms of quality, responsiveness, consistency andperseverance.Barrera, Siqueiros y Torres Landa, S.C. MexicoMexico
  9. 9. www.iclg.co.uk59 Tanner Street, London SE1 3PL, United KingdomTel: +44 20 7367 0720 / Fax: +44 20 7407 5255Email: sales@glgroup.co.ukCurrent titles in the ICLG series include:Alternative Investment FundsAviation LawBusiness CrimeCartels & LeniencyClass & Group ActionsCommodities and Trade LawCompetition LitigationCorporate GovernanceCorporate Recovery & InsolvencyCorporate TaxDominanceEmployment & Labour LawEnforcement of Competition LawEnvironment & Climate Change LawInsurance & ReinsuranceInternational ArbitrationLending & Secured FinanceLitigation & Dispute ResolutionMerger ControlMergers & AcquisitionsMiningOil & Gas RegulationPatentsPFI / PPP ProjectsPharmaceutical AdvertisingPrivate ClientProduct LiabilityProject FinancePublic ProcurementReal EstateSecuritisationShippingTelecoms, Media & InternetTrade Marks

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