On July 2, 2019, the Official Federal Gazette published an amendment to the Federal Labor Law (“FLL”) and the Social Security Law (“SSL”), in connection with domestic workers (“Domestic Workers”). The purpose of this amendment is to improve their employment conditions, given their historic precarious employment conditions and vulnerability of rights to which they have been subject.
Domestic Workers are defined as those who carry out activities of care, cleaning, assistance, and other household activities, in exchange of compensation, if such activities do not generate an economic benefit for the employer. The amendment recognizes three types of Domestic Workers:
- Those who work for an employer and reside in the domicile. These workers shall be entitled to the following additional rights:
- A rest period of at least 9 consecutive hours during the night and 3 hours between morning and afternoon activities. If the Domestic Workers do not freely enjoy said rest periods, such hours shall be considered as overtime worked.
- The maximum daily work shift, for day time, shall be of 8 hours.
- Those who work for an employer but do not reside in their domicile.
- Those who work for different employers but do not reside in the domicile of any of them.
Hiring teenagers under 15 years of age is strictly prohibited.
Also, additional obligations are provided for the employers in connection with the recruitment of minors. The compliance with the following provisions will be verified by the competent authority: (1) Request a medical certificate two times a year; (2) A maximum work shift of 6 hours per day and 36 hours per week; (3) If the worker has not yet concluded his/her middle school education (Junior High School), the employer shall ensure she/he does; and (4) If the worker resides in the domicile where she/he carries out her/his activities, she/he must have a guaranteed safe place to spend the night.
Domestic employment relationships must be agreed upon in writing. The employment agreement shall contain: (i) name of the contracting parties, (ii) location of the workplace, (iii) entry date and duration of employment, (iv) tasks to perform, (v) salary, benefits and form of payment, (vi) work shift, (vii) vacations, (viii) daily and weekly rest periods, (ix) food and housing, if applicable, (x) the terms and conditions regarding the termination of employment, and (xi) work tools.
The employer shall not request a medical certificate to the person that is intended to be hired to demonstrate if she is or is not pregnant, and if she is dismissed during her pregnancy, discrimination will be assumed. Also, Domestic Workers shall have the right to the corresponding vacations and vacation premium, food, one and a half uninterrupted days to rest, fully paid, mandatory holidays, obligatory access to social security, and Christmas bonus.
It is strictly prohibited to discriminate Domestic Workers either in their employment conditions or relationship. Any action that seeks to undermine the worker’s dignity and integrity is also prohibited. Any dismissal that involves gender-based violence and discrimination shall be deemed an unjustified dismissal.
Domestic Workers must give notice to their employers with at least 8 days prior to the termination of the employment relationship. The employer is also entitled to terminate the employment relationship at any time, as long as the corresponding severance is paid. For such purpose, she/he must give notice to the worker with at least 8 days prior to the termination.
If the Domestic Worker agrees, payment of salary can be made through bank transfers and through any other legal way.
Domestic Workers shall be registered before the Mexican Institute of Social Security and therefore be subject to its insurance in accordance with the mandatory regime. In accordance with the transitory Articles third and fourth, the provisions for the formal registration of Domestic Workers in the mandatory social security regime shall come into force once the necessary legal adjustments and reservations have been made to ensure the operational success of the recognition of this right. Such process shall be concluded on March 31st, 2021, at the latest. In the meantime, the Employer remains obliged to guarantee the right to healthcare and cover burial expenses in case of the death of the Domestic Worker.
Since transitory Articles do not specify the date in which the remaining provisions (different from the enrollment of Domestic Workers at the Mexican Social Security Institute) shall come into force, it shall be considered the three business days term established by Article three of the Federal Civil Code. The official publication in Spanish can be accessed directly at this link.