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The hiring of independent commissioned contractors or those known as commercial agents in Mexico is anissue that must be analyzed very carefully by companies interested in entering into such arrangements, even ifthese companies are foreign. Parties seeking to hire independent commissioned contractors to carry out certaineconomic activities in Mexico, or who already use such, should take into account different aspects of Mexicanlaw to avoid falling into situations that can lead to obligations for which such parties may not be prepared. Thehiring of independent commissioned contractors may have implications not only of a labor nature, but also withrespect to social security and fiscal matters. In this regard, in accordance with that established in Article 285 ofMexico’s Federal Labor Law (FLL), the independent commissioned contractors in Mexico hired as commercialagents, insurance agents, as well as vendors, travel agents, promoters, or sales or commission agents and othersimilar agents, may be considered employees of the contracting company for all purposes under the FLL when“his or her activity is permanent, except when they do not personally conduct the work or when they onlyintervene in isolated operations.” Mexico’s judicial and labor authorities, under various interpretations of theFLL, have determined criteria pursuant to which those parties hiring such service agents may be consideredtheir employers. This rule applies regardless of whether the foreign company has a physical presence in Mexico,given that this does not allow them to avoid being subject to the application of the provisions established in theFLL and other applicable Mexican laws, as well as various other obligations such as taxes, payment of socialsecurity fees and other obligations with which all employers within the Mexican territory must comply.Additionally, social security authorities may also petition the aforementioned judicial and labor authorities toattempt to charge social security fees, in the event that it is determined that these agents were employees of suchcompanies when they rendered services. Another important topic to consider in such relationships is thepossibility that the hiring of these agents may constitute the creation of a permanent establishment in Mexicofor tax purposes for the employer. In accordance with that established in the Mexican Income Tax Law.Therefore, it is important for those companies that intend to hire independent commissioned contractors orcommercial agents to render services in Mexico to seek legal advice from attorneys who will help them todetermine, on a case by case basis, the best strategy to follow in conducting such contracting activities, inaccordance with the results sought by the company and in compliance with applicable law.
On April 23, 2013, the Mexican Department of the Economy published in the Official Journal of the Federationthe “DRAFT of Mexican Official Standard PROY-NOM-024-SCFI-2013, commercial information forpackaging, instructions and warranties for electronic, electric and home appliance products.” Its purpose is tomake the contents of the Draft known so that all interested parties may submit comments to the draft within 60calendar days following its publication, pursuant to the methods indicated therein. Therefore, comments to thedraft standard may be considered at the meeting of the National Advisory Committee for User Safety,Commercial Information and Trade Practices, prior to the publication of the new rules as a final standard. Uponits publication as a final standard, this new standard will cancel and replace the current standard, NOM-024-SCFI-1998. Nevertheless, one should consider that the published draft does not include major changes to thetext of the existing standard, because as evidenced by its content and as reported by the General Director ofStandards of the Mexican Department of the Economy, the new draft is focused on including the necessarybasis to protect consumers against the imminent conversion by the television industry to full adoption of digitalsignal transmission and discontinuance of transmission by means of an analog signal. The rest of the standardwill remain the same. It is expected that by 2015 transmission by means of analog television signal will bediscontinued in its entirety, which will render any television reception device that does not read digitaltelevision transmissions obsolete. For television manufacturers who do not utilize digital televisiontransmissions, the new standard provides for the obligation to include the following notice on their packagingand labels: "DOES NOT receive digital television signals" This notice must be displayed in a clear and visiblemanner and must be made known to the consumer prior to the purchase, requiring the placement of a labeladhered to the screen or a notice on the border of the television while on display. The inclusion of thisrequirement in the proposed draft is consistent with the changes previously made to NOM-024-SCFI-1998which became effective in April 2012, by means of which other commercial notices were required with respectto televisions in compliance with the adoption by Mexico of the A/53 standard of the Advanced TelevisionSystems Committee in 2004. However, the notice requirements are now clearer. The draft still requires sellersand distributors to verify compliance before offering the products to the public, as it considers them jointly andseverally liable along with domestic or foreign manufacturers.
The Second Chamber of the Supreme Court of Justice of the Nation (SCJN) recently approved the ruling bycontradiction to ruling number 2a./J. 53/2013 (10a.) titled "Personal Notifications in Labor Legal Proceedingsshall be given directly to the interested person or the authorized person.” In this ruling, the SCJN determined thatbased on a literal interpretation of Article 744 of the Federal Labor Law, it is understood that personal notifications shall be given to the interested person or to a person which he or she has authorized, at the premisesof the Labor Board or at the address specified for such purpose. As to the latter case, if the respective person isnot found, a copy of the corresponding resolution will be left at such location. In this regard, the Second Chamberdetermined that the process server must give the corresponding notification in person to the interested person orthe person authorized to receive such, and only in their absence may the process server deliver the notification tothe person found at the specified address, certifying such act in the corresponding record. This formality shouldbe observed with respect to these kinds of notifications, even if and when they take place at the specified address,as this does not relieve the process server from compliance with the rule requiring the presence of the interestedperson or of the authorized person. This ruling is pending publication in the Federal Weekly Court Gazette.
Based on Mexico's labor laws, any employer that seeks to terminate personnel should be careful with the implementation of the appropriate documentation, from the point of hiring personnel until termination of the employment relationship. Otherwise, the employer may have trouble terminating the employment relationships, given that Mexican labor law protects employee rights, irrespective of whether employees are of Mexican or foreign nationality.As a fundamental principle, Mexican labor law establishes that employees may not waive their labor rights. Therefore, any provision stating otherwise will be null and void and have no value. It is important to note that the Federal Labor Law is extremely protective of employee rights and expressly states that for the interpretation of labor regulations in Mexico, the interpretation that is more favorable to the employee will prevail.On the other hand, it is also important to mention that the individual employment agreement is the appropriate document upon which employers should rely in order to establish and evidence the conditions under which their workers will be hired. The Federal Labor Law states that the lack of execution of a written individual employment agreement does not deprive the employee of the rights arising from employment regulations and the services rendered, since the responsibility for failure to comply with this formality is attributed to the employer.
Mexico's new Amparo Law (Ley de Amparo) was published and entered into force during the month of April, 2013, establishing new legal concepts such as the general application of some case decisions issued by federal courts in which such courts decide to reaffirm the unconstitutionality of a law or generally observed legal provision. Such case decisions reaffirming the unconstitutionality of a law are defined as "General Declarations of Unconstitutionality.. The effect of general application, or erga omnes, of certain decisions issued by Supreme Courts of other countries has proven to be a powerful and useful tool in controlling attempted lawmaking activities by judicial authorities to review and interpret the application of laws and other general dispositions. Unfortunately, two important limitations exist on the broad effect of generally applicable declarations of unconstitutionality of laws in Mexico, which are: (i) such does not apply in tax cases; and (ii) such may not be granted with respect to judicial decisions issued under the previous, now abrogated, Amparo Law (Ley de Amparo). The first restriction is totally without foundation and shows the federal government's fear of the negative economic impact on public finances that such a general application of judicial decisions could have in cases judging the constitutionality of tax issues. Generally applicable judicial decisions on a law's unconstitutionality could serve as a regulatory valve on fiscally abusive laws that run contrary to the constitutional principles contained in Mexico's Federal Constitution. If tax laws are declared as generally unconstitutional, then reaffirmed decisions confirming such unconstitutionality should have broad, general effects on all similar cases. Further, the restriction on tax procedural laws not being subject to general application and reaffirmation of unconstitutionality is similarly unjustified. The second of the restrictions referred to above limits the scope and effects of the general declarations of unconstitutionality in important ways because such could not be created in all cases resolved by the Mexican Federal Courts before the enactment of Mexico's new Amparo Law, which creates confusion and limits the scope of new general declarations of unconstitutionality. For decades Mexican federal courts have established a real theory of unconstitutionality in various matters with respect to which Mexico's Supreme Court of Justice; now it is unable to issue general rulings of unconstitutionality in such areas. It is truly shameful that this important formula of control of the legislation activities has been mutilated, which has left the real value of this relatively new juridical figure in doubt. Of course, one must distinguish the general declarations of unconstitutionality from other mandatory case decisions issued by federal courts. In this latter case, we are dealing with individual decisions issued in specific cases in which the court may even deal with matters of unconstitutionality of laws, but only applies to the case at hand in which a party has filed its Amparo lawsuit and the application of jurisprudential precedent. This aspect deals with the principle of relative effectiveness of Amparo lawsuit decisions and does not provide a generally applicable precedent, as would be the case if a general declaration of unconstitutionality were involved. A specific process exists for general declarations of unconstitutionality, which is indispensable to follow so that the general application of court resolutions of unconstitutionality may be given effect. Such process requires Mexico's Supreme Court of Justice to declare, at a minimum, on a second occasion, the unconstitutionality of a law or general provision, such as an international treaty or regulation to an existing law. As part of a very peculiar procedure that applies in the case of Mexico, upon the issuance of a reaffirmed declaration of unconstitutionality of a law or general rule, the Supreme Court of Justice shall also notify Mexico's Federal Congress, or the body that issued the general rule that has been declared unconstitutional, so that, within a term of 90 days, such body shall amend or repeal the law or general disposition that has been declared unconstitutional. If such law or general rule is not amended or repealed, Mexico's Supreme Court will issue a general declaration of unconstitutionality, which shall define the date such decision will enter into force and shall specify the scope and effects of the declaration of unconstitutionality. Finally, general declarations of unconstitutionality may not be applied retroactively, except in the case of criminal law matters, in which general declarations of unconstitutionality benefit the indicted or sentenced party. While the creation of this new form of constitutional control over judicial lawmaking power is welcomed, it is a shame that it has been saddled with all of these restrictions since its creation.
