The reform for the reduction of the workweek from 48 to 40 hours in Mexico will make it necessary for companies to reorganize their work schedules and implement schemes that, while provided for in the law, were not fully applied.
The changes to the law introduce concepts such as hour banks, reduced work hours, payment by the hour and triple wage hours, which could be used to comply with the demands of the new legislation. In the text submitted to Congress by the Presidency, a key point is that companies must keep a stricter control of the hours that are worked by the employee.
That is, the new employer obligation to record work hours electronically is incorporated, including start and finish times, with the objective of ensuring that ordinary worked hours and overtime are duly documented in accordance with the new parameters.
It is expected that, in order to have this requirement complied with, the Department of Labor will issue the corresponding provisions. “Companies have had ample time to prepare, and large companies have been working very intensively
on improving attendance controls in order to prevent any type of overtime drain, now that this will be more in demand”, said Jorge Sales, a labor lawyer.
It is yet to be seen how this electronic record will be managed, he added. The hope is that it can be applicable in companies with a certain number of employees, as smaller companies will hardly have the infrastructure to maintain electronic records.
In regard to the concept of “hour banks”, it is already included in the current law, but it can now be regulated and provide flexibility in hiring, he considered.
An hour bank is when a worker is hired for 50 hours and the employer uses these hours as needed. It must not be confused with hourly pay with flexible working hours, he said.
“For example, the worker works for 20 hours this week, he doesn’t work next week, and the third week he works for 10 hours, and so forth until the hours are used up”, Sales explained.
He said that some companies are already doing this, but that it entails several challenges in regard to the hiring modality, as it is a type of intermittent contracting.
He considered that these hour banks could be the most complex implementation of the reform.
“It is a good thing that it is being planned for, as I believe that it is a way of being consistent with these labor relations that are already modern and flexible. The crux of the matter is that the entire legal framework has to be harmonized”, the expert said. The other modality is the compressed workweek, which refers to jobs in which people work very intensely from Friday to Sunday and then they don’t work for the rest of the week, as in the entertainment industry or in public performances, for example.
What the reform is doing is acknowledging that there are many realities that were already present in the work arena, Sales stated.
For the De la Vega & Martínez Rojas Law Firm, the reform modifies the concept of workweek. It is currently defined as the time that the worker is “at the employer’s disposal”.
However, now it is the time during which the worker “performs subordinated activities in favor of the employer”, at the same time that it allows the workweek to be distributed by mutual agreement between the parties.
It also provides that overtime (deriving from extraordinary circumstances) cannot exceed 12 hours per week, which can be distributed in up to four hours per day and four days per week, and which must be paid at double the rate (currently, it is up to 3 hours per day and 3 days per week).
If this threshold is exceeded, overtime must be paid at triple the rate, without exceeding four additional hours (a limit that was not previously provided for by law) or ever exceeding a total of 12 hours of work in one day.
Germán de la Garza, a lawyer at Fisher Phillips, said that some companies are resorting to hiring more personnel and others are implementing overtime.
