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September 23, 2008

Expatriates in Mexico. Basham, Ringe y Correa. September 23, 2008. Mexican Legal Background.

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September 23, 2008

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  1. Expatriates in Mexico Basham, Ringe y Correa September 23, 2008

  2. Mexican Legal Background • Employees rendering services in Mexico are protected by the Mexican Federal Labor Law, regardless of their nationality, the place where the employment contract was executed or where the salary is paid. • Notwithstanding any provision in employment contracts whereby foreign law is chosen, the Mexican Federal Labor Law will apply and the Expatriate will enjoy all the benefits and rights therein established.

  3. U.S. Legal Background • Some U.S. federal anti-discrimination laws may continue to protect the Expatriate even while working in Mexico. • The three anti-discrimination laws – • Title VII of the Civil Rights Act of 1964 (race, national origin, creed, sex, pregnancy and religion) (“Title VII”); • Age Discrimination in Employment Act of 1964 (“ADEA”) ; and • Americans with Disabilities Act of 1990 (“ADA”). • These law apply extraterritorially if • U.S. citizen • Works outside U.S. (in Mexico) • For American company or a company controlled by an American company • Result, Expatriate may have dual legal protection

  4. Legal Background • In addition to the Expatriate’s base salary, in Mexico there are certain mandatory benefits, which cannot be waived or contract out. • Employers are not allowed to modify on a unilateral basis any labor condition, therefore in case of a change, the employer requires the Expatriate’s written consent to the modification, in order to avoid labor liabilities.

  5. Mexican Legal Background • Mexican income tax and social security dues must be withheld by the employer and remitted to local authorities. • Mandatory fringe benefits provided by the FLL: • Annual vacation – 6 days minimum • Vacation premium of 25% over base salary paid to Expatriate while on vacation • Year-end bonus (Christmas Bonus) equivalent to 15 days salary • Profit-sharing (10% employer’s pre-tax earnings to be distributed among all employees, except General Managers) • Social security benefits

  6. U.S. Legal Background • U.S. corporate office wants to keep Expatriate on U.S. payroll; any exceptions to the Mexican legal rules? • Expatriate frequently wants to maintain post-retirement benefits (401k or pension)in U.S. May require a split payment of salary. • IRS Publication 54 – If Expatriate works for an American company in Mexico, U.S. home office may have to withhold income taxes in the U.S. too. • No bilateral International Totalization Agreement between Mexico/U.S. Result, no legal way out of paying social security contributions in Mexico

  7. Dual Employment Relationships • Presumption that the employee is working for both the parent and the Mexican Companies. • Entails tax implications - permanent establishment for the parent Company.

  8. Dual Employment Relationships • Expatriates often file a claim, upon dismissal, arguing a dual employment relationship and consequent entitlement to all FLL rights. • If a dual employment is determined by the labor authority, both companies shall jointly comply with FLL mandatory provisions. • Severance Payment in case of an unjustified dismissal 3 months + 20 days per year of services (over aggregate salary) + seniority premium (12 days per year capped at twice the minimum wage) + pending fringe benefits.

  9. Foreign Co. Pays compensation Labor relationship “Secondment Agreement” Foreign Co. Mex. Co. Mex. Co. Services rendered Possible Alternatives • 1.- Secondment Agreement • Expatriates are sent on a temporary international assignment. • Foreign Co. retains control of employees. • Foreign Co. accrued seniority will be transferred to the Mex. subsidiary. • Mexican Co. shall execute employment agreement with the Expatriate and register him/her to Social Security (IMSS, INFONAVIT)

  10. Foreign Co. Payment of “fringe benefits” $ Pays Expat. Income “sleeping” employment agreement Mex. Co. “effective” labor relationship Partial payment of salary $ Possible Alternatives • 2.- Split Contract (three separate contracts) • Disruption agreement (Foreign and Mex. Co.) • Sleeping contract (Expatriate and Foreign Co.) • Employment agreement (Expatriate and Mex. Co.)

  11. Possible Alternatives • 3.- Mirror Payroll • Employee enters an employment agreement with Mex. Co. • Foreign employment agreement will be “sleeping”. • Mex. Co. shall comply with all Mexican fringe benefits including Social Security dues. • Mex. Co. •  • Records 100% income of the Expat. Withholds tax and Social Security dues • Foreign Co. •  • Deposits $ • 100% total income of the Expat.

  12. Termination of the Labor Relationship • In Mexico there is no employment at-will, therefore when an Expatriate is terminated without legal cause, he/she shall receive a severance payment. • It is advisable to refrain from delivering termination notices, unless they comply with the Mexican Federal Labor Law, as in Mexico employers have the burden of proof.

  13. Termination of the Labor Relationship • There is no notice period - terminations can have immediate effect. • It is always advisable to execute termination agreements and general releases, which must then be ratified with the Labor Board, as well as to give notice about the employment termination to immigration authorities.

  14. Conclusions • Considering the risks involved for the parent and subsidiary Companies we recommend analyzing the specific case of an Expatriate being under an international assignment, in order to avoid labor and social security liabilities. • Be sure to address immigration issues as Expatriates require work visa and hiring date shall be consistent with date of entry to Mexico. • Carry out terminations in strict compliance with the applicable law in order to avoid future labor liabilities.

  15. Oscar de la Vega Partner, Basham Ringe & Correa, S.C. Paseo de los Tamarindos No. 400A-9th floor, Bosque de las Lomas 05120 Mexico, City Tel: (5255) 5261 0442 E-mail: oscardlv@basham.com.mx Website: www.basham.com.mx

  16. E. Johan Lubbe Partner Jackson Lewis LLP One North Broadway, 15th Floor White Plains, NY 10601-2329 Direct: (914) 514-6114 Fax: (914) 328-1882 E-mail: lubbej@jacksonlewis.com Website: www.jacksonlewis.com

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