CDD regulados: Si

Razones de utilización legítima de CDD: razones materiales y objetivas

Remarks

The employment relationship may be for a specified piece of work or of specified duration, seasonal, or of unspecified duration. In the absence of any express stipulation, the relationship is to be deemed to be of unspecified duration.
A contract for a specified piece of work may be made only when such contract is required by the nature of the work (art. 36, FLA).
A contract of a specified duration may be made only in the following cases (art. 37, FLA):
*where the nature of the work to be done so requires;
*when the contract is to provide a temporary substitute for another employee; and
*in the other cases provided for in this Act.

Employment relationships for work in mines lacking in minerals capable of paying the cost of the operation or for the reopening of abandoned or unworked mines may be for a specified period, for a specified piece of work or for the investment of a fixed capital sum (art. 38, FLA).

If on the expiry of the specified period the material to be worked still subsists, the employment relationship continues for as long as this circumstance continues (art. 39, FLA).

Número máximo de CDD consecutivos: sin restricción

Remarks

No statutory limitation.

Duración máxima acumulativa de CDD consecutivos: sin limitación

Remarks

No statutory limitation.

Duración maxima del periodo de prueba (en meses): 6 meses

Remarks

•Article 39-A establishes that: In contracts for an undetermined period of time and those exceeding 180 days, a probationary period of no more than 30 days can be established, with the sole aim of verifying that the employee meets the requirements and knowledge demanded for the vacancy.

The probationary period set in the previous paragraph, can extend to 180 days, only for the recruitment of directing and managing posts, or other persons exercising directing or management functions in the enterprise or business, or to perform technical or specialized tasks. […]
This modality has to be agreed in writing, otherwise the employment relationship will be considered permanent (Art. 39-C).

There is an additional modality to the contract/employment relationship included in Art. 39-B for initial training. The maximum duration is of 3 months. For directing and management posts or specialized post this period could be extended up to 6 months. This modality has to be agreed in writing, otherwise the employment relationship will be considered permanent (Art. 39-C).

Obligación de motivar el despido: Si

Remarks

Art. 47 FLA.

Motivos autorizados (despido justificado): conducta del trabajador, razones económicas, capacidad del trabajador

Remarks

•The FLA establishes a distinction between dismissal (despido) (art. 47) and termination (terminación) (art. 53).
Under the FLA dismissal (despido) can only be justified by reasons related to the worker's conduct (listed below). Economic reasons and, worker's incapacity are considered to be grounds for termination (terminación) in addition to other grounds such as force majeure, death of the worker, termination of the work. (art. 53)

*worker's conduct: art. 47 FLA provides for a detailed list of acts that allows the employer to dismiss the workers:
- if the worker or the trade union which proposed or recommended him or her deceives the employer by means of false certificates or references attributing to the worker abilities, skills or qualities which he or she does not possess. These grounds for dismissal cease to be operative after the worker has completed 30 days in employment;
- if the worker in the course of his or her employment commits a dishonest or dishonourable act, violence, threats or ill-treatment towards the employer or any member of the employer's family or the top management or managerial personnel of the undertaking or establishment, or against the clients or suppliers of the employer except in the case of provocation or self-defence;
- if the worker commits any of the acts mentioned in the preceding clauses towards any fellow workers and workplace discipline is affected as a consequence of such acts;
- if the worker commits outside his or her employment (rendering of services) any of the acts mentioned in the second ground above and these acts are of such a serious nature as to render the fulfilment of the employment relationship impossible;
- if the worker in the performance of his or her work or in connection therewith willfully causes material damage to the buildings, works, machinery, tools, raw materials or other objects connected with the work;
- if the worker causes damage as in the preceding clause of a serious character acting without malicious intent but with negligence which is the sole cause of the damage;
- if the worker by his or her inexcusable imprudence or carelessness endangers the safety of the establishment or the persons therein;
- if the worker commits immoral conduct in the establishment or workplace and/or sexual harassment against any other person in the establishment or workplace;
- if the worker reveals manufacturing secrets or communicates matters of a private character to the detriment of the undertaking;
- if the worker is absent from work more than three times in a period of 30 days without the employer's permission or without sufficient reason;
- if the worker refuses to obey the employer or his or her representative without sufficient reason in matters connected with the work under the contract;
- if the worker refuses to adopt preventive measures or follow the procedures laid down for the prevention of accidents or diseases;
- if the worker attends work in a state of intoxication or under the influence of a narcotic or harmful drug unless, in the latter case, he or she has a medical prescription. Before commencing service, the worker should inform the employer of the facts and submit a certificate signed by a medical practitioner;
- if the worker receives a non-appealable judgment sentencing him or her to a term of imprisonment preventing him or her from fulfilling the obligations under the employment relationship;
-if the worker lacks the documents required by the legislation, necessary to provide a service, whenever it is the worker’s fault and it exceeds the period of time foreseen in art. 43 section IV ; and
- on grounds similar to those laid down in the preceding clauses if they are of equal gravity and entail similar consequences as far as the work is concerned.

*Worker's capacity: according to art. 53 IV) FLA, the worker's physical or mental incapacity or obvious disability making it impossible for him or her to perform the work constitutes a valid ground for termination. However, if the disability comes from a non-professional risk the worker is entitled to, and can decide between, being placed in a different job or receiving compensation (equivalent to 1 month salary plus the seniority award –Art. 162-) as per art. 54 FLA.
Note that poor performance of the worker is not a statutory ground for dismissal.

*Economic reasons: according to art. 434 FLA, constitute reasons for termination:
- the evident and notorious inability to pay the operations/exploitation of the undertaking (II);
- statutory declaration of insolvency proceedings or bankruptcy only if the competent authority or the creditors decide on the definitive closure of the undertaking or the definitive retrenchment of production (V).
No other economic reasons are listed.

Motivos prohibidos: estado civil, embarazo, responsabilidades familiares, raza, sexo, orientación sexual, religión, opinion política, origen social, edad, afiliación sindical y actividades sindicales, discapacidad, situación económica, lengua, participación en una huelga legal, estado de salud, prestar servicio como jurado, cumplir obligaciones cívicas, origen étnico

Remarks

* A dismissal on the ground of trade union membership or participation in a lawful strike amounts to a dismissal without cause (art. 123 A XXII of the Constitution).

* Art. 3 of the FLA prohibits discrimination between workers on the grounds of ethnic or national origin, race, sex, age, disabilities, social condition, health condition, religion belief, condition of migrant, opinions, sexual orientation, marital status or any other ground threatening human dignity .

(Note also that Art. 1 of the Constitution establishes a general prohibition of any discrimination on the grounds of ethnic or national origin, gender, age, disabilities, social condition, health condition, religion, opinions, sexual orientation, marital status or any other ground threatening human dignity or which aims to diminish human rights and freedoms).

See also art 1(III) and 9 Federal Law to prevent and eliminate discrimination of 2003, last amended in 2012.

•Pregnancy, change of marital statutes and taking care of underaged children - art 133 (XV) FLA : The employers and their representatives cannot dismiss or coerce an employee, directly or indirectly, on the grounds of pregnancy, change of marital status or for taking care of underaged children. For pregnancy and maternity, see also art 170 FLA.

Trabajadores que gozan de una protección particular (fuero): trabadores con relevantes años de servicio

Remarks

*Art. 161 FLA: Workers with more than 20 years of service can only be dismissed on of the grounds listed art. 47 (reasons related to the worker's conduct) provided that such reason is particularly serious or makes it impossible to continue the employment relationship.

Forma de la notificación del despido al trabajador: escrita

Remarks

Art. 47 FLA: written notification clearly stating the conduct –or conducts- motivating the dismissal, and the date or dates when such conduct happened. The written notification shall be delivered to the employee in person at the time of the dismissal or shall be communicated to the corresponding Tribunal within the next five working days. To this end, the employer shall provide the last registered residence address of the employee, so the authority can personally notify the employee.
The statute of limitations to file any legal actions deriving from a dismissal will only start running until the worker receives personally the notification.
The failure to notify the worker personally or through the Tribunal, presumes the dismissal as unjustified, unless evidence to the contrary is provided.

Plazo de preaviso:

Remarks

No statutory minimum notice period.

duración de servicio ≥ 6 meses:

  • Todos: 0 meses.

duración de servicio ≥ 9 meses:

  • Todos: 0 meses.

duración de servicio ≥ 2 años:

  • Todos: 0 meses.

duración de servicio ≥ 4 años:

  • Todos: 0 meses.

duración de servicio ≥ 5 años:

  • Todos: 0 meses.

duración de servicio ≥ 10 años:

  • Todos: 0 meses.

duración de servicio ≥ 20 años:

  • Todos: 0 meses.

Indemnización sustitutiva de preaviso: No

Notificación a la administración: No

Notificación a los representantes de los trabajadores: No

Aprobación de la administración publica o de organismos judiciales: No

Acuerdo de los representantes de los trabajadores: No

Definición de despido colectivo (número de empleados afectados): No specified number in the legislation.

Remarks

Art. 434 II, III, V: Grounds for collective termination:
- the evident and notorious inability to pay the operations/exploitation of the undertaking (II);
- the exhaustion of the substance being extracted by a mining undertaking (III);
- statutory declaration of insolvency proceedings or bankruptcy only if the competent authority or the creditors decide on the definitive closure of the undertaking or the definitive retrenchment of production (V).
Art. 439: When the adoption of new working procedures or new equipment/machinery brings as a consequence the reduction of the number workers.

Art. 435 (II). The employer shall obtain, previous to the termination of the ER, the Tribunal’s authorization according to the procedure (collective special procedure) in arts. 897 and following articles
Art. 435 (I). I and V of Art. 434, the Tribunal shall be notified, to approve or not the dismissal according to procedures established in articles 897 and following articles

Consultación previa con los sindicatos (representantes de los trabajadores): Si

Remarks

Yes, but only in the case of Art. 439 (adoption of new procedures or new equipment/machinery that brings as a consequence the reduction of the number workers) where it is expected an attempt of the parties (employer and worker representatives) to reach an agreement prior triggering any proceeding. If no agreement is negotiated then the employer shall obtain the authorization from the Tribunal as per the proceedings established in arts. 897, 897-A to 897-G of the FLA. In other cases, the defendant obtains the information via the corresponding legal procedure.

Notificación a la administración: Si

Remarks

*Notification to the Tribunal: Art. 435 FLA.

Notificación a los representantes de los trabajadores: Si

Remarks

For art. 434 subsections III and V (the exhaustion of the substance being extracted by a mining undertaking (III) and statutory declaration of insolvency proceedings or bankruptcy (V)): art. 872, 873-A (applicable provisions), 897-A to 897-G FLA (special collective proceedings);
For art. 434 subsection II (evident and notorious inability to pay the operations/exploitation of the undertaking): arts. 900-919 FLA on Special proceedings applicable to collective disputes of economic nature.
Note that the procedure is brought before the Tribunal, which is in charge of notifying the defendant (i.e. workers and representatives in the collective termination), which get an opportunity to respond to the claim and provide evidence.

Aprobación de la administración publica o de organismos judiciales: Si

Remarks

*Art. 435 FLA: approval by the Tribunal
*Proceedings before the Tribunal: In the case of art. 434 subsection II (evident and notorious inability to pay the operations/exploitation of the undertaking), previous to the termination, the employer shall obtain the authorization of the Tribunal as per the regulations established in the Special proceedings applicable to collective disputes of economic nature (arts. 900-919 FLA).

In the case of art. 434 subsection III (the exhaustion of the substance being extracted by a mining undertaking) the employer shall request the authorization of the Tribunal as per proceedings established in arts. 897, 897-A to 897-G.

In the case of art. 434 subsection V, the termination shall be notified to the Tribunal as per (Art. 435 (I)) to approve or reject the termination after following the proceedings established in arts. 897, 897-A to 897-G.

Acuerdo de los representantes de los trabajadores: No

Remarks

However, during the proceedings before the Tribunal, if the employer and the trade union reach an agreement, the Tribunal will approve it and will have the effects of a final judgment (art. 906 (IV) FLA).

Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): Si

Remarks

Art. 437 FLA: seniority-based priority to remain in the undertaking.

Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...): No

Reglas de prioridad para la re-contratación: Si

Remarks

Art. 438 following 154 FLA: In equal circumstances, the following workers will be hired with priority: Mexican workers over non-Mexican workers, workers who satisfactory served for a longer period of time, workers who do not have any other economic income and have family responsibilities, workers who have finished compulsory education, qualified personnel over non-qualified, workers with better skills and knowledge and workers members of trade unions.
In case of collective agreement with admission clause this –and the trade union by laws- will prevail over the present article in the case of preference to access employment vacancies or newly created posts.

Indemnización por despido:

Remarks

No severance pay.
The FLA does not make a conceptual difference between severance and redundancy payment. The term used is "indemnización " irrespective of the ground of the termination.

However, in the case of a justified dismissal, permanent workers are always entitled to the payment of the seniority award (Art. 162 FLA). The calculation should be proportional to the period of time that the worker rendered his/her services (12 days per year –or proportion of year- worked).
Note: If the worker earns daily more than two minimum wages the seniority award is capped.

duración de servicio ≥ 6 meses: 0 meses

duración de servicio ≥ 9 meses: 0 meses

duración de servicio ≥ 1 año: 0 meses

duración de servicio ≥ 4 años: 0 meses

duración de servicio ≥ 5 años: 0 meses

duración de servicio ≥ 10 años: 0 meses

duración de servicio ≥ 20 años: 0 meses

Indemnización por despido por razones económicas:

Remarks

Art. 436 FLA: 3 months' salary + seniority award (12 days per year of service).
Art. 439: When termination is due to new machinery or working procedures, when an agreement is not reached between the parties, the employer has to obtain the Tribunal’s authorization according to the special collective proceedings established in Art. 897 and related ones. Workers losing their jobs are entitled to a compensation:
4 months of wages + 20 days of wages per year of service or any amount agreed in work contracts –if it is higher- and the seniority award (Art. 162 FLA)

Note: The Supreme Court determined the basis for calculation of the seniority award: it cannot be below the minimum wage but cannot be either above two minimum wages. Therefore, it is capped (unlike other types of compensation established in the FLA).

In the redundancy payment table below, the seniority award is included in the calculation (otherwise it would be 3 months equally irrespective of the number of years worked.)

duración de servicio ≥ 6 meses: 3 meses

duración de servicio ≥ 9 meses: 3 meses

duración de servicio ≥ 1 año: 3.4 meses

duración de servicio ≥ 2 años: 3.8 meses

duración de servicio ≥ 4 años: 4.6 meses

duración de servicio ≥ 5 años: 5 meses

duración de servicio ≥ 10 años: 7 meses

duración de servicio ≥ 20 años: 11 meses

Compensación por despido injustificado - libre determinación de la Corte: No

Remarks

Art. 48 and 50 FLA (articles modified in November 2012)

Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo): Art. 50 FLA. Compensation for unfair dismissal consists of the following:
- if the employment relationship is for a specified period of less than one year, an amount equal to the total amount of remuneration payable for one-half of the entire period of employment; if the employment relationship lasted for more than one year, six months' wages for the first year of service plus 20 days' wages for each additional year of service;
- if the employment relationship is for an unspecified period the compensation consists of 20 days' wages for each year of service
- in addition to the compensation referred to in the preceding subsections, three months' wages plus the overdue salaries and interests, if applicable, in accordance with art. 48 of this law.

Remarks

Art. 50 FLA.

Posibilidad de readmisión: Si

Remarks

Art. 48 FLA: The worker may request to the Conciliation Authority or the Tribunal, if no conciliatory arrangement is reached, his/her reinstatement in the post occupied or compensation in the form of three months wages, at his or her choice.

If, in the corresponding trial, the employer does not prove the reason for dismissal, the worker is entitled to (in addition to reinstatement or compensation of three months wages) receive lost wages from the date of the unfair dismissal up to 12 months. If after 12 months the trial proceedings have not yet been concluded or the judgment has not been complied with, the worker shall also receive interests (2% monthly of 15 months wages).

Under Art. 49 of the FLA, the employer may, in the following cases, be released from the obligation to reinstate the worker by paying the compensation referred to in Art. 50:

-in the case of workers who have been employed for less than one year in the undertaking;
-if sufficient evidence is furnished to the satisfaction of the Tribunal that the worker to perform his/her work needs to be in direct and permanent contact with the employer and the Tribunal determines, taking into consideration all the circumstances of the case, that continuation of the work is impossible;
-in the case of employees in a position of trust;
-in domestic service; and
-in the case of casual workers.

Conciliación previa obligatoria: Si

Remarks

Art. 123 (A)(XX) of the Mexican Constitution.
Employment disputes are heard by Labour Courts [u2026] However, before resorting to labour courts, workers and employers must resort to the appropriate conciliatory institution.

Art. 684-B FLA: Before requesting the Tribunals intervention, workers and employers shall request from the competent Conciliatory Centre the start of conciliation proceedings, except in some specific cases determined by the FLA (e.g. those established in article 685 Ter)

Preliminary mandatory conciliation proceedings regulation is in Arts. 684-A to 684-E.

Corte o Tribunal competente: tribunal del trabajo

Remarks

Art. 123 (A)( XX)of the Mexican Constitution, 604 FLA.

In Mexico, employment disputes are heard by labour tribunals/courts (Judiciary at the local (state) or federal level. They can be heard by the Federal or Local courts according to distribution of competencies –by industry/services, type of enterprises, and subjects (Art. 123 (A) (XXXI), Art.527-529 FLA)

Article 604 FLA: The Labour courts of the federal or state judiciary branch, in the scope of their competencies, will hear and resolve labour related to employment relationships or facts related to them, arising between workers and employers, between several workers or between several employers. This is a tripartite body that exercises jurisdictional functions. See Art. 605 for composition and structural organization.

Note: The Constitutional reform to replace the Conciliation and Arbitration Boards with labour courts was adopted in February 2017, and the FLA reform in May 2019. Courts will begin their functions within a maximum period of 4 years from May 1, 2019. During this transition period, Conciliation and Arbitration Boards will continue to resolve disputes.

Arbitraje: No