Relevant Aspects of the Outsourcing Reform Project in Mexico
The Chamber of Deputies in Mexico established the integral outsourcing reform project with the objective to modify and harmonize the Federal Labor Law, the Social Security Law, Infonavit Law, the Fiscal Code, the ISR Law and the IVA Law related to subcontracting personnel.
The following are among the most relevant items of the reform project:
- The prohibition of personnel subcontracting, which consists of a natural person or legal entity that provides or makes employees available for the benefit of others.
- The provision of specialized services or the execution of specialized jobs is allowed, if they do not constitute the company’s corporate purpose or the beneficiary's economic activities, as long as the contractor has an authorization issued by the Secretary of Labor and Social Welfare for that matter.
- An intermediary is defined to intervene in the contracting of personnel to provide their services to an employer. This service can include recruitment, selection, training and preparation activities, among others. The intermediary will under no circumstances be considered an employer; this position and capacity is assigned to those who gain benefit of these services.
In addition, this reform establishes formalities and requisites that employers must fulfill to contract the provision of specialized services or the execution of specialized jobs:
- the execution of a contract that establishes the purposes of the services to be provided or the jobs to be executed
- the number of employees that will participate in the contracting process
- authorization on behalf of the Secretary of Labor and Social Welfare
Before executing an agreement, companies must validate their specialized capacity in the provision of services to be executed, as well as to be updated in the compliance of their labor, fiscal and social security obligations.
Finally, they will establish penalties to those who use or gain benefits through personnel subcontracting, contradicting the formerly stated provisions. Likewise, specialized service companies that are detected operating without the corresponding authorization also will be penalized.
Among the most severe penalties are the following:
- fiscal fraud crimes
- no tax deductions
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.