Business Law Articles
Written By: Pablo Sáenz
Cacheaux Cavazos & Newton
A popular topic nowadays is that of minors who have to work in order to help support their families and, as a consequence, have to miss school and academic preparation. Mexico’s labor authorities have taken action regarding this issue in order to protect the rights of minors, so that they may have the opportunity to have access to basic education and in an attempt to eradicate child labor. Pursuant to the foregoing, companies that have a need to hire minors should be aware of the legal requirements and limitations that apply with respect to hiring minors.
Article 123, Subsection A of the Political Constitution of the United Mexican States establishes the following: (i) utilization of the labor of minors under the age of 14 years is prohibited; (ii) those older than 14 years but under the age of 16 years shall have a maximum work shift of 6 hours per day, the same which shall be divided in periods of a maximum of three hours each, with at least one hour of break between such periods; (iii) minors under the age of 16 years are prohibited from doing dangerous work or work that is hazardous to their health, and from working industrial night shifts and performing all other work after 10:00 p.m.; and (iv) minors under 16 years of age must not work overtime.
The Federal Labor Law further establishes that minors that are over the age of 14 years and under the age of 16 years, and work, are subject to the supervision and protection of the labor authorities and must obtain a medical certificate that certifies the ability to work. Further, they must undergo medical exams that are periodically requested by the corresponding labor authorities. Minors may not provide services without compliance with these requirements. Furthermore, in the event that a health condition is identified, if the appropriate authority so decides, the minor may not work. Additionally, the Federal Labor Law establishes that minors shall not work: (i) at non-industrial establishments after 10 p.m.; (ii) in the sale of alcoholic beverages for immediate consumption, at bars, taverns or certain establishments involving adult activities; (iii) at jobs that may affect morality or good customs; (iv) at dangerous jobs or jobs that are hazardous to their health (which are those jobs that involve dangerous physical, chemical or biological conditions, or due to the nature of the composition of the raw material utilized, are capable of affecting the life, development and physical and mental health of the minors); and (v) minors under the age of 16 are not allowed to work overtime, on Sundays or on the obligatory rest days.
The Federal Labor Law indicates that minors under the age of 16 years must have an annual paid vacation of at least 18 workdays. Likewise, the aforementioned law establishes that employers who hire employees under the age of 16 years shall be required to: a) obtain medical certificates that certify that the minors are able to perform the work; b) maintain a special inspection log, indicating the date of birth, type of work performed, work schedule, wages and other work conditions; c) distribute the work in order for them to have the time necessary to undertake their academic programs; d) provide them with training; and e) provide any reports required by the labor authorities.
The Federal Labor Law establishes a prohibition against the use of labor by minors under the age of 14 years and those older than 14 years, but under the age of 16 years, if they have not completed their mandatory education, except in circumstances approved by the corresponding authority, which in its judgment determines that there is compatibility between studies and work.
Finally, it is important to note that when labor authorities detect that the minor is not receiving the wages received by other employees who provide the same services, the employer must reimburse him/her the difference. Those over the age of 16 years can freely render their services, pursuant to the limitations established by the Federal Labor Law, but those over the age of 14 years and under 16 years require authorization from their parents or guardians, and, in the event the minor does not have parents or a guardian, then the union to which he/she belongs, the Board of Conciliation and Arbitration, the Labor Inspector or the government may grant such authorization. Employers who violate these rules will be sanctioned with a fine of 50 to 5,000 times the general minimum wage and employers who hire employees under the age of 14 years will be subject to imprisonment from 1 to 4 years and to a fine of 250 to 5,000 times the general minimum wage.
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