Texas Border Business
By Jorge F. Millan
I was motivated to write this article to express the facts regarding the labor implications that ANY company operating in Mexico faces before their non-Mexican employees.
When I practiced labor law on the Mexican side of the Texas border, I came across the belief by non-Mexican maquiladora managers that the Mexican Federal Labor Law did not protect them.
They were (and some still are) under the impression that because of their nationality and because they live on the U.S. they could not exercise the same labor rights available to Mexican nationals.
I have heard some Mexican labor lawyers from Tijuana to Matamoros of the U.S.-Mexico border, reassure their U.S. clients that non-Mexican managers, either do not have labor rights in Mexico or even if they do, they would be committing fraud should they try to exercise them. THAT IS VERY FAR FROM THE TRUTH.
Other Mexican labor lawyers advise their U.S. clients to set up useless service contracts between the U.S. parent company and its Mexican subsidiary to provide the Mexican company with certain non-Mexican personnel who would be rendering their services to the Mexican company.
There are also some who go as far as to suggest that the parent company executes a U.S. labor contract with the employee and include a provision establishing that in case the non-Mexican employee files a labor lawsuit in Mexico against either the Mexican subsidiary or the U.S. parent company or both, they would be incurring in a breach of the U.S. labor contract. Such a contract, some say, must further establish that the parties submit their controversies to U.S. jurisdictions.
Before I explain what the Federal Labor Law and its interpretations by the Mexican Supreme Court say on this matter, it is necessary to make very clear that said law and the judicial authorities in charge of labor matters (called Federal or Local Labor Conciliation and Arbitration Boards) are very protective of workers and employees, and their resolutions are mostly in their favor.
The Mexican Constitution and the Federal Labor Law clearly establish that everyone who works in Mexico on behalf of an individual or an entity, in a subordinated relationship, are totally protected and enjoy all of the benefits established in the law. This protection is granted regardless of nationality or even whether their immigration status in Mexico is legal or not.
Labor rights in Mexico are considered to be of “public interest”, that is, they cannot be waived and whoever infringes upon them must pay a severance sum of money and/or reinstate the employee in his (hers) job if terminated without cause.
The Mexican Supreme Court has issued mandatory Resolutions that establish: “…non-Mexican individuals enjoy the same rights as Mexican nationals before judicial entities including the termination of a labor relationship which will be resolved by the Conciliation and Arbitration Labor Boards just as if they were Mexicans.”
Jorge F. Millan is a fully bilingual (Spanish English / English Spanish) and bicultural attorney at law, licensed to practice in México, with vast domestic and international experience as in-house and outside counsel for various corporations and individuals. You can reach him at [email protected]