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JESSE
Ultra Nomad
Posts: 3370
Registered: 11-5-2002
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| Quote: | Originally posted by MitchMan
We've already established that if you fire an employee and they make a claim, you have to "pay him off" with benefits and maybe a fine. But do you
have to pay benefits to someone who has voluntarily quit?
Also, if you don't actually fire him, but he voluntarily stops coming to work AND files a claim against you for firing him, DO YOU STILL HAVE TO PAY
BENEFITS and a fine ("pay him off") in spite of your representing that you have not and are not firing him and that his job is still open to him and
in fact allow him to come to work to continue to work. |
You do have to pay benefits to someone who quits, but not as high as if you fired him.
If he stops coming to work, and files a claim, kiss anywhere from 5,000 to 10,000 pesos goodbye. Conciliacion will summon you and him to a meeting
(wich in reality is a reunion for you to offer him money, and him to accept). It doesnīt matter who is right or wrong, because non of the parties want
to go to court and potentially end up losing much more.
If an employee stops going to work, inmediately go and file a letter informing the secretaria del trabajo that he stopped going to work. This will
protect you from the employee showing up (even months) in the future claiming you fired him, at wich point, you will have to pay him for all of those
months.
Finally, you can offer an employee his job back, but i think at this point its not good for anyone involved to keep working togheter. If your at
conciliacion, it means pretty much the relationship is over, and at least one of the parties wants out. Why keep an employee that doesn't want to be
there?
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DENNIS
Platinum Nomad
Posts: 29510
Registered: 9-2-2006
Location: Punta Banda
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| Quote: | Originally posted by JESSE
With 3 you have something to work with, but 4 to 5 is best. |
The agencys and which write and enforce these laws are more of a detriment to Mexico than the cartels. I find it unbelievable that law would allow
anybody to interfere in the efficienct operation of a business, affecting the income of the owner, demoralizing fellow employees and possibly ruining
the reputation of the business itself.
How could the PAN party continue to allow this abuse to employers?
I truly do not understand and never will.
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flyfishinPam
Super Nomad
Posts: 1727
Registered: 8-20-2003
Location: Loreto, BCS
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Mood: gone fishin'
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| Quote: | Originally posted by JESSE
| Quote: | Originally posted by DENNIS
One thing I've heard hasen't been brought up here. I didn't see it anyway.
I'm refering to restaurant business because that specifically is what I'll talk about.
If a restaurant owner hires an employee, until thirty days pass by, the employee is not considered permanant and covered by the overly protective
laws. They'll hire a waiter and lay him off after less than thirty days or get a written, signed contract that the job has a time limit.
I recently watched a cook almost cause a restaurant to close their doors because he had all of the protections and would come and go as he pleased.
He'd walk out in the middle of the dinner hour and if he offered any excuse, the restaurant had no recourse. Couldn't fire him.
Is anybody aware of this? Does it apply to other fields?
Dave....Are you out there? You would know. |
A permanent contract or contrato, basically means if you want to fire the guy, you have to pay him severance pay and vacations and other stuff. If you
want to pay, you can fire him on the spot. There isnt a law that forces you to keep an employee that you donīt want, unless your doing it because he
is gay or something like that, then we would get into discrimination but thats something entirely different. Having said that, when you make your
employee sign a contract, the contract clearly has to point to his responsabilities, his working hours, his superiors, and the things he is expected
to do in case of an emergency. For example, a waiters contract might include a clause that gives you the right to get him to clean the restrooms and
wash dishes.
Now, if your employee is not performing well, or he is late, or he leaves work without permission. You start a process of PUTTING IT ON PAPER. That
means, if the guy is late, you writte a letter adressed to him, where you warn him that he has been showing up late, and that he needs to be on time
according to his contract. This letter is signed by you, two other witnesses, and him. Then you go to Secretaria del Trabajo and simply ask to have
the letter filed. In time, if your employee keeps screwing up, more and more letters will pile up, until you have the legal right to get rid of him
based on him not fullfilling his part of the contract. or basically, he is not good for the job.
In Mexico, if you want to fire someone on the spot out of nowhere, it will cost you. But if the employee is bad, you can fire him legally for not
doing its job, but it takes a little time and patience. |
Excellent advice Jesse, worth paying for!
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JESSE
Ultra Nomad
Posts: 3370
Registered: 11-5-2002
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| Quote: | Originally posted by monoloco
| Quote: | Originally posted by JESSE
| Quote: | Originally posted by jls
The men that work for us always do it by the job and not by salary or day rate. They call themselves contractors....so far all is good. The only
problem with a by the job is sometimes it takes a very long time for the job to be done and we have to pony up a fair start up fee keeping our fingers
crossed. |
Just think about this.
If a worker dies in your property, are you 100% sure the contractor will take all the responsability? because if he doesn't, its your responsability,
your life, your money. |
You are apparently responsible for your workers on the way to and from the job. I
know a contractor who's workers were rear ended by a water truck on the way home from work seriously injuring an employee, they went after the
contractor for compensation not the driver of the water truck. |
You are responsible if you provide transportation.
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flyfishinPam
Super Nomad
Posts: 1727
Registered: 8-20-2003
Location: Loreto, BCS
Member Is Offline
Mood: gone fishin'
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| Quote: | Originally posted by JESSE
| Quote: | Originally posted by MitchMan
We've already established that if you fire an employee and they make a claim, you have to "pay him off" with benefits and maybe a fine. But do you
have to pay benefits to someone who has voluntarily quit?
Also, if you don't actually fire him, but he voluntarily stops coming to work AND files a claim against you for firing him, DO YOU STILL HAVE TO PAY
BENEFITS and a fine ("pay him off") in spite of your representing that you have not and are not firing him and that his job is still open to him and
in fact allow him to come to work to continue to work. |
You do have to pay benefits to someone who quits, but not as high as if you fired him.
If he stops coming to work, and files a claim, kiss anywhere from 5,000 to 10,000 pesos goodbye. Conciliacion will summon you and him to a meeting
(wich in reality is a reunion for you to offer him money, and him to accept). It doesnīt matter who is right or wrong, because non of the parties want
to go to court and potentially end up losing much more.
If an employee stops going to work, inmediately go and file a letter informing the secretaria del trabajo that he stopped going to work. This will
protect you from the employee showing up (even months) in the future claiming you fired him, at wich point, you will have to pay him for all of those
months.
Finally, you can offer an employee his job back, but i think at this point its not good for anyone involved to keep working togheter. If your at
conciliacion, it means pretty much the relationship is over, and at least one of the parties wants out. Why keep an employee that doesn't want to be
there? |
again, excellent advice here too, also worth paying for.
I learned the hard way but I LEARNED. Keep in mind this labor issue is very difficult to swallow to an American (and likely a Canadian) our cultures
and our ways are so different and this is one example. Learn the history and you will come to understand why this came about. This is good when
starting to compare and judge how things run here.
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flyfishinPam
Super Nomad
Posts: 1727
Registered: 8-20-2003
Location: Loreto, BCS
Member Is Offline
Mood: gone fishin'
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| Quote: | Originally posted by JESSE
You are responsible if you provide transportation. |
I think that's only true for more than the specified distance as per the law, I think that is 3Km but I may be off on that. if this not be the case
maybe we can transport our workers in ambulances and on guerneys. 
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monoloco
Elite Nomad
Posts: 6667
Registered: 7-13-2009
Location: Pescadero BCS
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| Quote: | Originally posted by flyfishinPam
| Quote: | Originally posted by JESSE
You are responsible if you provide transportation. |
I think that's only true for more than the specified distance as per the law, I think that is 3Km but I may be off on that. if this not be the case
maybe we can transport our workers in ambulances and on guerneys.
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My friends employees were riding with one of the other employees not provided transport.
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flyfishinPam
Super Nomad
Posts: 1727
Registered: 8-20-2003
Location: Loreto, BCS
Member Is Offline
Mood: gone fishin'
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| Quote: | Originally posted by DENNIS
| Quote: | Originally posted by JESSE
With 3 you have something to work with, but 4 to 5 is best. |
The agencys and which write and enforce these laws are more of a detriment to Mexico than the cartels. I find it unbelievable that law would allow
anybody to interfere in the efficienct operation of a business, affecting the income of the owner, demoralizing fellow employees and possibly ruining
the reputation of the business itself.
How could the PAN party continue to allow this abuse to employers?
I truly do not understand and never will. |
yeah I can see where you'd have that opinion but read the history of Mexico and you may come to understand how this (and other things) has come about.
you need to see the big picture before you judge. I am not saying I disagree with you but when one lives here one needs to deal with the rules that
pertain to us so that we can survive and hopefully move forward. It helps to have an understanding and an open mind in order to work through these
sets of rules (written and unwritten) and it also helps to keep one's sense of humour as well.
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Dave
Elite Nomad
Posts: 6005
Registered: 11-5-2002
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Protect your assets
| Quote: | Originally posted by JESSE
If he stops coming to work, and files a claim, kiss anywhere from 5,000 to 10,000 pesos goodbye. Conciliacion will summon you and him to a meeting
(wich in reality is a reunion for you to offer him money, and him to accept). It doesnīt matter who is right or wrong, because non of the parties want
to go to court and potentially end up losing much more.
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All my employees are hired by a shell corporation set up specifically for that purpose. The director general is my attorney. I've had one employee
file a claim. It went nowhere.
My employees think they're working for me but in reality they're working for air. 
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flyfishinPam
Super Nomad
Posts: 1727
Registered: 8-20-2003
Location: Loreto, BCS
Member Is Offline
Mood: gone fishin'
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| Quote: | Originally posted by monoloco
| Quote: | Originally posted by flyfishinPam
| Quote: | Originally posted by JESSE
You are responsible if you provide transportation. |
I think that's only true for more than the specified distance as per the law, I think that is 3Km but I may be off on that. if this not be the case
maybe we can transport our workers in ambulances and on guerneys.
|
My friends employees were riding with one of the other employees not provided transport.
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maybe I didnīt make myself clear:
if your employee lives more than the specified distance (which I believe is 3KM) then you as an employer must provide transportation.
if during that employee sponsored transportation event, the employee gets into an accident their welfare is the ultimate responsibility of the
employer.
if the employee lives less than the specified distance away from the job they must provide for their own transportation.
3Km is a reasonable walking distance so I assume that is why it was chosen. but if in the event of an accident while your employee was traveling to
your job on their own accord weather in a vehicle, a bicycle, a moto, or on foot the employer is not necessarily responsible. just to be clear here
and not scare the crap outta folks here this stuff is scary enough as it is.
I stated necessarily because I would believe there could be cases where an employee were traveling to a work site and the employer could be
responsible, say if yelling at them over a cell phone while in transit or putting undue pressure on them timewise, etc.
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JESSE
Ultra Nomad
Posts: 3370
Registered: 11-5-2002
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| Quote: | Originally posted by Dave
| Quote: | Originally posted by JESSE
If he stops coming to work, and files a claim, kiss anywhere from 5,000 to 10,000 pesos goodbye. Conciliacion will summon you and him to a meeting
(wich in reality is a reunion for you to offer him money, and him to accept). It doesnīt matter who is right or wrong, because non of the parties want
to go to court and potentially end up losing much more.
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All my employees are hired by a shell corporation set up specifically for that purpose. The director general is my attorney. I've had one employee
file a claim. It went nowhere.
My employees think they're working for me but in reality they're working for air. |
Beware Dave, more and more lawyers are getting around this "shield", and there is pending legislation to close this "loophole" in the near future. I
used to do this same thing for years, but so many cases like this have failed, that it is no longer a safe protection.
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flyfishinPam
Super Nomad
Posts: 1727
Registered: 8-20-2003
Location: Loreto, BCS
Member Is Offline
Mood: gone fishin'
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| Quote: | Originally posted by JESSE
| Quote: | Originally posted by Dave
| Quote: | Originally posted by JESSE
If he stops coming to work, and files a claim, kiss anywhere from 5,000 to 10,000 pesos goodbye. Conciliacion will summon you and him to a meeting
(wich in reality is a reunion for you to offer him money, and him to accept). It doesnīt matter who is right or wrong, because non of the parties want
to go to court and potentially end up losing much more.
|
All my employees are hired by a shell corporation set up specifically for that purpose. The director general is my attorney. I've had one employee
file a claim. It went nowhere.
My employees think they're working for me but in reality they're working for air. |
Beware Dave, more and more lawyers are getting around this "shield", and there is pending legislation to close this "loophole" in the near future. I
used to do this same thing for years, but so many cases like this have failed, that it is no longer a safe protection. |
also it probably depends on where this is done as what would fly up in Rosarito may not fly in La Paz and definately won't fly in Loreto, at least
with the budget I have to work with some towns have no law or a law of their
own.
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JESSE
Ultra Nomad
Posts: 3370
Registered: 11-5-2002
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It used to work back when it was new and other lawyers didnīt know what to do. But now, i think most good lawyers know that in court, when an employee
gets asked. Where do you work? and who gives you orders? then the court will establish that the fuente de trabajo is you, not the corporation that
only exists on paper.
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Dave
Elite Nomad
Posts: 6005
Registered: 11-5-2002
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| Quote: | Originally posted by flyfishinPam
also it probably depends on where this is done as what would fly up in Rosarito may not fly in La Paz and definately won't fly in Loreto, at least
with the budget I have to work with some towns have no law or a law of their
own. |
Corporation law is exactly the same in all parts of Mexico. If an employee files claim or wins suit against a corporation with zero assets
he/she can go suck eggs.
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flyfishinPam
Super Nomad
Posts: 1727
Registered: 8-20-2003
Location: Loreto, BCS
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Mood: gone fishin'
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| Quote: | Originally posted by Dave
| Quote: | Originally posted by flyfishinPam
also it probably depends on where this is done as what would fly up in Rosarito may not fly in La Paz and definately won't fly in Loreto, at least
with the budget I have to work with some towns have no law or a law of their
own. |
Corporation law is exactly the same in all parts of Mexico. If an employee files claim or wins suit against a corporation with zero assets
he/she can go suck eggs. |
ummhmmm whatever you say but the reality of the situation is that the arbetraje in your area is going to dictate the outcome and they do not all abide
by the written laws like it or not. there are many cases in the town I live in that can prove this. also the employees lawyer can go after the zero
asset corp AND the employer as a person can be named in the suit. happened to me and it was a bad setup but the result was that I was ultimately
responsible.
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JESSE
Ultra Nomad
Posts: 3370
Registered: 11-5-2002
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| Quote: | Originally posted by Dave
| Quote: | Originally posted by flyfishinPam
also it probably depends on where this is done as what would fly up in Rosarito may not fly in La Paz and definately won't fly in Loreto, at least
with the budget I have to work with some towns have no law or a law of their
own. |
Corporation law is exactly the same in all parts of Mexico. If an employee files claim or wins suit against a corporation with zero assets
he/she can go suck eggs. |
Not if the judge rules the fuente de trabajo is you and not the outsourcing corporation during the trial.
It happens quite often these days.
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Dave
Elite Nomad
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I'm prepared for that, too
| Quote: | Originally posted by flyfishinPam
also the employees lawyer can go after the zero asset corp AND the employer as a person can be named in the suit.
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You can't squeeze blood out of a stone. Besides, I'm not an employer and my pitbull lawyer can prove it. 
Again, it really doesn't matter what judgment is rendered...If you can't collect.
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DianaT
Select Nomad
Posts: 10020
Registered: 12-17-2004
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Boy, this thread has turned into a real education, especially from those of you who have a business. It has been VERY interesting reading.
With all the potentials, we still feel we are often in the gray area at times, and like BajaGringo, we knock on wood A LOT.
One problem in our area is that there are often not a lot of choices and the idea of everything in writing probably will not happen for a very long
time.
Thanks for the education.
Diane
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JESSE
Ultra Nomad
Posts: 3370
Registered: 11-5-2002
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| Quote: | Originally posted by Dave
| Quote: | Originally posted by flyfishinPam
also the employees lawyer can go after the zero asset corp AND the employer as a person can be named in the suit.
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You can't squeeze blood out of a stone. Besides, I'm not an employer and my pitbull lawyer can prove it.
Again, it really doesn't matter what judgment is rendered...If you can't collect. |
They can collect the equipment in your business.
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Dave
Elite Nomad
Posts: 6005
Registered: 11-5-2002
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No... they can't
| Quote: | Originally posted by JESSE
They can collect the equipment in your business. |
I don't own it. Owned by a separate corporation that leases to me.
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