On April 23, 2021, the Decree amending, adding and repealing several provisions of the Federal Labor Law, the Social Security Law, the Law of the National Workers' Housing Fund Institute, the Federal Tax Code, the Income Tax Law and the Value Added Tax Law, the Federal Law of Employees in the Service of the State, Regulatory of Section b) of Article 123 of the Constitution, the Regulatory Law of Section XIII bis of Section B, of Article 123 of the Constitution of the United Mexican States, in matters of labor outsourcing, was published in the Official Gazette of the Federation.
The legislative amendments provided in said Decree entered into force on the day following its publication, except for the amendments to the tax provisions,1 which will enter into force on August 1, 2021, and the amendments to the Laws that regulate the labor relations of workers in service of the State and of the Mexican Central Bank and banking system,2 which will enter into force in fiscal year 2022.
Forbidden outsourcing and specialized services
With this Decree, the outsourcing of personnel (understood as the figure under which a person provides or makes available its own workers for the benefit of another) is prohibited. However, the outsourcing of specialized services or for the execution of specialized works that are not part of the corporate purpose or predominant economic activity of the beneficiary of the services is permitted, provided that the services are rendered by a contractor listed in the registry maintained by the Ministry of Labor and Social Welfare ("STPS").
PTU
The procedure for determining the amount of employee profit sharing ("PTU") is also modified to establish a maximum of the amount that is more favorable to the employee between three months of the employee's salary and the average of the PTU received in the last three years.
Transition periods
A transition period of 30 days is given for the STPS to issue general rules regulating the registration of specialized outsourcing service providers, and a period of 90 days from the issuance of such rules is given for the persons providing such services to obtain their registration. A transition period of 90 days from the entry into force of the Decree is also given for companies that provide outsourcing services to transfer their personnel to the companies benefiting from the services without having to transfer their assets, provided that all labor rights of the transferred workers are recognized. Once said term has passed, the employer substitution will not be considered to be effective if the assets of the company are not transferred to the substitute employer.
Infractions
Violations of the provisions of the new personnel outsourcing regime are punishable by fines and the loss of tax rights, such as the right to deduct the consideration paid or to credit the value added tax related to such consideration.
Joint liability
It is established that the recipient of either specialized services or the execution of specialized work will be jointly and severally liable with the employer providing the services in the event that the latter fails to comply with labor, tax or social security obligations.
Obligations and requirements for specialized services
In addition to the specialized nature of the services that may be outsourced, the companies that provide such services are obligated to: 1) register in the STPS registry and keep such registration in force, which will be valid for three years; 2) file quarterly reports with the IMSS and INFONAVIT with information of contracts entered into; and 3) provide the recipient of the services, with respect to the workers with whom it has provided the service or executed the corresponding work, a copy of (i) tax receipts of payment of salaries, (ii) payment receipts issued by a banking institution of withholding of taxes from such employees, (iii) payment of social security employer contributions and payment of INFONAVIT contributions, and (iv) value added tax returns and acknowledgement of receipt of the payment corresponding to the period in which the contractor made the payment of the consideration and the value added tax that was transferred to the contractor.
Tax considerations
It is also established that there will be no tax deductions or credits given to: 1) payments or considerations for outsourcing personnel to perform activities related to the corporate purpose and the main economic activity of the contractor; and 2) the services in which personnel is provided or placed at the disposal of the contractor when (i) the workers originally provided by the contractor have been employees of the recipient of the services and have been transferred to the contractor, by means of any legal figure, and (ii) the employees provided cover the principal activities of the contractor, except in the case of payments or considerations for the subcontracting of specialized services or execution of specialized works, which are not part of the corporate purpose or the predominant economic activity of the beneficiary of the services, and provided that the obligations mentioned in the preceding paragraph are complied with.
Specialized services between members of the same group
Finally, it is also established that complementary or shared services or works rendered between companies of the same corporate group will also be considered as specialized, but it is conditioned that such services are not part of the corporate purpose or of the predominant economic activity of the receiving company, which makes this provision unclear.
Given the importance of outsourcing services in Mexico, this reform will impact a large number of companies.
We highly recommend a detailed review of the scope and possible impact of this reform, especially for those companies that have personnel outsourcing schemes, whether intra-group or with third parties, as well as corporate groups that, with or without having formal outsourcing schemes, have situations in which employees of one company of the group provide services to another or other companies of the same group.
It is very important to evaluate the need to take action in the face of this reform within the 90-day transition period. Such actions may consist of amendments to bylaws to define the corporate purpose of the companies, mergers between companies that provide personnel outsourcing services with companies receiving such services or employer substitution of contractors to the company receiving the services, among other actions.
Click here to download 'Labor outsourcing reform' PDF in Spanish.
1 Código Fiscal de la Federación, Ley del Impuesto sobre la Renta y Ley del Impuesto al Valor Agregado,
2 Ley Federal de los Trabajadores al Servicio del Estado, Reglamentaria del Apartado b) del Artículo 123 Constitucional y Ley Reglamentaria de la Fracción XIII bis del Apartado B, del Artículo 123 de la Constitución Política de los Estados Unidos Mexicanos.
White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.
This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
© 2021 White & Case LLP
