Until now, labor exploitation was only characterized by dangerous and unprotected conditions, workloads disproportionate to remuneration and compensation below the minimum wage.
Officially in Mexico, working hours that exceed the legal limit are already considered a crime of labor exploitation that can be punished with up to 12 years in prison and a fine that can reach 70,000 days; that is, the daily perception of the aggressor at the time of sentencing, multiplied by the number of days.
After its publication in the Official Gazette of the Federation (DOF), this month the reform to the General Law to Prevent, Punish and Eradicate Crimes in the Matter of Human Trafficking and for the Protection and Assistance to Victims of Trafficking came into force. these crimes. This modification included working hours exceeding the legal maximum established in the Federal Labor Law (LFT) as a crime.
Labor exploitation was already classified as a crime of human trafficking, but only cases were considered in which dangerous or unhealthy conditions were present without the protection provided by the regulations, a disproportionate workload to the salary received or remuneration lower than the minimum salary.
These cases include cases in which working hours are longer than the limits established in the LFT. In general, the crime will be punished with a penalty of between three and 10 years in prison, plus a fine ranging from 5,000 to 15,000 days.
However, when this type of labor exploitation affects people from indigenous or Afro-Mexican peoples and communities, the penalty could be between four and 12 years in prison, in addition to a penalty that ranges between 7,000 and 70,000 days of fine.
An extended day "will be applicable and, therefore, will be updated as a form of labor exploitation, as long as we are in the presence of an act that violates labor provisions," indicates the reform approved by the Congress of the Union.
This means that labor exploitation by this criterion will be configured when 48 hours per week and overtime hours are exceeded, which cannot exceed three hours per day and nine hours per week, in addition to the compensation for overtime equivalent to “one hundred percent more of the salary that corresponds to the hours of the day”, in accordance with the provisions of the Federal Labor Law.
The opinion approved by the Congress of the Union clarifies that this crime of labor exploitation "must be interpreted in accordance with current labor legislation, which allows a person to work overtime and receive remuneration in exchange."
The working day and the lack of payment of overtime are the second most recurrent breach in inspections of general working conditions, according to data from the Ministry of Labor and Social Welfare (STPS).
From the perspective of Ernesto de la Puente, senior associate at the firm Santamarina y Steta, the reform “disincentivizes employers who were using excessive hours. Whether or not the reduction in working hours happens, a limit on working time is achieved.”
In that sense, the specialist believes that the labor market does have an important challenge in the face of the reform. “It is one of the most recurrent violations.” But, he considers, its application must be carried out responsibly, since there are special days that, due to the nature of the work, do exceed what is established by the Law. “For example, those who work on maritime platforms who cannot spend the night at home, and count as a day.”
For Carlos Ferran Martínez, managing partner of the Ferran Martínez Abogados firm, the reform aims to avoid what the Supreme Court of Justice of the Nation (SCJN) has described as “inhumane days.”
“The reasonable interpretation is if the overtime limit set forth in the Federal Labor Law is exceeded, but not the simple fact of working overtime,” says the specialist. In this sense, he believes, workers must take into account that overtime will continue to operate without the crime being committed. “What cannot happen is that now it is understood that overtime is a crime.”
Small businesses in the spotlight
Although the legal modification is aimed at sectors where long hours are used for exploitation purposes, the change is an invitation to “not violate the overtime provisions,” says Carlos Ferran Martínez.
In the case of large companies, says the specialist, the scope does not go beyond checking that the legal framework of working time is being complied with, the reform can have a greater impact on small businesses and individuals with employees; for example, with domestic workers.
For his part, Ernesto de la Puente considers that the modification is a reminder - in addition to the discussion of the reduction of working hours - for the employers' sector to review working time. “This only reinforces a trend that has been seen coming for months.”
An important aspect, the specialist emphasizes, is that trusted workers are not exempt from legal limits, so the review of working time must be done at all levels of companies.
