By Angel Marin Diaz
Recently or as we might say “cyclically” I have been receiving many questions about one of the most confusing areas of the law… Labor Law, and the rights of the employee and the responsibilities of the employer.
My goal in this week’s column is to identify the parties and clarify the requirements of each in a clear and succinct manner.
The source of employment:
The «employment» defined by the Mexican legal dictionary is: the «action and effect of employment or destination, occupation, trade or profession». Therefore, the source of employment is understood to be the place where the worker carries out his activities or the place that provides a job.
We have two types of employment in Mexico, one being formal, and the other being informal.
A) The “formal agreement” has a recognized employment relationship and has access to employment law such as Social Security, Service Payment, Christmas bonus, vacation, vacation premiums, seniority, etc.,
B) “Informal employment” is where there is no recognition of an employment relationship and therefore no benefits or labor rights that are established for a worker.
Some examples of an informal worker would be a plumber, painter, mechanic or as a prime example a taxi or Uber driver, i.e., self-employed, or subcontractors.
The Employer:
For legal purposes, the «employer», is a figure that is defined by our Federal Labor Law as follows:
– An employer is the natural or legal person who uses the services of one or more workers.
If the worker, in accordance with what is agreed or custom, uses the services of other workers, the employer of that worker will also be his/hers.
According to what is narrated in this article, the workers who depend on the contracted worker, at any moment, can be considered to be employees of the «Employer».
Social Security:
Among the rights that the worker has, we find that of Social Security, which is an institution that has its origins in the great social movements of the 19th, 20th century and in human solidarity, which manifests itself in the reaction of helping people or groups in need.
The International Labor Organization defines «Social Security» as:
«The protection that society provides to its members, through a series of public measures, against economic and social deprivations that, if not, would cause the disappearance or a sharp reduction in income due to illness, maternity, accidents at work, occupational disease, unemployment, disability, old age and death; and also protection in the form of medical assistance and aid to families with sons and daughters. «
Who has the right to social security?
The Universal Declaration of Human Rights, indicates that everyone, as a member of society, has the right to social security. This principle is adopted by our Constitution which regulates the labor relations between the private sector and all the rights that emanate from it.
The services provided by this institution are not limited to mere medical care, but include the following insurances:
– Occupational risks (accident or illness at work)
– Illness and maternity (medical care and disability payment)
– Disability (general illness that prevents work)
– Life, (death)
– Retirement, unemployment in old age and old age (pensions by age and years of contributions)
– Nursery schools and social benefits
Is it an obligation of the employer to enroll the worker in the IMSS?
Yes, the Social Security Law imposes that obligation on us, in relation to the Regulation of the Social Security Law which tells us:
– Employers must register their workers with the Institute in the terms established by Law. The employers must communicate to the Institute the wages of their workers.
If the worker has Popular Insurance, am I obliged to enroll him in the IMSS?
Yes, there is often confusion on the part of employers when they think that having the Popular Insurance of the Guanajuato State Health system or having INSABI from the Federal Government, they are not obliged to provide Social Security to their workers.
These two Social Security systems are only focused on the most vulnerable sectors and offer limited medical attention since they do not cover all illnesses.
In addition, the Federal Labor Law, and the Social Security Law and its regulations impose this obligation on the “employer” to provide this right, which according to article 5 of the Federal Labor Law is an inalienable right of the worker.
Thank you all for your questions this week, for more specific information on Inmtec Legal Services™, Inmtec Title Services™, Inmtec Insurance™, Estate Planning, Asset Protection, and AfterLife™ Medical Advocacy by Inmtec™ please contact the author: Angel Marin Díaz at: info@inmtec.net 415-121-9005 and 415-121-8943
