The aguinaldo It is a right that all people with a subordinate job have in Mexico and is established in the Federal Labor Law (LFT) since 1970. The payment of this benefit cannot be less than 15 days of salary and must be covered before the December 20th, at least for the workforce working in the private sector.
In the case of public servants, the Federal Law of Workers in the Service of the State (LFTSE) establishes a bonus of at least 40 days of salary. The federal government can cover half of the benefit before December 15 and the other part before January 15.
Mexico is one of the few countries in the world that has regulated this end of year bonus in its regulations and, although workers must serve at least one year of service to receive the full bonus payment, people who have only worked a few months in a company are entitled to receive a proportional share.
“The Christmas bonus It corresponds to the base, trust, plant, unionized workers, for a specific work or time, season, for an indefinite period subject to testing or subject to initial training, eventuals, commission agents, commercial agents, insurance agents, vendors , among others that are governed by the Federal Labor Law ”, indicates the Federal Attorney for the Defense of Labor (Profedet).
In this sense, Profedet reiterates that the legal framework establishes the employer’s obligation to cover the Christmas bonus in a timely manner.
The aguinaldo It is a benefit that is generated from the days worked. The traditional scenarios for their payment are two: workers with a full year of service and people who have not completed 12 months of work in a workplace. In the first case, the employee is entitled to receive an amount equivalent to a fortnight, at least. But for those who are in the second case, the best calculation method is this:
- 15 days bonus / 365 days = 0.041
- 0.041 x number of days worked in the year = proportional number of bonus days
- Proportional Christmas bonus day x daily salary = proportional bonus
For example, considering that a person receives a monthly salary of 12,587 pesos (average professional salary), if he has a year of service in the company, his bonus will be 6,293 pesos. But if you only have four months of service, in that case your bonus will be approximately 2,061 pesos.
Scenarios with the reform of outsourcing
The subcontracting reform and the new rules for the provision of specialized services led companies to make modifications to their internal structures to comply with legal provisions. These movements pose at least four possible scenarios for the payment of the Christmas bonus for workers who were transferred from a scheme of outsourcing to an operating company.
»Scenario 1. Employer substitution
According to the Mexican Institute of Social Security (IMSS), 2.9 million workers They came out of a subcontracting scheme and were recognized by their real employers through the employer substitution mechanism. In this scenario, people will not have any alteration in the payment of the bonus, but it will be the substitute employer who must cover the benefit.
Luis Rosas, counsel from the labor practice of Hogan Lovells México, emphasizes that the employer substitution it does not alter working conditions and does not affect the seniority of workers.
“Employer substitution, as the name implies, is only the substitution of the employer. But since the employment relationship does not change for employees, their rights are not violated. So, if there was an employer substitution, what happens is that the substitute employer is the one who will have the obligation to pay the bonus to the worker, because in an employer substitution there is no settlement or benefit payment, because the employment relationship remains the same “, Explain.
In this vein, the specialist points out that workers who changed employers through this figure have the right to receive the same amount of aguinaldo that they received with the substituted employer. This means that if in the individual or collective contract the benefit was greater than the minimum 15 days established by the LFT, the amount cannot be altered by the substitute employer.
“In the employer substitutionOne of the obligations of the substitute employer is to respect the conditions that the employee had agreed with the substituted employer. That is, no condition can vary because it is the same employment relationship and this obviously must be foreseen because many companies grant a bonus of more than 15 days, so that bonus in replacement of employers will have to be paid with the same number of days ” , explains Luis Rosas.
»Scenario 2. Workers terminated and rehired
Although there is no concrete figure, some organizations opted for liquidate workers to hire them again with another company name or company that does comply with the new rules established by the reform. In these cases, when a settlement was involved, the bonus payment is proportional.
“For example, if a person was terminated or had his past employment relationship compensated and started again from scratch, there the bonus It will be proportional to the date on which the contract was presented and until the month of December. The bonus is a benefit that is generated over time and if you were liquidated in September and rehired the day after termination, you started a new employment relationship, with a new company and new benefits ”, explains Carlos Ferran, managing partner of the Ferran Martínez Abogados firm.
This is so, adds the specialist, because the amount received by a worker as settlement includes the proportional part of the bonus generated in the company with which the employment relationship ended.
However, whether the companies have made an employer substitution or liquidated the workers to hire them again, in both cases there is no reason not to cover the benefit.
“Regardless of the changes, the bonus is a constitutional right and embodied in the regulatory law and, obviously, when we talk about an employment relationship, the right to the Christmas bonus is inalienable, ”says Carlos Ferran.
»Scenario 3. Settled without a new contract
This situation is similar to that experienced by workers who lose their jobs before December. Those who have been terminated due to internal changes to comply with the outsourcing reform and were not hired again, received their proportional part of bonus with your settlement.
During a Worky webinar, Mario Gómez, a tax specialist, indicated that a scenario that was also left by legal changes to the tax scheme outsourcing It is that of the people who lost their employment relationship completely, in which cases the benefit should have been covered with their settlement and proportional to the days they worked in the organization.
»Scenario 4. Salary increase
Salary increases are not an action that is limited to the routsourcing form, but it is part of the cases that must be foreseen for the payment of the Christmas bonus. Luis Rosas believes that workers who had a salary increase when transferred to the other company should receive the benefit based on this adjustment.
“The bonus must be paid according to the last salary that the worker earns. If the employee was fortunate enough to have a salary increase in October, for example, because they were promoted, their salary increased, or for whatever reason they had a salary increase before the due date. Christmas bonus, he would have the right to have his benefit covered with this last salary ”, points out the specialist from Hogan Lovells.
Despite the fact that in these cases the legal framework lends itself to different interpretations, Carlos Ferran agrees that one way in which it can be calculated is by considering the last salary, but there are also arguments for the bonus to be determined based on the two salaries that the person has had during the year.
Exempt from bonus and penalties
Companies are only obliged to cover the Christmas bonus for people with whom there is a remployment relationship. That is, people in a fee or professional service provision scheme – as long as they are real in practice – are not entitled to receive the bonus.
The Federal Labor Law contemplates sanctions for companies that do not comply with the payment of the Christmas bonus in a timely manner, this fine can be between 4,481 and 448,100 pesos. As of December 20, workers have one year to claim this benefit if they have not received it.
The Profedet is one of the instances to claim the bonus when the employer did not cover the benefit and the workers can contact the (800) 911-7877, at extensions 44740 and 44741 for guidance. In addition, the institution enabled the line (55) 1484-8737 to receive questions through WhatsApp messages.
“In accordance with current legislation, all working people have the right to receive before December 20 each year an amount of money equivalent to at least 15 days’ salary, which is called the Christmas bonus. Likewise, it indicates that those who have not completed the year of service, regardless of whether they are working or not on the date of liquidation of the bonus, must receive the proportional part ”, emphasizes Profedet.