Companies have until March 31 to submit their annual declaration to the Tax Administration Service (SAT). Once this procedure is completed, no later than May 30, they must cover the payment of the Employee participation in profits (PTUs); this will be the first time that the amount is covered with a cap established within the subcontracting reform.

The profit sharing was one of the central elements in the discussion of the reform of outsourcing in 2021 and a demand from the employer sector. As part of the negotiations for the legal modifications, a cap was set on the amount to be distributed among the workers in two posibilities: the equivalent of three months of salary or the average PTU received in the last three years, whichever is more favorable for the worker.

This was established after the private sector showed the distortions that the disappearance of the schemes would cause. labor outsourcing in the OCT.

The Ministry of Labor and Social Welfare (STPS) estimates that as a result of the reform and the recognition of workers by their real employers, the proportion of profits to be distributed among the labor force will go from 2.8 to 7.7% in 2022. This represents a increase of more than 100,000 million pesos. In addition, you will go from an average payment of 22 to 57 days of salary on average.

But the ceiling that was set with the reform opens the door to different scenarios and doubts regarding compliance with this obligation and constitutional right, specialists agree.

“There will be a significant impact on the amount of the Employee participation in profits of the company as an immediate consequence of the elimination of subcontracting, mainly internal”, says Óscar de la Vega, partner of D&M Abogados.

From the perspective of Jorge Sales Boyoli, partner of the firm Littler México, at the time of setting the limits, the different stages that could be presented. “A recurring query in which there is no uniform criterion is that if the change or transfer of workers was made in the ninth month of 2021, the workers must access the PTU for the entire year or from the date they were transferred. . That is a detail that does not regulate the reform.

According to the specialists consulted, these are the scenarios for profit sharing in 2022:

1. Payment of two PTU

For Luis Enrique Cervantes, a partner in the Labor Area of ​​the firm González Calvillo, all the companies that carried out staff transfers To comply with the reform, they must be “careful”, because if the workers were migrated to a company of the same group, they have to distribute two PTU: that of the company that provided labor subcontracting services and that of the company that received the workers. employees after the reform.

“What is a fact is that workers have the right to both OCTs because the worker had two employers and these employers will have to pay the corresponding PTU. In the first case, with their former employees; in the second, with its new employees”, explains the specialist.

According to the Mexican Social Security Institute (IMSS), 2.9 million workers they were recognized by their actual employers in the wake of outsourcing reform. This universe could be subject to the payment of two amounts for profit sharing.

2. Same salary and position, but lower PTU

As a result of the new rule, although companies must share the 10% of your earnings, workers may not receive an amount greater than three months of salary or the average of what was received during the last three years. However, in the cases of employees who have not been in a company for more than three years, the limit of three months of salary will be applied to them and they will receive a lower amount even though they have the same salary and position as other colleagues, he points out. Oscar de la Vega.

“Imagine the social and labor inequity, and the problems that will be generated in companies when for a worker with more than four years of seniority his average PTU far exceeds the three-month limit, but this limit must be applied to all new ones, ”says the specialist.

3. Right to PTU, but not for the whole year

Another situation that may arise, Jorge Sales Boyoli believes, is that companies cover PTU based on the months that people were in the company. In other words, workers who were migrated throughout 2021 to another organization will receive the profit sharing from their new employer, but individually as of the date they were transferred.

“This is a benefit that legitimately seeks to ensure that workers participate in the wealth generated by the company. If the spirit is that, it gives the impression that the employer must distribute the PTU proportionally to the period in which you contributed to the generation of wealth. That is, to the period that you were transferred.”

4. Merger of companies, a single PTU

If compliance with the reform of outsourcing was presented through the merger of companies, Luis Enrique Cervantes considers that two payments of profit sharing“because the assets are absorbed by the merging company”.

However, adds the specialist, in these situations only PTU payment would be granted, but it would have to be calculated based on the earnings of the two merged companies.

“This year is going to be irregular for many companies because they are going to have to weigh this type of circumstance. In the future it will be a normal operation”, indicates the specialist.

What you didn’t know about profit sharing

The profit sharing It was established in our Constitution in 1962 and it is a right that every working person in Mexico has to receive part of the profits generated by the company in response to their efforts to generate them. In Latin America, countries like Chile, Brazil, Peru and Venezuela have similar schemes.

Moral persons (companies) have up to May 30 to cover the benefit and natural persons with business activity have a deadline of June 29, this is so for the periods they have to present their annual declaration to the SAT.

Manuel Fuentes Muñiz, a professor at the Metropolitan Autonomous University, affirms that the OCT It is one of the most contentious issues in the world of work, although there is little culture of complaint as it involves very technical details.

From the perspective of the specialist, the cap on profit sharing was “a bargaining chip” for the subcontracting reform to reach a tripartite agreement, but in some cases it will imply a decrease in the amount that workers will receive.

In accordance with the provisions of article 123 of the Federal Labor Law (LFT), the amount of profits to be distributed is divided into two equal parts. The first is distributed equally among all workers, taking into account the number of days worked during the year, regardless of the amount of wages. The second, based on the wages received by the workers.

The LFT establishes exceptions in which companies do not have to pay PTUbetween them:

  • Newly created companies in the first year of operation are exempt from payment.
  • Directors, administrators and general managers do not participate in the distribution.

The fines for not sharing the profits of the company with the workers range between 24,055 and 481,100 pesos. The specialists consulted agree that the profit sharing in 2022 it will be a challenge for companies and will require in-depth analysis due to the various scenarios generated by the changes in the context of the prohibition of labor subcontracting.

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