Amenments in Outsourcing Matters


To Our Clients and Friends:

On April 23, 2021, it was published on  the Official Gazette of the Federation  (DOF), the Decree that amends, adds and  repeals several provisions of the Federal  Labor Law (LFT), Social Security Law  (LSS), Law of the National Institute of  Housing Fund for Workers  (LINFONAVIT), Fiscal Code of the  Federation (CFF), Income Tax Law  (LISR), Value Added Tax Law (LIVA),  among others, regarding labor  subcontracting (known as outsourcing).  The aforementioned Reform takes effect the day after its publication in the DOF.

The following are among the most  important reforms:

  1. The subcontracting of personnel  is prohibited, as is the case of insourcing schemes, this is when  a big company creates another  company to manage the group's  human capital through it.
  2. Companies may only subcontract services and specialized works that are not part  of their corporate purpose or  predominant economic activity.
  3. The services or works provided between companies of the same group will be considered as  specialized as long as they are not  part of the corporate purpose or  the predominant activity of the  company that receives them.
  4. Employment agencies may only  participate in the recruitment,  selection, training and training of  personnel, but may not be  employers of the people they  recruit for other companies.
  5. The company that subcontracts  services or works will be jointly  and severally liable in the event  that the contracting party does not  comply with its employer  obligations (SAT, IMSS,  INFONAVIT).
  6. The subcontracting companies  will have to register and form part  of a registry of the Labor Ministry  (STPS); said registration will  have to be renewed every three  years. The STPS will have thirty  days after the reform is published  to issue the corresponding rules.
  7. The subcontracting companies  will have to file a report before  the INFONAVIT every four  months with the information of  the agreements executed with  other companies, the information  of the workers and the  determination of the base salary.  Said institution will have two  months after the reform is  published to issue the  corresponding rules.
  8. INFONAVIT shall have the  faculties to report directly to the  STPS the breach of the  obligations of the companies in  the sector.
  9. The subcontracting company  that does not allow the inspection  of the labor authorities and does  not file the requested information  may be entitled to a fine of up to $  448,100.00 pesos.
  10. Companies that operate or  subcontract services without  having the STPS registration will  be subject to fines of up to 4.5  million pesos.
  11. Only those payments for subcontracting services or works  that are not part of the corporate  purpose or preponderant activity  of a company may be deductible  or creditable.
  12. Using simulated outsourcing or  insourcing schemes will be  considered as tax fraud, a crime  that is punishable by jail.
  13. After the reform is published in  the Official Gazette of the  Federation, companies will have a  period of three months to transfer  subcontracted personnel to their  payrolls.
  14. Companies that assume  themselves as employers of  subcontracted personnel will have  to recognize their labor rights and  seniority period.
  15. The distribution of profits will  have a maximum limit equivalent  to three months' salary or the  average received in the last three  years, whichever is higher.

Finally, we recommend that you  contact us as soon as possible, to  analyze in time, the legal measures that  your company will have to take in case  that it has a valid labor subcontracting  agreement.

Sincerely, 
Pasero Abogados, S.C.


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