The deadline for companies to include in their payroll workers who had under an outsourcing scheme is approaching. As of April 23, when the outsourcing reform came into effect, 90 calendar days were given for private sector companies to make the transition.
But, almost a month after the scheduled date, Mary Kay filed an amparo to maintain the labor subcontracting in the conditions precedent to the current legislation. And the provisional suspension against the reform was granted in Nuevo León by MarÃa del Carmen Leticia Hernández Guerrero, First District Judge in Civil and Labor Matters.
However, the cosmetic firm is not the first or the only company that has filed an injunction against the outsourcing reform. Another 17 companies, from Nuevo León and Mexico City, also decided to take refuge. Five have already obtained provisional suspension.
What are the companies protected against the outsourcing reform looking for? Mary Kay did not respond to an interview request for her reasons. But Javier Zepeda, a business consultant, who is aware of two of the other injunctions, assures that the cause of the appeal is non-compliance with the new guidelines and, above all, the lack of clarity regarding specialized services.
There are those who believe that a specialized service is one that a company can provide due to its degree of specialty. “The Ministry of Labor would have to be more specific in what those services are, why not a catalog of services like the one managed by the SAT to be able to invoice electronically?”, He says.
Zepeda does not foresee that the resolution will be in favor of the companies, since the outsourcing reform was agreed between the government, the private sector and the workers. “I do not see solid arguments on the part of the complainants to reverse this reform,” he says.
Lorenia Atondo, partner of the Reynoso y Atondo Abogados law firm and responsible for other of the 17 appeals filed in the matter, says that obtaining the provisional suspension is already a won judgment. “It is not that companies do not want to enter this new legislative scheme, but it is impossible to do so in the established time,” he says.
Gabriel Fernández, tax attorney from the same office, reiterates that the objective of the injunctions is not to reverse the reform to outsourcing, but to save time. Enough so that the covered companies can continue operating, as they conclude with their payroll transition process, as well as registration with the labor authority as specialized service providers, if applicable.
The public administration has until January 1, 2022 to include in the payroll workers who are in the outsourcing modality, unlike the three months that were stipulated for the private sector. Failure to comply with this, the companies could earn fines that can range from 250 to 5,000 units of measurement and updating (UMA), that is, from 22,405 to 448,100 pesos.
“If the government, as one of the largest employers in the country, gave itself more time to comply with the policy it created, then the process should be more egalitarian,” says Maya Dadoo, CEO of Worky, a software company for human Resources.
The payroll transition is not as smooth, he adds. A company that has people with accounting skills can hire outsourced personnel through payroll programs. And companies that do not have an accountant or a human resources area can resort to a payroll maquila service, that is, a specialized third party that is in charge of the process.
However, Dadoo refers that incorporating 50 employees on a payroll takes an average of fifteen days, and adding more than 500 takes more than three months. In addition, before starting with the change, the company must make sure that it has its employer registration with the IMSS and the SAT.
“Here companies depend on the availability of appointments, and although they have technology behind that supports them to be more efficient, the process is a filter that makes the path to internationalization a little more difficult,” he says.
The intention of the lawyers consulted is that their clients have until next year to comply with the reform. This week they await a resolution.
The domino effect
In Javier Zepeda’s opinion, the fact that large companies like Mary Kay have resorted to an injunction opens the door for more companies to do so. Although he does not consider that this happens in a generalized way because not all have the financial support to do it, especially SMEs.
Likewise, not all companies have the resources to hire subcontractors as their own workers. In a survey carried out by OCCMundial to 500 companies, from June 4 to 10, only 16% said that they will be able to do so, while 24% indicated that they can only hire a few employees.
For 22%, on the other hand, there is no probability of incorporating subcontracted workers into their workforce, and consequently they will have to do without them, once the 90 days given by the labor authority have elapsed.
And on the deadline, 46% of companies do not feel completely sure of completing the payroll transition in a timely manner. Only 37% claim to be ready and with the necessary documentation to achieve it, while 17% acknowledge that they lack detailed knowledge about the reform to be able to make definitive decisions.
