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Jun, 2024

Working hours above the Law are considered a crime in accordance with the General Law to Prevent, Punish and Eradicate Crimes in the Matter of Human Trafficking and for the Protection and Assistance to the Victims of these Crimes.

On June 7, 2024, the Decree that reforms and adds various provisions of the (“Human Trafficking Law”) was published in the Official Gazette of the Federation in the Evening edition.

The Human Trafficking Law adds section IV to article 21 which states:

Article 21. Anyone who exploits one or more people in the workplace will be punished with a penalty of 3 to 10 years in prison, and a fine of 5,000 to 50,000 days.

Labor exploitation exists when a person obtains, directly or indirectly, unjustifiable economic or other benefits, illegally, through the work of others, subjecting the person to practices that violate their dignity, such as:

I. Dangerous or unhealthy conditions, without the necessary protections according to labor legislation or existing standards for the development of an activity or industry;

II. Existence of a manifest disproportion between the amount of work performed and the payment made for it, or

III. Salary below what is legally established.

IV. Working hours above what is stipulated by law.

In the case of people belonging to indigenous and Afro-Mexican peoples and communities, the expected penalties will be 4 to 12 years in prison, and a fine of 7,000 to 70,000 days.

Now, article 10 of the Human Trafficking Law indicates the various actions that constitute the various crimes indicated in the Law when said actions have the purpose of exploiting people.

Article 10.- Any intentional action or omission of one or more people to capture, hook, transport, transfer, retain, deliver, receive or house one or more people for the purposes of exploitation will be imposed from 5 to 15 years in prison and from one thousand to twenty thousand days fine, without prejudice to the sanctions that correspond to each of the crimes committed, provided for and sanctioned in this Law and in the corresponding penal codes.

Within the various concepts of exploitation of people listed by Article 10, section IV refers to labor exploitation and refers us to article 21 of the Law which indicates the cases in which labor exploitation will exist and within which, Fraction IV is added that states:

IV. Working hours above what is stipulated by law.

Elements of labor exploitation

Article 21 states that labor exploitation exists when:

a) An unjustifiable benefit is obtained directly or indirectly, whether economic or otherwise.

b) That is obtained illicitly, either through the work of others or by subjecting people to:

  • Dangerous or unhealthy conditions without necessary protections
  • Existence of notorious workloads disproportionate to the perceived floor
  • Salary below the established legal minimum and
  • Working hours above those stipulated by law.

In reference to working hours above what is stipulated by Law, it would indicate that an Employer commits the crime of exploitation of people, when requesting its workers to work more than 9 overtime hours a week, since this modality would be above the maximums established in the Federal Labor Law, which in addition to the ordinary working hours establishes the obligation of employees to work up to 9 overtime hours per week if the Employer so requires.

Now, the nature of the Federal Labor Law is different from that of the Human Trafficking Law, since the former regulates the labor relations between employees, protecting the rights and obligations of each of them.

Among the workers’ rights is the refusal to work more than 9 overtime hours a week, and if the employee accepts, he or she will have the right to receive triple payment for each extra hour worked beyond the first 9. On the other hand, The Employer is obligated to triple pay for the overtime exceeding first 9, and also will ber subject to fines for exceeding the maximum time for overtime.

Regarding the Human Trafficking Law, what it seeks is to eradicate human trafficking by preventing and punishing, among other things, the exploitation of people.

For the crime of exploitation of a person to occur when working hours longer than those permitted by law are applied, the following assumptions would have to occur:

  • That an unjustifiable benefit is obtained directly or indirectly, whether economic or of another type.
  • That is obtained illicitly, either through the work of others or by subjecting people.

Under this order of ideas, if an employer requests its employees to work more than 9 overtime hours a week, based on an employment contract, it would be obtaining a benefit in its production, etc. in a legal manner, since the request in based on the employment relationship that governs between the parties. On the other hand, the employee has the right to refuse to work more than 9 overtime hours a week and if he accepts, he has the right to receive triple payment for each overtime hour starting from the ninth overtime hour, so he would NOT be subject to.

Based on the above, we consider that the essential elements would not be present for the crime to be constituted in terms of articles 10 and section IV of article 21, however, this is only an opinion and it must be taken into account that the authorities could have a different opinion, so we recommend an analysis for each particular case reinforced with the opinion of an expert in criminal matters.

Alfonso González Uribe
Labor and Employment Practice