Introduction

The use of job offer letters in Mexico has become a common practice in the business sector when an employer wishes to communicate the terms of employment to a potential employee who would perform a job with a certain degree of responsibility.

Although this practice has spread over the years, from a legal perspective Mexico remains an extremely traditional country when it comes to labour and employment matters. The use of job offer letters has created a number of issues when trying to adapt this practice into a Mexican legal context.

This update identifies the main legal and formal aspects that must be taken into consideration when preparing a job offer letter for an individual who would carry out his or her services in Mexico.

Legal aspects to consider

In comparison to employment contracts, job offer letters are not covered under federal labour law (ie, the piece of legislation that establishes the legal framework of both individual and collective employment relationships). As a result, there are no minimum legal or formal requirements that must be observed when an employer prepares an offer letter. Rather, employers are influenced by the manner in which offer letters are prepared in other countries, particularly the United States. There are several aspects that might seem harmless from a business perspective, but that could have undesirable consequences from a legal standpoint.

Job offer letters per se do not create an employment relationship under Mexican law from the moment in which they are issued and signed by a company representative and eventually by the employee, as the potential employee has not yet rendered any service for the employer and the latter has not paid him or her any salary. However, when the start date established within an offer letter arrives and the employment relationship begins, the letter becomes binding for the parties.

The most common issues that employers must consider regarding the use of job offer letters are as follows:

  • Only the employing entity that will directly hire the candidate should appear in the job offer letter. Although this might seem obvious, in practice offer letters are usually delivered by legal entities or foreign companies that are different from the actual employer.
  • Employees in Mexico are entitled to certain legal mandatory employment benefits (ie, Christmas bonus, vacations and vacation premiums). These benefits should be reflected within job offer letters – at least conceptually – when referencing federal labour law. Should employers choose to grant better conditions regarding mandatory benefits, they should also be included under the reality principle.(1) Further, all other contractually agreed perks in favour of employees should be included to the extent that they can be implemented under Mexican law (eg, some offer letters based on US forms include the 401(k) retirement plan, which due to both legal and practical reasons cannot be granted to employees that render services in Mexico hired by a Mexican legal entity).
  • Employers typically ask employees to return a signed job offer letter via email. However, Mexico tends to be an extremely traditional country and if objections are raised over the signatures, it is easier to prove that they belong to an employee by submitting the original document signed by him or her rather than an electronic document. Therefore, having a hard copy of the signed offer letter could be useful in the future.
  • Job offer letters should ideally be signed by Mexican representatives acting on behalf of a Mexican employer. Should litigation arise in which the offer letter becomes an issue, the company representative who signed the letter could be called to testify before the Conciliation and Arbitration Board (the labour authorities).
  • Although Mexican law does not prohibit employment-related documents from being written in English or any other language, when the documents need to be submitted to an authority they should be accompanied by a Spanish translation from an official translator. This is important in the case of labour proceedings initiated by employees who have allegedly been wrongfully dismissed. Therefore, job offer letters should ideally be issued in Spanish or in two columns (Spanish and English or any other language) to avoid the need to be translated.
  • Although job offer letters include most conditions and benefits under which the employment relationship would be established, the use of offer letters does not eliminate an employer's obligation to execute an employment contract in which certain formal requirements should be met. The terms of offer letters should also be reflected in employment contracts. Employers bear the burden to submit employment contracts in case of litigation before the Conciliation and Arbitration Board.

Comment

As job offer letters have become customary around the world and Mexico has definitively adopted this practice, it is useful to keep the points described above in mind when preparing job offer letters for candidates. Although other less common issues may need to be considered, if the legal and practical suggestions referred to above are followed, it is likely that potential negative consequences will be avoided – particularly in terms of future conflict after the employment relationship has begun.

For further information on this topic, please contact Francisco Udave Treviño at Santamarina y Steta by telephone (+52 55 5279 5435) or email (fudave@s-s.mx). The Santamarina y Steta website can be accessed at www.s-s.mx.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.