On April 23th, 2021, the subcontracting reform was published within the Official Gazette of the Federation. The main points of such reform are the following:
• Subcontracting personnel is prohibited (even for government agencies and institutions to whom such restrictions will apply as of the fiscal year 2022), which exists when an individual or legal entity provides or makes available its own workers for the benefit of a third party.
• Subcontracting specialized services or specialized tasks is allowed, as long as the same are not part of the corporate purpose or the economic activity of the beneficiary thereof.
• Complementary or shared services provided by companies of the same business group are also considered as specialized services as long as they are not part of the corporate purpose or of the main economic activity of the company that receives such services.
• Employment agencies or intermediaries may participate only in the process of recruitment, selection and training of personnel, without being able to be considered employers of the people they place or train.
• The individual or legal entity that subcontracts services will be jointly liable with the contractor, in case of breach of its labor obligations.
• Individuals or legal entities that act as subcontractors have the obligation to register before the Ministry of Labor and Social Welfare (STPS for its acronym in Spanish) and to renew their registration and authorization every 3 years within a public record. The registration guidelines will be issued by the STPS within 30 days following the entry into force of the reform. There will be a possibility of obtaining the registration automatically if the authority does not respond the petition within a certain period of time.
• In order for the employer substitution to take effect in labor matters, it will be necessary to transfer the assets from the first company or establishment to the substitute employer. However, this rule will not apply in case of substitutions that take place within 90 calendar days after the publication of the reform in the Official Gazette of the Federation.
• The companies that had hired workers in a subcontracting regime have the possibility of preserving the risk premiums, as long as they transfer subcontracted personnel with recognition of rights (seniority) and provided they have been correctly classified before the labor risk insurance at the Social Security Institute; also, there will be specific rules in the event that a company absorbs multiple subcontractors.
• A limit is established for the distribution of profit sharing (PTU for its acronym in Spanish) up to 3 months of the employee’s salary, or the average paid in the last 3 years, whichever is higher, as long as profits are generated by the employer company.
• Fines are added in case an employer does not allow the inspection and supervision of the authorities, as well as in the event that the requested information is not delivered, or if there is no registration before the STPS in the case of specialized services or specialized task providers.
• The obligation to submit different data of the parties, contracts, contribution base salary, registration with the STPS, among others, to the Mexican Social Security Institute (IMSS for its acronym in Spanish) is maintained on a quarterly basis, which will be required within 90 calendar days following the entry into force of the reform; and on a four-month period for purposes of the National Housing Fund Institute (INFONAVIT for its acronym in Spanish), once said institute approves the appropriate rules within 60 calendar days following the entry into force of the reform.
• Payments for specialized subcontracting may be deductible and creditable for Value Added Tax as long as they comply with the applicable tax requirements, but simulations and subcontracting of personnel will be considered as qualified tax fraud. The changes in the Federal Tax Code, the Value Added Tax Law and the Income Tax Law will enter into force on August 1st, 2021.
The reform has entered into force for employment and social security purposes as of April 24, 2021, except for those aspects that have specific deadlines for that purpose, in the terms indicated above. Below please find the relevant link to the official publication: