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Gisela Talamantes Saenz, Attorney at Law with Baja Legal Solutions.
Employees must demand their rights to be respected, but sometimes they themselves abuse their employers.
Labor lawsuits have become a common practice. Unfortunately, the labor laws in Mexico do not offer a balance between the employer-employee relationship, the burden of proof lies more and more with the employer over protecting the employee allowing him/her to demand extra payment even though they did not deserve it or did not apply to the type of working relationship that existed.  Unfortunately, the employer, by not complying with the labor laws and not producing the legal paperwork required by the law, puts himself at risk.
In Mexico any employee may initiate a labor lawsuit if he/she wishes, as the burden of proof during the trial lies with the employer and not with the employee. The employee does not need evidence to support his claim, but the employer needs to produce the evidence to challenge the employee’s arguments.
Also, beware that once you receive a labor lawsuit you must appear at the first hearing. If you fail to appear or send legal representation, all claims made by the employee in his initial writ will be considered to be true and confirmed by the employer. Therefore, it is essential not to miss the hearing; if you cannot attend or are traveling, do designate legal representation to appear on your behalf.
A labor lawsuit may last up to five years, depending on the claim.  The Labor Relations Board that handles these claims have not been able to stop the frivolous claims of employees acting in bad faith and abusing the system or in case of a foreign employer, taking advantage of their lack of knowledge of the Mexican labor laws.
What to do to protect yourself and your assets from a frivolous claim by your employees
What is the employer required to produce to defend himself?
According to Article 804 of the Federal Labor Law.- The employer has the obligation to keep and exhibit in trial the following:
I. Individual employment contracts, if there is no union contract;
II. Employees list and payroll of staff, or payroll stubs;
III. Attendance control;
IV. Receipts of profit sharing payments, vacations, annual bonuses, antiquity, as well as other premiums referred by the law;
V. Others required by the law.
The documents stated in fraction I. shall be kept while the employment relationship exists and one year after; the ones stated in fractions II, III and IV during the last year and a year after the employment relationship was terminated.
Article 805 of the Federal Labor Law states that the non compliance of the above mentioned, establishes a presumption that the facts alleged by the employee in his/her lawsuit writ are true in relation with such documents, unless the employer can prove otherwise.
According to Article 784 of the Federal Labor Board, The Labor Relations Board will release the employee of the burden of proof, when by other means they are able to learn the facts. This will require the employer to show the documents that, according to the law, they have the obligation to keep on file in the company, under warning that if not, the facts alleged by the employee are true. In any case, it is the responsibility of the employer to prove his version where there is controversy regarding:
I. Employee first date of work;
II. Employee antiquity;
III. Absent to work by the employee;
IV. Causes of employment termination;
V. Termination of employment or individual contract for project or period in the terms of articles 37 fraction I and 53 fractions III of this law;
VI. Certificate of notice in writing for reason of termination and last day of work;
VII. The employment contract;
VIII. Duration of shift;
IX. Payment of required holidays and rest days;
X. Enjoyment and payment of vacations;
XI. Payment of Sunday Premium, vacations, and antiquity.
XII. Amount and payment of wages;
XIII. Payment of profit sharing percentage to employees; and
XIV. Incorporation and contributions to the Affordable Housing Department.
Since the employer has the legal obligation to keep in the company these documents and to show them in trial, if he does not present them, the facts alleged and claimed by the employee in his lawsuit writ are presumed to be true and the employee will have to pay the amount awarded by the Labor Relations Board in favor of the employee.
The Labor Relations Board has the ability to request property and assets to be lien in order to secure the employee´s payment.

For more information please contact Gisela Talamantes Saenz at gisela@bajalegals.com or via cell phone 612.136.4598.  Website: www.paradiseinbaja.com:  offices in La Paz and Los Barriles.

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