5/19/04 Take care in the hiring of domestic employees by Michael Wein
I recommend that you check domestic help for whether or not the employee comes from a reputable source. Ask for his/her date and place of birth, home address, telephone (if they have one - or their nearest neighbor's otherwise) and names of his/her closest relatives who you could notify in case of emergency. Also, attempt to have the employee provide letters of reference covering years of prior work experience. In any event, have them account for what they were doing and where they were during these years. Attempt to verify previous employment. Most importantly, ask the people giving the any referrals for suggestions on how to establish a good rapport with the employee. A domestic employee will most certainly become a vital part of your family and the more you know about their past, the more comfortable you will be when you leave your house and property in their care. To help facilitate this, create the means for better communication. Tell them what you like, dislike, and your policy on visitors. In your absence. They will also need input from you on how to react in case of an emergency situation.
LEGAL REQUIREMENTS regarding HOUSEHOLD EMPLOYEES in SAN MIGUEL compiled by the oldest receptive tour business in San Miguel, Promotion of Mexican Culture, Hidalgo#16-#18, San Miguel Allende - telephone 152-1630, 154-5312, email email@example.com
Hiring and firing:
How long must an employee work before becoming eligible for "status" and "benefits"? A "test period" (definition: a pre-explained-to-employee-period of up to 3 weeks) may be used to "try-out" a new employee.
What occurs in the way of "benefits" after (how long)? After the above "test period", employee is eligible for benefits such as payments for being fired ("firing" also occurs automatically if the house is sold), etc. The cost to employer for firing is 90 days' salary plus accumulated vacation time (plus 25% premium because paid in cash) plus proportionate days of Christmas bonus plus 12 days pay for each year that employee has worked for you. On the other hand, if an employee quits, they are eligible for only the accumulated vacation time (plus 25% cash premium) plus their share of the Christmas bonus.
The female employee also becomes eligible for pregnancy benefits after having worked a minimum of 3 months before conception. If the employee is covered by Social Security, pregnancy benefits will be paid by Social Security. If the employee is pregnant when hired, employee can be fired but employer must pay regular firing benefits as described above. How and when and where and why can an employee be fired for "cause" or for "no cause"?
What is the Maximum Work Week? The maximum work week is 6 days. Employees must be paid double-time for a seventh day in one week.
When is overtime pay (including calculation of hourly pay) required? For more than 8 hours in any day, employees earn double time for additional hours, as well as for all hours during each holiday worked.
How is hourly time calculated? Multiply weekly pay by 4; divide by 30; then divide again by 8 - this is employee's hourly pay.
What are the legally required holidays? Legal holidays, for which a full-time employee must be given the day off, are January 1, February 5, March 21, May 1, September 16, November 20, and December 25. By local custom, employees may be given the following optional days as well: May 5, Holy Friday, Day of the Dead, and November 20.
What are employer's obligations regarding medical time off, payment of doctors or hospitals, taxies, medicine? Employer must give employee time off for medical problems (whether work-related or not). Either employer or Social Security (see below) must pay for doctor and/or hospital costs. Employer has no legal obligation to pay for medical transportation (but, for employee relations, should do so). Social Security pays for all medicine (employer has no legal obligation to do so).
What about pregnancy leaves? Employer must give female employee a cumulative 3 months' leave with pay. Social Security pays most of this. Limitations on medical benefits? If the employer believes the above benefits are being abused, the employer can set limitations. Employer can also fire the employee, but be certain to understand your continuing responsibilities (see "hiring and firing" below).
What should employee bring in as verification of all medical time off? A note from the doctor is the usual verification document. What is local custom (regarding doing things in excess of obligations)? Many employers consider employees as part of the family and do considerably more for the employee than is required by law.
What should employee tell you regarding sick days? The reason they were absent!
What kind of verification is possible? A doctor's note would be normal verification.
What constitutes "too many" sick days? Only the doctor can stipulate this.
What can employer do if "too many" sick days? If the doctor says they are required, and you feel that they are too many, the laws regarding "hiring and firing" (see above) should be considered.
What records should be kept? Keep the doctor's notes and any other documents given you by the employee. What purpose do they serve? These documents may be useful in the event of a legal claim by the employee.
Must employer pay employee for sick days? Social Security pays for these days (this is another reason to be "legal").
What should employer do regarding unexcused absences? If not discussed previously, employer should inform employee of "house rules". These rules should be uniformly implemented with each employee and for all employees. You can decide the "rule", but be fair about it.
What is an unexcused absence? Any non-medical reason which was not requested (and granted) before the absence. Medical absences without a doctor's note may be considered unexcused absences.
Does employer need to pay employee for unexcused absences? No, but employer may pay AND take this opportunity to reiterate "house rules".
What records should be kept? What purpose do they serve? Employer may keep a "sign-in" register which all employees sign daily when they arrive and leave. While harsher than usual, this may be the only way to document the "unexcused absences" of an employee whom you believe to be taking advantage. This, of course, may be the last step just prior to doing the step listed immediately below.
What can employer do if "too many" unexcused absences? If more than 3 unexcused absences in one month, employee may be fired, but be prepared to offer documentation (see above) in the possible legal case that the fired employee may next try.
What are employer's rights regarding "pre-requested" future absences? Employers should state "house rules" regarding this. An acceptable policy might be: "10 excused days a year, after which employee is not paid for the excused absence".
Does employer have the right to pay or not pay for excused absences? While it is the employer's decision, consistency amongst employees as well as consistency with each employee should be observed. In either case, try to tell employees of "house rules" beforehand.
What is an appropriate (or legal) excused absence? Sickness, death of close relative, or another event of obvious necessity.
What are employer's choices? Employer may say "yes" or "no" to non-necessity requests for an excused absence, especially if requested before the absence occurs.
What records should be kept? What purpose do they serve? Document the absences as much as possible, including notes from employees, from doctors, or even in your own contemporaneous at-the-moment handwriting, if no other documents are available.
How long a period of time must a full-time employee be employed before earning a vacation? One entire year (365 days)
How many vacation days does a full-time employee earn after 1 year? (1 week's vacation); after 2 years? (8 days); after 3 years? (10 days); after 4 years? (12 days); after 5 years? (14 days); after 10 years? (16 days).
May employer pay cash instead of giving vacation days off? Yes, employer must pay a 25% premium over the employee's normal pay.
What kind of recordkeeping is mandatory? No recordkeeping is mandatory, but it is advisable to keep records (including signed receipts) in the event of a disagreement which must be settled under the employee/employer laws.
Christmas Bonus (called "aguinalda"):
When is the bonus payable? At any time before December 20th of each year.
How much is legally required? 15 day's pay (if employee was employed at least one year on December 20th)
How are bonuses for "new hires" computed? "New hires" are paid a proportionate amount, e.g., xx/365ths of 15 day's pay.
Does this change after many years of employment? No, 15 days is the required amount, but nothing stops an employer from paying more)
What receipts should be kept; what purpose do they serve? A signed receipt is a good idea in case of a possible legal challenge.
Some of the following questions are also questions that you should be aware of. However, in some cases the answers are only partial ones (and sometimes, no answers were available at all) as complete answers were not obtainable at the time of the end of this project.
What constitutes a "part-time employee"? What are the break-off points?
What differences does "part time" as opposed to "full time" make?
Social security and other requirements (or options):
Social Security for household employees may or may not be optional. The laws are not very clear about this. It is advised that all employers err on the side of caution and and obtain Social Security coverage. It is costly, but there are benefits to you, too.
Where does employer register for Social Security? The Social Security offices are at Zacateros #___.
What benefits (to employee? to employer?) accrue if and when employer pays social security? The medical and hospital costs of employees are paid by Social Security if and when the employee is covered. The retirement benefits of the retired employee are also covered by Social Security. Registering for Social Security also reduces the legal exposure of the employer.
Retirement benefits - employees with 35 years of accumulated (including with other employers) work and who are 65 years old, are eligible to retire with social security benefits. If the employee is covered by Social Security, Social Security pays all benefits.
Costs of Social Security - __% of the salary is paid by the employer and an equal amount is paid by the employee. For practical purposes, the employee's share is generally paid by the employer.
What are the pension and parting costs at the termination of an employee?
If you are away from your home for prolonged periods of time (weeks, months, etc.), what should you do about:
Does employee have any responsibilities towards employers?
What about personal (your household) work "rules" not specified by the legal system? Employers are also allowed to have "house rules" if they are not in conflict with specific laws. Among these might be observation of specific work hours, requiring advance notification of unexcused days off, limits on unexcused absences, and a myriad of other possibilities. It is recommended that the "house rules" be discussed either before hiring, or if new "rules" are necessitated by otherwise previously unforeseen events, these "rules" should be brought to the employee's attention as soon as possible.
Who or What is the final legal authority on all of this?
There appears to be no handbooks, handouts, manuals, or other authoritative pronouncements on this subject. That, in fact, was the reason this project was started. While we consulted with business people, long-time Mexican residents, lawyers, and accountants, we found that other people, just as knowledgeable as the first ones, more than occasionally gave contradicting opinions on many of the questions raised. The only thing that we were reasonably sure of is that there were laws governing all of this. The best name for such laws were "Mexican Labor Laws". The Juntade Conciliacion y Arbitraje (Labor Court) in Celaya (Calle Pipila) is probably the best source of definitive information. The court can be reached at 01-461-612-3615.
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