IMSS will assert joint and several liability to combat evasion in terms of outsourcing
Almost a year after the publication in the Federal Official Gazette of the Resolution on outsourcing, issued by the Ministry of Labor and Social Welfare on April 23, 2021, in a conference, the Director of Incorporation and Collection of the Mexican Institute of Social Insurance (IMSS), stated that in situations in which it is difficult to identify a service provider that evades its new responsibilities, the IMSS will look for its clients to notify them of the contractor’s breaches. Likewise, she asserted that for the authorities, the work of implementing the reform on outsourcing did not end with the migration of employees from outsourcing companies to operating companies. During the year 2022, the IMSS and other agencies will continue to monitor and evaluate the conditions in which such changes occurred.
The application of joint and several liability, in terms of articles 12, 14 and 15 of the Federal Labor Law (LFT), is one of the control channels that the authorities will use in 2022 to combat both phenomena: (i) salary reduction ; and (ii) adjustments in the risk premium. In other words, what the IMSS will review is that there is no impact on salary, nor on the work risk insurance premium and that the migration of employees from outsourcing companies to operating companies has occurred in accordance with the principles of the outsourcing reform.
In this vein, the IMSS official asked the legal advisors of the companies not to recommend actions to evade the outsourcing reform, since the labour authority will monitor the implementation of the legal modifications included in the cited Resolution.
Now, regardless of labor joint and several liability, please bear in mind that for a breach of the referred Resolution fines ranging from 250 to 50,000 Measurement and Update Units (UMAS), as established in article 1004 of the LFT.
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