On May 13, 2022, an isolated thesis identified with the number 2024603, issued by the First Collegiate Court in Civil and Labor Matters of the Eighth Circuit and derived from direct amparo number 608/2020, was published in the Federal Judicial Gazette (the “Precedent”).

The Precedent establishes that, from a grammatical interpretation of articles 156 and 157 of the repealed Social Security Law, it is noted that the orphan’s pension is granted by the Mexican Social Security Institute (“IMSS”) to the children minors under 16 years of age, as well as the elderly who cannot support themselves with their own work due to a chronic illness, physical or mental defect, when the father or mother dies. Likewise, if the father or mother enjoyed a pension for disability, old age or unemployment and had a minimum of 150 weekly contributions, the amount of the orphan’s pension shall correspond to 20% of the pension in question when one of the ascendants is missing, and of 30% when both are missing.

Therefore, the Precedent concludes that, since the orphan’s pension is an insurance issued directly from the Constitution, it is necessary to establish a minimum, in order to guarantee the fundamental right to a decent standard of living. In this sense, the amount of the aforementioned pension may not be less than the current general minimum wage. The foregoing, since both minors and disabled people are vulnerable groups subject to special protection, therefore, the pension granted to them derived from the death of their parents shall satisfy their right to the vital minimum.

Although it is true that the Precedent is an isolated thesis, it could be used as an argument, in its case, in litigation, so that vulnerable groups have a better quality of life, since what the Precedent provides is that the pension will never be less than the minimum wage. In addition, what is established in the Precedent does not imply the payment of an additional amount by the company, nor by the employee, since they will continue to pay the same percentage that is currently paid to the IMSS.

At Trejo Gutiérrez Abogados, we have a group of experts in labor matters with more than 20 years in the market. Please do not hesitate to contact us, we will be glad to provide the personalized legal advice that you require.