Technology & Outsourcing 2022 Comparisons

Even though outsourcing is heavily regulated by labour and tax legislation in Mexico, outsourcing of specialised services such as IT is permitted, provided that the applicable requirements are complied with. The recently enacted subcontracting reform has caused companies that outsource IT services to conduct a more thorough due diligence in connection with their IT solutions suppliers, as they are jointly liable for any lack of compliance with employer obligations by such services providers.

The need to optimise business processes and innovate products and services is noticeably boosting the growth of IT outsourcing, which continues to be a thriving industry in Mexico, both in the domestic and cross-border markets. This increased use of IT outsourcing services in all industries is driven by companies' common quest to achieve sustainable development, reduce operation costs and increase productivity across all aspects of their businesses and raise profit margins.

In the domestic market, it is common for companies to outsource all or part of their IT functions to third parties in order to benefit from the specialised knowledge of IT suppliers, gain access to new technologies and focus on the core business of the company.

In the cross-border market, Mexico has been a long-standing alternative for international organisations to achieve reduction in their operational costs through outsourcing functions such as IT to a country with lower labour rates. Additionally, there appears to be a growing trend in IT outsourcing for foreign customers ‒ particularly companies in the USA and Canada ‒ to abandon traditional offshore IT outsourcing destinations such as India or China in favour of nearshore outsourcing, for reasons of cultural and time zone proximity.

In this respect, Mexico stands out from other countries in Central and South America, owing to its convenient geographic proximity and the increasing number of highly qualified professionals available in its IT industry.

Up until 2021, business process outsourcing (BPO) was enjoying significant growth in Mexico, thanks to the benefits companies reaped from delegating some of their administrative and operational processes to third parties.

In spite of this, the subcontracting reform published on 23 April 2021 heavily regulated outsourcing in Mexico and forbade subcontracting of services when such are equal to the core business activities of the beneficiary thereof. The only exception to this ban is where subcontracted employees provide “specialised” services ‒ that is, services or projects not included within the corporate purpose or primary economic activity of the beneficiary of said services.

Mexican companies have therefore been forced to re-evaluate their outsourcing of certain business processes in order to ensure compliance with the “specialisation‟ requirement established in Mexican law. As a result, some businesses have chosen to insource processes that are very closely tied to their core activities to avoid potential liabilities. This scenario has hindered the growth of BPO in Mexico to some extent.

New technologies appear to have transformed the Mexican labour market, as opposed to having a detrimental effect on it. The arrival of new technologies has changed the way in which many industries operate, and the human resources that they require.

As a consequence, there have been reductions in force and ‒ in limited cases ‒ even the shutting down of companies in industries that are particularly exposed to technological innovation and automation. There has, however, also been an increase in the demand for highly technical work/human resources to design, operate and maintain the systems brought by new technologies.

While most companies have introduced certain technologies such as cloud computing and robotics as part of their business operations, other technological developments (eg, AI, blockchain and cryptocurrency) have had a much slower impact or have been concentrated exclusively in specific industries and/or areas of the business.

Constant technological innovation has resulted in companies outsourcing certain specialised services in order to boost their capabilities by using up-to-date technologies and equipment that facilitate success in a digital world.

Subcontracting Reform

On 23 April 2021, the Mexican Official Federal Gazette published a decree (known the “Subcontracting Reform”) that amended the Mexican Federal Labour Law (FLL), the Social Security Law and different tax regulations. It main purpose was to prohibit subcontracting of personnel in Mexico.

The Subcontracting Reform defines subcontracting of personnel as the act whereby “an individual or an entity provides its own employees or puts them at the disposition of another party”. Pursuant to this reform, both insourcing and outsourcing employment structures – which were commonly used in Mexico to reduce profit-sharing (and sometimes social security) payment obligations and transfer employment liabilities to third parties – are now deemed illegal.

Specialised Services

The only exception to the aforementioned general prohibition is the rendering of specialised services that are not part of the corporate purpose or the primary economic activity of the beneficiary of such services.

In order for the provision of specialised services to comply with the Subcontracting Reform, the following requirements must be met:

• such services shall not be part of the corporate purpose or the main economic activity of the beneficiary thereof;
• the service provider shall register with the Mexican Labour Ministry's Registro de Prestadoras de Servicios Especializados (REPSE) as a provider of specialised services;
• the provision of the services must be recorded in a written agreement that fulfils certain statutory requirements; and
• the services provider shall comply with certain reporting obligations to Mexican social security authorities, as well as to the beneficiaries of their services.

Sanctions

The Subcontracting Reform sets forth the following sanctions in relation to subcontracting of personnel.

• Parties that perform or benefit from subcontracting of personnel may be subject to economic penalties from labour authorities, ranging from approximately USD8,830 to USD220,600 per each affected employee.
• Parties that provide specialised services without supplying the information required by social security legislation may be subject to economic penalties from social security authorities, ranging from approximately USD2,200 to USD8,830.
• Parties that provide specialised services without supplying the information required by tax legislation may be subject to economic penalties from tax authorities, ranging from approximately USD7,500 to USD15,000.
• Payments made as consideration for unauthorised subcontracting of personnel will not be deductible.
• VAT associated with payments related to subcontracting of personnel will not be creditable.
• Subcontracting of personnel for the purpose of avoiding payment of tax obligations could be considered a qualified form of tax fraud.

Obligations for Specialised Services Providers

The provider of specialised services shall deliver evidence of compliance with employer obligations to the recipient of the services and to applicable social security authorities, as described herein.

The provider of specialised services shall supply the following information to the recipient of such services:

• a copy of the REPSE registration;
• a copy of the tax receipts for the payment of salaries of the employees by whom the services have been provided;
• a copy of the payment receipt issued by a banking institution for the declaration of the tax withholding made to such employees;
• a copy of the payment of employer contributions to the Mexican Social Security Institute (Instituto Mexicano del Seguro Social, or IMSS) and payment contributions to the Institute of the National Housing Fund for Workers (Instituto del Fondo Nacional de la Vivienda para los Trabajadores, or INFONAVIT);
• a copy of the declaration of the VAT; and
• a copy of the acknowledgment receipt for the corresponding paid period in which the payment was made and the VAT was transferred (this information shall be delivered no later than the last day of the following month in which the payment was made by the provider).

The provider of services shall deliver a copy of the REPSE registration to the social security authorities on a quarterly basis (no later than the 15th day of the months of January, May and September), along with the following information.

• For the parties of the specialised services agreement:
1. name;
2. corporate name;
3. Federal Taxpayers’ Registry (Registro Federal de Contribuyentes, or RFC) number;
4. domicile;
5. e-mail; and
6. contract telephone number.
• For each specialised services agreement:
1. purpose;
2. term;
3. RFC number of the beneficiary; and
4. list of employees who will render the specialised services, indicating their:
1. name;
2. Unique Population Registration Code (Clave Única de Registro de Población, or CURP);
3. social security number; and
4. base contribution salary.

In addition, the provider of the specialised services shall provide to the National Workers’ Housing Fund Institute, no later than the 17th of the months of January, May and September, the following information in connection with the specialised services agreements executed within a four-month period:

• general data;
• service agreements;
• amounts of contributions and amortisations;
• information of the employees;
• determination of the base salary contribution; and
• copy of the REPSE registration.

After the Subcontracting Reform was enacted, one of the most pressing compliance issues concerned how “providing or putting its own employees at the disposition of the other party” should be construed.

To this end, the Mexican Labour Ministry issued a non-binding guideline suggesting that subcontracting does not necessarily refer to cases in which the service provider's employees are subject to the orders and instructions of the beneficiary of such services ‒ but, rather, to scenarios where the service provider's employees are physically working at the premises of the beneficiary of the services.

The workplace of the subcontracted (outsourced) employees has therefore become a key factor in interpreting the Subcontracting Reform, particularly with regard to those industries that inherently require services to be provided at the premises of the client (eg, construction, cleaning, maintenance, and sales promoters).

Certain service providers, especially in the construction and sales promotion industries, have refused to accept this interpretation. They argue that “providing or putting its own employees at the disposition of the other party” should instead depend precisely on the subordination of the service provider's employees to the beneficiary of such services, and not on the workplace of said employees. At the time of writing, there has been no further clarification on this matter from labour authorities.

Some other compliance issues that have emerged regarding the Subcontracting Reform are:

• the implications of sub-subcontracting of services, which is common in industries such as construction, where there is a main contractor in charge of the overall management of the project who must then subcontract specific tasks with different subcontractors; and
• the applicability of the reform's subcontracting provisions to vehicles such as trusts or in relationships between Mexican and foreign companies, where the lack of clarity in the law has generated a significant level of legal uncertainty.

According to the Ley Federal de Protección de Datos Personales en Posesión de los Particulares (Mexican Data Protection Law, or MDPL), data controllers have the following obligations:

• making available the corresponding and updated privacy notices;
• adopting mechanisms to comply with the execution of the data subject’s rights (Access, Rectification, Cancellation and Opposition or so-called ARCO rights);
• appointing a data privacy officer;
• implementing administrative, technical and physical security measures to protect personal data against damage, loss, alteration, destruction or unauthorised use, access or processing;
• developing a mandatory and enforceable privacy framework within the organisation; and
• when applicable, adopting clauses for personal data transfers or data processing.

Data controllers must establish and maintain administrative, technical, and physical security measures to protect personal data against damage, loss, alteration, destruction or unauthorised use, access, or processing. The data controllers shall implement at least the same level of security measures when handling information as those implemented by their owners. When adopting technological innovations, data controllers must consider the existing risks, the possible consequences for the data subjects, the sensitivity of the data and the technological innovation.

Transferring Data

Failure to comply with the MDPL provisions concerning data transfer may trigger:

• claims from data subjects; and
• investigations and administrative procedures conducted by the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI), which could lead to the imposition of administrative sanctions ranging from MXN9,622 to MXN30,790,400 per infringement.

Nonetheless, according to the MDPL, data controllers are allowed to make international (or national) data transfers with any person, as long as the following standards are met.

Consent

Individual consent must be obtained. (Please note that written consent is required for sensitive and financial data.) However, national or international data transfers do not require the individual’s consent where the exceptions provided by the MDPL apply.

Transparency/information

The privacy notice must contain at least the following information concerning data transfers before the data processing (or transfer) can occur:

• the third-party recipient of the personal data (the recipient can be indicated under a category such as service provider or business partner); and
• and the purposes of such transfers.

Purpose limitation

Data transfers are limited to the purposes indicated on the privacy notice of the data controller (ie, the data exporter).

Data transfer agreement

Transfers shall be agreed to via contractual clauses or other legal instruments providing, at least, the same obligations to which the controller transferring the personal data is subject to, as well as the conditions under which such data subject consented to the processing of their personal data.

Security measures

The appropriate security measures must be adopted. The MDPL provides that data controllers shall adopt administrative, physical and technical security measures to protect personal data against loss, theft, or unauthorised use. Security measures must consider the associated risk, the consequences that data subjects might suffer, the sensitivity of data and the technological development. In any case, the security measures adopted by data controllers must at least match those adopted by their owners for their own information.

The standard supplier customer model in Mexico is an arm’s-length structure in which:

• each party is independent;
• suppliers openly offer their services to other parties in the market; and
• customers are free to engage other suppliers at any time.

As per 2.1 New Legal and Regulatory Restrictions on Technology Transactions or Outsourcing, the agreements entered into to formalise the provision of specialised services must include the following requirements:

• purpose;
• term;
• the RFC of the beneficiary of the services for each of the contracts; and
• list of employees or other parties that will provide the specialised services or perform the specialised works on behalf of the beneficiary, indicating their:
1. name;
2. CURP;
3. social security number; and
4. base salary.

Even though alternative contract models are not standard, they are sometimes implemented in particular cases where specific synergies exist and where parties pursue long-term arrangements, large-volume commitments, and joint products and services development. The most common example of the former is partnerships.

“Informal” partnerships may be formed, in which suppliers and customers enter into agreements to work towards a common end goal, while maintaining a degree of independence. Likewise, there has also been an increase in “formal” partnerships, whereby suppliers and customers associate and incorporate jointly owned entities for the pursuit of a business opportunity that is separate from the rest of the participants’ activities.

If multiple jurisdictions are involved, it is common that the outsourcing agreements take the form of a master agreement that may provide a framework for local country agreements to be entered into between local affiliates.

In Mexico, digital transformation has not led to any material changes in the terms and provisions normally included in contracts. To date, it is uncommon to find special provisions for the use of sophisticated technological mechanisms. Certain authorities are quite reluctant to accept electronic means as mechanisms for formalising relationships, so the vast majority of companies in Mexico continue to opt to follow the classic form of contracts. Because of the way in which audits and inspections are carried out in Mexico, for example, companies opt to have this type of contract printed and require an autographic signature.

Nonetheless, the Mexican Labour Ministry and the tax and social security authorities have implemented electronic portals to make it easier for specialised service providers to:

• obtain their electronic records as specialised service providers;
• comply with administrative reporting obligations; and
• provide the required information on existing relationships to the authorities, as per the Subcontracting Reform.

Standard protections and remedies for customers in an outsourcing relationship include their ability to do one or more of the following should the supplier fail to comply with its obligations:

• retain/deduct payments to the supplier;
• terminate the agreement/relationship without liability; and
• ultimately, if the actions or omissions of the supplier have an objectively detrimental effect on the customer, seek payment of damages.

The grounds for terminating an outsourcing contract depend on the type of arrangement between the parties and the specific obligations agreed by them. It is customary that the outsourcing agreement can be terminated by either party giving prior notice to the other party, as long as the party that is terminating the contract has fully complied with their obligations.

However, if the supplier specifically engaged personnel for the provision of services to the customer, the latter is usually obliged to pay a termination fee equivalent to the statutory severance paid by the supplier to the employees it assigned to the customer in case the supplier cannot relocate such personnel to another customer.

Unless the parties involved expressly agree to be bound by the laws of a different jurisdiction, outsourcing agreements are considered to be civil arrangements in terms of Mexican legislation.

Direct and Indirect Losses

The Federal Civil Code (FCC) provides that should a party fail to comply with its obligations (in the case of an outsourcing arrangement, either to render the service or pay the consideration) or if it does not comply with them in the agreed terms, it may be liable for payment of the following to the affected party:

• the cost of the obligation it failed to comply with;
• the cost of the corresponding damages (daños), which are defined as the loss or impairment caused to the patrimony of the affected party by the lack of compliance with the corresponding obligation;
• indemnification for liquidated damages (perjuicios), which are defined as the loss of any profits that would have been made by the affected party had the corresponding obligation not been violated; and
• the payment of legal fees incurred by the affected party as a result of the lack of compliance with the corresponding obligation.

In practice, the affected party may have to demonstrate to the civil court that such damages and liquidated damages are actually an immediate and direct consequence of the lack of compliance with the corresponding obligation in order to claim payment. The payment of legal fees incurred by the affected party is regulated by law.

Parties may agree in the contract on specific amounts payable to the affected party should one party fail to comply with any of their obligations in order to avoid conflict regarding the determination and quantification of the damages and liquidated damages caused. In principle, the agreed sum may not exceed the legal standard interest, which is currently 9% of the cost of the corresponding obligation, unless the parties expressly renounce such protection. However, any penalty agreed by the parties in excess of the aforementioned standard penalty may be reduced should a judge consider such penalty to be clearly disproportionate and abusive.

Even though the FCC does not expressly refer to direct and indirect loss, the law does differentiate between the aforementioned damages and liquidated damages. On the one hand, damages can be considered equivalent to direct loss because they are defined as the loss or impairment caused to the affected party by the lack of compliance with the corresponding obligation.

On the other hand, liquidated damages can be considered equivalent to indirect loss because they are defined as the loss of any profits that would have been made by the affected party had the corresponding obligation not been violated.

Loss of Goodwill

Although the FCC regulates loss of profit and/or business through liquidated damages, which are defined as the loss of any profits that would have been made by the affected party had the corresponding obligation not been violated, this does not cover any loss of goodwill.

The affected party may seek indemnification regarding goodwill through damages, which are defined as the loss or impairment caused to the affected party by the lack of compliance with the corresponding obligation.

However, in practice it unusual for a civil court to determine indemnification relating to goodwill, owing to its subjective nature. In order for a judge to determine payment of damages for loss of goodwill, the affected party must objectively demonstrate that its reputation has suffered as an immediate and direct consequence of the lack of compliance with the corresponding obligation and objectively quantify such situation. This is a very complex thing to do.

The FCC does not contain specific provisions in connection with outsourcing arrangements; therefore, the general civil rules provided by the FCC apply to these contracts.

Mexican civil legislation generally allows parties to agree to any terms they are willing to, without setting forth implied terms. However, the FCC contains numerous provisions indicating the legal consequences of a civil arrangement in which the parties have not reached an express agreement on a particular issue.

The following are examples of these provisions.

• The obligation to render a service can be carried out by a third party, unless the parties expressly agree upon the supplier's obligation to conduct the corresponding services personally.
• If the parties have not agreed when payment must be made, the obligation of the customer to make any outstanding payments will be made effective when the supplier claims such.
• If the parties have not agreed to a different payment mechanism, the payment will be made to the address of the customer.
• The customer is entitled to suspend payment to the supplier should the latter not deliver corresponding documentation that proves receipt of payment.
• The legal standard interest will be payable as loss should either of the parties breach their obligations.
• The supplier has an obligation not to disclose any confidential information it obtains from the customer in terms of their relationship.
• The jurisdiction of Mexican legislation and courts shall apply in case of conflict.

Following the Subcontracting Reform, agreements formalising the provision of specialised services must include the following information:

• purpose;
• term;
• the RFC of the beneficiary of the services for each of the contracts; and
• list of employees or other parties that will provide the specialised services or perform the specialised works on behalf of the beneficiary, indicating their:
1. name;
2. CURP;
3. social security number; and
4. base salary.

The main protections included in outsourcing contracts come in the form of indemnification obligations, representations and warranties, and confidentiality and data security obligations. General legal terms also apply, including compliance with laws, limitations of liability, indemnities, and dispute resolution.

It is not common, but certain companies develop and implement a third-party service provider policy that addresses minimum cybersecurity practices of vendors. However, the implementation of this type of policy to best safeguard its information is currently at the discretion of the beneficiary of the services.

Owing to the particularities of this technology, the biggest difference in contract terms for cloud-based outsourcing concerns the protection of personal data and safeguarding the confidentiality of the information that is shared.

Pursuant to the FLL, the transfer of employees may occur through either of the following transfer mechanisms:

• employer substitution; or
• termination and rehire.

Each has its pros and cons, as well as its own requirements and considerations.

Employer Substitution

An employer substitution refers to the transfer of the employment relationship of certain employees from a substituted employer to a substitute employer.

In order to formalise an employer substitution, both the substituted and substitute employer shall notify the transferred employees of their transfer. (It is highly recommended that such notification is carried out through individualised written employer substitution notices.)

Furthermore, according to the FLL, assets relating to the business conducted by the transferred employees must be transferred to the substitute employer for an employer substitution to be valid. It should be noted that the FLL simply states that the “assets of the company or establishment” must be transferred to the substitute employer; however, it does not provide further details concerning this requirement.

Precedents and court criteria include the following additional requirements for an employer substitution to be valid.

• The workplace in which the transferred employees render services cannot be modified.
• The transfer should not result in any interruption to the work rendered by the transferred employees.

As an additional consequence of an employer substitution, the substitute employer is obliged to honour the transferred employees' current terms and conditions of employment that were previously agreed with the substituted employer (eg, position, salary, seniority, employment benefits and working schedule). In other words, the substitute employer may not negatively modify or diminish any term or condition of employment or benefits previously agreed between the transferred employees and the substituted employer.

The FLL establishes that the substituted employer remains jointly liable for any past employment liabilities for a period of six months following the date on which the employer substitution is notified.

Termination and Rehire

An alternative to employer substitution is for the previous employer to terminate the employment relationships with the relevant employees, following which they are then rehired by the new employer (with or without seniority recognition).

Employment termination with payment of severance

In order for this transfer mechanism to be implemented, the following shall occur:

• the current employment relationships of the transferred employees and the previous employer shall be terminated in exchange for the payment of statutory severance; and
• the new employer will be able to hire the transferred employees with a new compensation package and without recognising any previous seniority.

Transferred employees shall be entitled to payment of the following:

• any accrued and outstanding salaries, benefits and variable compensation as of the effective termination date;
• 90 days' worth of daily total compensation;
• 20 days' worth of daily total compensation per each year of services; and
• seniority premium equal to 12 days of base salary per each year of service, with a salary cap of twice the minimum wage.

(Daily total compensation consists of an employee’s daily base salary plus the daily proportion of any employment benefit and/or variable compensation paid to the employee as part of his/her compensation.)

If implemented correctly, this alternative means that:

• any previous employment and social security liabilities are cut off and not transferred to the new employer;
• the new employer may offer the transferred employees a new compensation package if such personnel agrees with the new offer; and
• the new employer is not obligated to acknowledge any previous seniority to the transferred employees.

This alternative is the most expensive mechanism for the transfer of employees, given that it triggers payment of statutory severance and also requires employees’ consent.

Employment termination without payment of severance and rehire with seniority recognition

The following must occur in order for this transfer mechanism to take place.

• The current employment relationships of the transferred employees and the previous employer are terminated in exchange for the payment of accrued salaries, benefits and any applicable variable compensation only. No statutory severance payment is made.
• The new employer then hires the transferred employees and recognises their seniority for all legal purposes and effects (eg, payment of benefits and severance where applicable).

The new employer shall hire transferred employees with a compensation package that is equal or comparable to the one offered by the previous employer.

This alternative does not trigger payment of statutory severance (only of accrued salaries and benefits) and, if implemented correctly, cuts off any previous employment and social security liabilities without transferring them to the new employer.

In principle, union consultation is not required for outsourcing. Having said that, it is important to note that recent changes in regulation relating to freedom of association may impact outsourcing activities conducted by companies.

In November 2021, the new registration authority for labour matters launched and its arrival brought into effect a new process of either:

• entering into, reviewing, terminating or modifying collective bargaining agreements (CBAs); or
• implementing strike actions.

As a result of these changes, among other things:

• employers are forbidden from interfering in union matters of their employees in any way;
• unions must demonstrate that they represent a company's employees through a voting process among union personnel, which is monitored by labour authorities; and
• employees must give their consent to the terms of CBAs through a similar voting process.

Although there is no legal requirement for companies to consult with the unions that represent their employees regarding any outsourcing activities, in practice unions may play a more active role in these matters whenever unions or unionised employees feel that the rights of employees are being affected (ie, jobs losses are due to outsourcing to third parties).

The most common mechanism for the transfer of employees is the employer substitution because it does not require the consent of employees and does not generate costs at the time of the transfer. However, as mentioned in 5.1 Rules Governing Employee Transfers, the following requirements must be fulfilled.

• Both the substituted and substitute employer must notify the transferred employees of their transfer in order to formalise the employer substitution.
• Assets relating to the business conducted by the transferred employees must be transferred to the substitute employer.
• The workplace in which the transferred employees render services cannot be modified.
• The transfer must not result in any interruption to the work rendered by the transferred employees.

As consequence of an employer substitution, the substitute employer is obliged to honour the transferred employees' current terms and conditions of employment that were previously agreed with the substituted employer (eg, position, salary, seniority, employment benefits and working schedule).

The FLL establishes that the substituted employer remains jointly liable for any past employment liabilities for a period of six months following the date on which the employer substitution is notified.

On 11 January 2021, the Mexican government published a decree in the Mexican Official Federal Gazette that amended the FLL regarding "remote work". 

Employees under a remote work modality are those who provide their personal, remunerated and subordinated services in a place other than the facilities of the employer and use technologies to provide their services. The provisions established in the amendment to the FLL are enforceable when employees work more than 40% of their time from their personal domicile or in a domicile chosen by the employee. Work done occasionally or sporadically will not be considered remote work.

In addition to the requirements established in the FLL, individual employment agreements entered with employees who provide their services under the remote work scheme must include:

• a brief description of the nature and characteristics of services;
• equipment and work tools delivered to the employees under the remote work scheme, including those related to health and safety obligations;
• amount that the employer will pay to employees under the remote work modality to cover telecommunications services (internet, electricity, etc) that are necessary to provide their personal, remunerated and subordinated services; and
• the mechanisms of contact and supervision between the parties, as well as the duration and distribution of schedules, provided that they do not exceed the legal maximums.

A description of the remote work provisions must be included in the CBAs and the company shall ensure the necessary measures to guarantee that the employees under the remote work modality are aware of the procedures for freedom of association and collective bargaining.

If there is no CBA, it will be necessary to include a description of the remote work provisions in the internal workplace regulations (Reglamento Interior de Trabajo) and establish mechanisms that guarantee communication with employees who perform their work under this scheme.

In addition to the employer obligations set forth in the FLL, employers will have the following special obligations to:

• provide, install and maintain the necessary equipment for the remote work (eg, computer equipment, printers and ergonomic chairs);
• assume the costs derived from the remote work scheme, including (if applicable) the payment of telecommunications services and the proportional part of electricity;
• keep a record of the equipment and work tools provided to employees under the remote work scheme, in compliance with the provisions regarding occupational health and safety established by the Labour Ministry;
• implement mechanisms to preserve the security of the information and data used by the employees under the remote work scheme;
• respect the right of disconnection of employees under the remote work modality at the end of the working schedule; and
• establish the necessary training and counselling mechanisms to guarantee the adaptation, learning and adequate use of information technologies by employees under the remote work scheme, with special emphasis on those who change from a face-to-face to a remote work modality.

Some special obligations are foreseen for employees under the remote work scheme to ensure the effective rendering of their services.

The change of scheme from in-person to remote work must be voluntary and established in writing, except in cases of force majeure. In any case, when there is a change in the scheme of remote work, the parties will have the right of reversibility to the face-to-face modality.

The employer must promote the balance of the employment relationship of employees under the remote work scheme, so that they can have an equal treatment in terms of remuneration, training, education, social security and access to better employment opportunities, among other conditions.

The mechanisms and technology used to supervise employees under the remote work scheme should be:

• proportional to its objective;
• guarantee the right to privacy; and
• respect the applicable legal framework in terms of personal data protection.

Video cameras and microphones may only be used in extraordinary circumstances or when the nature of the functions performed by the employees requires it.

The special health and safety conditions for remote work shall be established by the Labour Ministry in a Mexican Official Standard (Norma Oficial Mexicana), which must consider ergonomic, psychosocial and other risk factors that could have an adverse effect on the life, physical integrity or health of employees. At the time of writing, no such Mexican Official Standard has been issued.

The Labour Ministry auxiliaries have the following special faculties and duties to:

• verify that employers keep a record of the equipment and work tools delivered to employees under the remote work modality, in compliance with occupational health and safety obligations;
• guarantee that wages are not lower than those paid to employees under a face-to-face scheme with the same or similar functions;
• verify due compliance with the special obligations established in the FLL.