MEXICO Law and Practice Contributed by: Mauricio Moreno Rey, Anahí Serrano, Erick Sastré and Karla Fajardo, Cannizzo, Ortiz y Asociados, S.C.
The labour law clearly provides that vacations cannot be compensated with remuneration. Employees are entitled to a vacation bonus ( prima vacacional ) of no less than 25% of the wages payable during the vaca - tion period. Leave Pursuant to the Federal Labour Law, women are enti- tled to the following types of leave. • A six-week paid leave before and six weeks after childbirth: At the express request of the employee, with the prior written authorisation of the physician of the corresponding social security institution or, if applicable, of the health service provided by the employer, taking into account the opinion of the employer and the nature of the work performed, up to four of the six weeks of leave prior to childbirth may be transferred to after childbirth. This period may be increased up to eight weeks after the childbirth, upon presentation of the corresponding medical certificate, in the event that the child was born with any type of disability or requires hospital medical care. • In case of adoption of an infant, the woman shall enjoy a six-week paid leave following the day on which she receives the child. For male employees, the law only sets forth that the employer must grant them paid paternity leave of five working days for the birth of their children and likewise in the case of the adoption of an infant. With respect to absences due to illness, Mexican labour law distinguishes between non-work-related illnesses, which are generally covered by the Mexican Social Security Institute ( Instituto Mexicano del Seg - uro Social ), and those derived from an occupational accident or occupational illness, which are covered by the employer. In the chapter of the Federal Labour Law called “Occupational Risks” ( Riesgos de Trabajo ) it is clearly set forth what is to be understood by occu - pational accident and by occupational illness, namely, an occupational accident is any organic injury or func - tional disturbance, whether immediate or subsequent, or death or disappearance derived from a delinquent act, suddenly produced in the course of or in connec - tion with work, whatever the place and time in which
the work is performed (including accidents that occur when the employee is travelling directly from his/her home to the workplace and vice versa), whereas an occupational illness is any pathological condition resulting from the action over a longer period of time of a cause having its origin in the work or in the envi - ronment in which the employee must render his/her services. Confidentiality and Non-Disparagement Requirements The Federal Labour Law does not expressly regulate the confidentiality obligations that an employee must comply with before his/her employer; these are usu - ally included in the labour agreements between the parties. In this type of agreement, it is usually agreed that the confidentiality obligation of the employee will last for a certain term after the termination of his/her employment relationship with the employer. However, the employee’s obligation of confidentiality towards the employer might be interpreted as includ - ed in Article 47 of the Federal Labour Law, which pro - vides the employer the right to terminate the employ - ment relationship without liability, among others, if the employee commits, during his/her work, any breach of probity or honesty against the employer, his/her relatives or the management or administrative person - nel of the company or establishment, or against the employer’s customers and suppliers, as well as if the employee reveals trade secrets or discloses matters of a confidential nature, to the detriment of the com - pany, or similar acts. In addition, the Federal Law for the Protection of Industrial Property ( Ley Federal de Protección a la Propiedad Industrial ) defines as industrial secrets any information of industrial or commercial application which is kept confidential by the person exercising legal control over it, and implies obtaining or main - taining a competitive or economic advantage over third parties in the performance of economic activi - ties and with respect to which it has adopted suffi - cient means or systems to preserve its confidentiality and restricted access. Such law could be applied to employees who misappropriate any industrial secret or intellectual property of their employer. Misappro - priation is understood as the acquisition, use or dis -
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