MEXICO Law and Practice Contributed by: Mauricio Moreno Rey, Anahí Serrano, Erick Sastré and Karla Fajardo, Cannizzo, Ortiz y Asociados, S.C.
duly limited as to time, territory, subject matter and persons. 2.2 Non-Solicits Non-solicitation clauses are not explicitly addressed under Mexican labour law; however, they can be legal - ly agreed between the parties in employment agree - ments or in separate non-solicitation agreements. The ordinary consequence of breaching a non-solicitation clause is the obligation to compensate or indemnify the affected party. Regarding non-solicitation obliga - tions, it is important to keep in mind that in Mexico the protection of damages might be limited, contra - ry to what happens in other countries. In Mexico, it might be difficult to prove the liability derived from a non-solicitation violation and the specific damages derived from this violation. Even when the violation and damages are proved, Mexican courts usually do not impose exemplary penalties or remedies as hap - pens in other jurisdictions. Given the difficulty of evidencing before the judicial authority a causal relationship between the conduct performed – ie, the breach of a non-solicitation obli - gation, and the damages suffered by the affected party – it is common to include in the non-solicitation agreement stipulations obliging the breaching party to pay a certain amount in the event of breach – ie, pre-quantified damages. The enforceability of this type of non-solicitation obli - gation, as well as non-compete obligations, may be challenged for their alleged unconstitutionality, since they may be considered as violating Article 5 of the Mexican Constitution, which states that no person may be prevented from performing their work of choice, provided that it is lawful, and such right may only be banned by judicial resolution. 3. Data Privacy 3.1 Data Privacy Law and Employment In Mexico, there are different personal data protection laws whose application depends on the data subject being regulated. The private sector is regulated by the Federal Law for the Protection of Personal Data in Possession of Private Parties ( Ley Federal de Pro-
tección de Datos Personales en Posesión de Particu - lares ). By virtue of the above-mentioned law, those persons processing data have the obligation to protect the personal data they process, to respect the principles set forth in the law, namely legality, consent, informa - tion, quality, purpose, loyalty and proportionality, and to respect the right of the individuals whose data is being processed to informational self-determination, as well as to guarantee the exercise of their rights of access, rectification, cancellation and opposition to the processing of their personal data. It is important to point out that in addition to the obli - gations towards employees with respect to the pro - tection of their personal data arising from the above- mentioned law, the employer also has the obligation to protect personal data with respect to other data subjects, such as prospective employees, clients, suppliers, partners, shareholders, etc. 4. Foreign Workers 4.1 Limitations on Foreign Workers In terms of Mexican labour law, except for directors, administrators and general managers: • in any enterprise or establishment, the employer must employ at least 90% Mexican employees; • in the categories of technicians and profession - als, the employees must all be Mexicans, unless there are not enough Mexicans who possess a given specialism, in which case the employer may temporarily employ foreign employees, in a pro - portion not exceeding 10% of those engaged in that specialism; in any case, the employer and the foreign employees will have the joint obligation to train Mexican employees in the relevant specialism; and • medical practitioners who work in the service of an enterprise must be Mexican. 4.2 Registration Requirements for Foreign Workers In Mexico, in order to hire foreign employees, an employer must obtain, before the office of the National
363 CHAMBERS.COM
Powered by FlippingBook