MEXICO Law and Practice Contributed by: José Luis Diaz Badial, Jose Luis Diaz Castañeda and Mario Ivan Peña Padilla, Martinez y de Labra Abogados
1. Opening an HR Internal Investigation 1.1 Circumstances Internal HR investigations are usually initiated in response to complaints or suspicions of serious irregularities, such as harassment, discrimination, vio - lence, violations of company policies or regulations, or other infringements of the law, as well as matters relating to crimes or labour disputes. In such cases, it may be necessary to conduct a for - mal process to gather facts and evidence in order to determine whether misconduct has occurred and what corrective measures should be taken. 1.2 Bases The legal basis for conducting an HR internal inves - tigation in Mexico is mainly based on the Federal Labour Law ( Ley Federal del Trabajo LFT), the Fed - eral Law on the Protection of Personal Data Held by Private Parties ( Ley Federal de Protección de Datos Personales en Posesión de los Particulares ), and the provisions established in each company’s Internal Work Regulations ( Reglamento Interior de Trabajo ). In addition, where applicable, the collective bargaining agreements, internal protocols, and/or the company’s Code of Ethics can serve as the guide for this kind of procedure. 1.3 Communication Channels Although the Federal Labour Law in Mexico does not require a specific or unique “communication channel”, employers are legally obliged to establish and com - municate clear and accessible procedures for employ - ees to raise concerns relating to safety, occupational health and psychosocial risk factors. 1.4 Responsibility In Mexico, there is no single rule dictating who should conduct an internal HR investigation. The decision depends on the severity of the situation and can be made by the HR department, the compliance or audit department, or an in-house or external legal advisor. In serious cases, the appointment of an external law - yer is recommended to avoid conflicts of interest. In less complex cases, an in-house lawyer may be more
efficient, although this could also create a conflict of interest. 1.5 Obligation to Carry Out an HR Internal Investigation There are specific circumstances that make an HR investigation mandatory. This is primarily the case when there are allegations involving potentially seri - ous legal violations or significant risks to the company. Mandatory internal investigations are most commonly required in situations involving sexual and/or work - place harassment and discrimination, fraud, bribery or corruption, workplace violence, serious regulatory non-compliance and breaches of confidential infor - mation. 1.6 Prohibition on Carrying Out an HR Internal Investigation There are several circumstances in which an internal HR investigation could be postponed or suspended, or not carried out at all (either temporarily or perma - nently). This is primarily to avoid interfering with exter - nal legal processes, or when conflicts of interest exist. 1.7 Other Cases In the absence of a specific legal obligation or prohibi - tion, the employer will decide to conduct an internal HR investigation based on a risk assessment, the seri - ousness of the matter in question, the need to protect the company’s organisational culture and reputation, and whether there are indications of possible viola - tions of internal policies or codes of ethics. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent The complainant and the accused have the right to be informed of the opening of an internal HR investigation as part of a fair and transparent process. There are no specific legal deadlines for internal inves - tigations in the LFT, however, if the company has a protocol for handling HR investigations, this must be followed. Companies must act with due diligence and resolve the situation within a reasonable timeframe.
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