By: Attorneys José Díaz, Eumir Quintero & José Luis Quezada
June 2nd, 2019 will be an election day for Baja California: its people will vote to select their governor, local congressmen and mayors. By legal disposition, it is decreed that this date must be a mandatory rest day, since various dispositions of the Federal Labor Law (LFT) point it out.
The LFT on its section 74, establishes the following:
Section 74. The mandatory rest days are:
IX. The one determined by federal and local electoral laws, in the case of ordinary elections, to perform the electoral day.LFT (2019)
Also, on section 73, regarding the rendering of services on those mandatory rest days, the following is established:
Section 73. The employees are not obliged to render their services on mandatory rest days. If this disposition is violated, the employer must pay the employee, regardless of the correspondent wage for the rest, a double wage for the rendered services.LFT (2019)
The selected date that local authorities determined for the elections is June 2nd of the current year, hence, it is declared as a “Mandatory Rest” day. In this sense, for the employees that will work on such day, their wages must be paid just like mandatory rest days or “festive days” as they are most commonly known.
For the specific case of employees whose work shift starts on the previous day and finishes on election day (mandatory rest day, for example the ones with nocturnal night shift), or the ones whose work shift starts on election day and finishes the posterior day, every particular case must be reviewed and analyzed specifically.
However, if the work shift matches completely with the timetable in which the election booths are open (this is between 08:00 and 18:00 hours) the employers must ensure that their employees have a prudent and necessary amount of time to cast their votes.
Section 132. The obligations of the employers are:
Subsection IX. Concede the employees the necessary amount of time to cast their votes on the popular elections and for the compliance of jury, electoral and census services referred on Section 5 of the Mexican Constitution, when those activities must be complied to in between their work shifts;LFT (2019)
Every employer is obliged to let all their employees who work on Sunday, the electoral day, to go to vote without discounting any amount of money from their wages since it is a remunerated permit. The employees whose work shift on the electoral day does not match the timetable in which the election booths are open, will not have right for the remunerated permit. These permits must be regulated by mutual agreement, according to the matching time between the work shift and the voting time, as well as the distance and means of transport to be used.
The company must also permit to attend their civic duties to the employees that were selected to be election booth staff members. An employee that works on Sunday/election day, may be absent if it was chosen to be an electoral staff member. On this specific case, the employer must concede the day with salary enjoyment. The LFT also establishes that if the employee has the obligation to work this June 2, it must receive triple their wage.
For everyone to exercise their right to vote, employees and employers must agree to define staggered schedules to go voting. The employer, in case of not being able to justify the causes on why it did not allow the employees to leave, would be in breach of the Law. This implies a possible economic sanction ranging between 50 and 1,500 minimum wages, according to article 994 fraction III of the Federal Labor Law.
The purpose of this newsletter is to provide an informative summary of the provisions related to the electoral process and its effects on companies in labor matters, which may be updated in a timely manner.
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