Employment

STPS: Overtime = Labor Exploitation

On June 7, 2024, an amendment to the General Law to Prevent, Punish and Eradicate Crimes in the Matter of Trafficking in Persons and for the Protection and Assistance to the Victims of these Crimes (hereinafter the «Law on Trafficking in Persons») was published in the Official Gazette of the Federation, which is a regulation of Article 73 section XXI of the Political Constitution of the United States of Mexico. This article of the Constitution establishes the power of Congress to enact laws establishing the criminal offences and their penalties in the areas of kidnapping, enforced disappearance, trafficking in persons, torture and other cruel, inhuman or degrading treatment or punishment.

It is important to distinguish between the constitutional origin of the Law on Trafficking in Persons and that of the Federal Labor Law («LFT»), since the latter derives from the power of Congress established in Article 73, section X of the Constitution, to issue laws regulating Article 123 of the Magna Carta. That is, both laws of application throughout the country and of public interest, have a different origin and protect human rights.

The above is relevant because in the decree that reforms the Law on Trafficking in Persons, it modifies Article 21 that punishes with a penalty of 3 to 10 years in prison and a fine of 5 thousand to 50 thousand days, anyone who exploits one or more people for work. The same provision defines what should be understood as «labour exploitation» containing the following elements:

– To obtain, directly or indirectly, an unjustifiable benefit, economic or otherwise;
– That the benefit obtained is illicit;
-That it is someone else’s work; and
– That a person is subjected to practices that violate his or her dignity, such as:
– Dangerous or unhealthy conditions, without the necessary protections according to labor legislation or existing standards for the development of an activity or industry;

This last point, added in the decree published on June 7, 2024, could be interpreted as the possibility of classifying as a crime, when an employer requires its workers to work in excess of the working hours established in the LFT. However, in view of the origin and purposes of both the LFT and the Law on Trafficking in Persons, the latter establishes the criminal type in cases of «labor exploitation», when the elements described above that the legislation itself establishes are present. In other words, the labor relationship regulated by the LFT, where limits and sanctions are established for exceeding the maximum working hours, should not be confused with labor exploitation, where there must be an unjustifiable benefit, obtained illegally, through the work of others, where the dignity of people is violated.

Similarly, it is important to note that Article 10 of the Law on Trafficking in Persons defines the crime of trafficking in persons as malicious actions that seek to recruit, engage, transport, transfer, retain, deliver, receive or harbor another person in order to exploit them. The same precept states that exploitation shall be understood as labor exploitation in terms of Article 21 described above, reinforcing a possible interpretation that the Law on Trafficking in Persons does not intend to criminalize labor relations in Mexico, but to protect and eradicate other types of illegal, inhuman, and degrading practices.