WARNING maid and mexican law
Posted by mary on November 26, 2011, 1:33 pm
GETTING SUED: This post concerns all hired help in Mexico, full time, part time, seasonal help, etc., that we Gringos hire. The following is what happened to me this week and has happened to several of others in the recent past. More suits are filed right now but not settled, this is a look at what could happen and the potential cost to you. |
I learned through this experience things I did not know about Mexican law and the way it affects gringos. The following was my responsibility to know and practice as I hired workers here in Mexico. I am doing this post as it is something all of us need to know as we hire maids and the workers we use and need to become aware of what the total cost may be to us. It is pretty harsh when you feel trapped and blindsided.
I was served with papers to go to Autlan to court, the original papers were served at night and I was to be there the next day which did not give any time to prepare for anything or get the help needed to testify. The papers served to me did not tell me what the issue (or issues) were that I was being called to court for nor the amount that was being requested. Only that I HAD to show up. It did include the name of the person making the complaint.
I spent Thanksgiving Day in Autlan and the following is what I have learned that the Mexican Law says on the workers we hire. There were two others that accompanied me there, a business owner in town, as well as an interrupter – they were both witnesses of “what I thought” I might be sued for. So the following was quite a shock for all of us
PAPERS THAT WERE SERVED: there can be more than one complaint that you are showing up for in court – you don’t know as the papers do not identify anything, so this first one was a shock. There were a total of 2 suits against me although I did not know that or what they were.
1. If you hire a maid, and when she is no longer employed by you, it does not matter the reason for her/him leaving -- you owe severance pay to them.
2. In addition to severance pay there were three other levels of money owed her for the time she was working for me. So there was a total of 4 items they added up into the Severance pay
3. She did not have to prove the length of time she worked for me nor the amount of hours worked. They took her word even though I disagreed AND my witness could verify her hours worked the last 3 months.
4. The employee, gardener, maid – etc., has the right to this Severance pay even if they:
a. Stole from you and you caught them, and could prove it, so you fired them – you owe severance for the total amount of time employed
b. The work ended and you had no more work.
c. They quit on their own.
d. They choose to no longer be in the business (maid/gardener etc) and were going onto something else (this is what my maid did – she had opened a store and her husband wanted her to run it and no longer clean houses.)
e. One day they do not show up to work and never come back with no notice – severance is still due.
f. They don’t come to work and no notice and then come back weeks later and you have hired someone else – severance is due.
g. There is no exception – if they have worked for you for 1 day or 15 years you owe them severance.
h. If they have taken time off from work, then wanted to come back you still owe as if they were still there. (This is what happened to me, my maid kept saying she was done and wanted to run her store; then would come back and want to work again for me – so I owed for all the time she did not work) This does not seem correct but the Arbitrator (that is what I will call the person hearing the case – not sure what it was) said I owed. They took what she said she made and times that by as many years as she said she had worked for me.
THIS WAS THE SECOND SUIT SHE HAD AGAINST ME:
5. Part Time, full time, seasonal help – etc ACCIDENTS:
a. If you tell them that they CANNOT do something that is not safe and they do it anyway and get hurt you are responsible. In my case they did not have to even prove they were hurt. She had been out walking/ running and riding a bike and I had a witness with me who had seen her. They took her “word” that she was hurt.
b. If you have safety equipment for them to use and tell them that they cannot do the work without it – if they go ahead and do the work without the safety equipment provided – you are responsible. And in my case it was for whatever she was asking for financially. She had been told “never” to climb on the furniture and I had 3 ladders throughout for her use and easy access. She choose not to use the ladder, climbed on the bar stool, with oil all over it, and fell off.
c. I was told by the Arbitrator that even if I had a signed contract it would not matter she still would be able to make me responsible. I was told it is Mexican Law. Again, I did not go to full court with an attorney so this was not challenged.
d. We asked: If we have a worker come in and do a one time job and he hurts himself due to his own negligence are we responsible and the answer was YES.
Even though there was evidence that there had been a previous injury with a scar in the area she said was damaged, and I had witness who were there to testify that she was walking and riding a bike normally on the leg – it did not matter.
I was trapped, if I did not settle it would go to the next step and I would have to hire an attorney and go back to Autlan. She did not care; she was willing to go to court. Since the law is on her side I would only loose – this is Mexican law. I might have gotten the amount of money decreased but with an attorney would I really win in the end? I did not think so.
She also set a price as to how much she would take to settle right then. When I agreed to pay it she increased the amount and she was allowed to do that. Either I paid that day or the paperwork would be done to take us onto court. When I questioned the arbitrator on her increase I was told she had the right to do it.
It is not pretty and believe me it is not cheap what we had to pay and what you have to go through. In the La Manz area we pay our maids the highest wage for maid service in Mexico and still we have to pay more. Taking into consideration what I would have to pay when a maid leaves (and no, not all maids will do this – but I also never thought this one would do it either) it makes it very expensive. She does not even look at it as not being right since it is the law that we owe it to them.
This was an absolute shock to all of us there – I had been good to my maid and supported her through tough times both emotionally and financially. Even though she was given extra money other than her hourly wage that did not count towards the Severance pay.
I could not figure out why she was doing this and when I asked why she was doing this she said that she had went to Autlan with _____ and that person was making a case against someone and told her she could do the same, that it was the Mexican Law. This is a person all of us know that gave her this advice.
I am posting this as I am not the first person that this has happened to, there are several who have already settled, and there is another suit right now being processed and is in the 2nd stage with attorneys involved. That maid chose to no longer work for the person so she quit and they were still on good terms, as I was with my maid. The person is now being sued for many years of severance pay.
If the arbitrator had read the law wrong or misinformed me then I could fight it – but the cost of attorneys and courts, not to mention time and distance to Autlan, far outweigh any ability to proceed to find out what is really true. I am reporting only what I experience and was told in Autlan, again it did not go to full court.
If I heard this story I would have looked at it that it could happen to someone else but it would never happen to me. Don’t be too sure. My thoughts are that it will spread like wild fire as it gets through the Mexican community that they are entitled to this money. In my case she got enough to take 1 ½ to 2 years off without working.
I hope this is of help to you and as we move on just be aware. It is my responsibility to know the Mexican Law if I am going to live here and in this case I did not research and check out the labor laws – which was my mistake.
Mary Casa Shanti
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