On March 7, 2024, Mexico's Ministry of Labor and Social Welfare ("Secretaría del Trabajo y Previsión Social" or "STPS") published a Gender-Focused Protocol for Labor Inspections, designed as a tool for labor inspectors to assess employers' compliance with the gender equality laws. The new protocol instructs labor inspectors to assess compliance by requesting information either on documents and/or through a specific questionnaire when interviewing employees to elicit statements that might signal an employer's noncompliance with the gender equality laws. As labor inspectors can interview employees during an inspection, an innocuous statement from any employee can spark an administrative nightmare for employers that ultimately could end in steep penalties.
To provide context, in an effort to enforce compliance with the labor laws, the STPS aims to inspect every workplace in Mexico at least once per year. There are two main types of inspections: ordinary and extraordinary. The inspections are focused on assessing the workplace with regards to three main areas: general working conditions, safety and hygiene, and development and training. For these inspections, the labor inspector must provide 24-hours' notice before the inspection. For extraordinary inspections, however, the STPS does not have to give notice if there is any cause, which could include a worker's complaint about non-compliance with the law or an occupational hazard. For an extraordinary inspection, the inspector can knock on the door and the employer must open it and let the STPS carry out the inspection. The new Gender-Focused Protocol applies to both ordinary and extraordinary inspections.
As part of the inspection, inspectors must interview up to 15 employees (where the employer has over 105 employees) and are now required to implement the new Gender-Focused Protocol questionnaire, found in "Annex II" of the protocol. At a minimum, they must begin each interview by asking if (1) the employee or any of their coworkers have suffered discrimination, harassment, sexual harassment or any other similar practice in the workplace; and (2) if any of the women have been asked to furnish a certificate of non-pregnancy to be hired or promoted. If the answer is "yes" to either of these questions, then the inspector must investigate further. If the answer is "no," the inspector may proceed with a normal interview. As an example, if an employee states that she believes one of her coworkers has suffered harassment in the workplace, the labor inspector must ask all other questions contained in Annex II and conduct a thorough investigation. Note, during the interviews, neither the employer nor the employer's representative may be present. Only the worker and the inspector can be present.
While in the past, labor inspectors merely checked whether the employer had implemented Internal Work Rules ("Reglamento Interior de Trabajo" or "RIT") and anti-discrimination policies, inspectors are now instructed to conduct an exhaustive review of the company's files and practices to assess whether both male and female employees are experiencing gender equality with regards to conditions and benefits in employment. Therefore, labor inspectors must read the content of the RIT to confirm that it promotes gender equality. The inspectors must also review the company's day-to-day implementation of the "Protocol to prevent, address and eradicate workplace violence," as well as the company's practices related to its obligations regarding maternity and paternity rights and employees who are pregnant or breastfeeding. The labor inspectors must also confirm that the RIT and other required protocols were properly ratified by the requisite Joint Commission of Employer-Employee Representatives and registered them with the competent labor authorities, where applicable.
Depending on the underlying violation, fines can range from $27,142.50 to $542,850.00 Mexican pesos for each affected worker. This means that if the worksite has 50 workers, the possible fines are significant because the STPS can multiply the fine by those 50 employees based on the rationale that violations of the gender equality laws affect men and women alike.
The new Protocol took effect on March 8, 2024. Although the STPS has taken a while to adjust all its internal systems to get this new protocol up and running, we think it is a matter of a few weeks before labor inspectors begin to follow the protocol during labor inspections.
Takeaways
Employers in Mexico should conduct an exhaustive audit of their company files, policies and practices to ensure that they are complying with all laws promoting gender equality. The audit should include a review of employment contracts, termination documents, and policies to prevent discrimination and harassment. Employers should take steps to cure any deficiencies with regards to the proper ratification of the company's RIT and protocols and their registry with the competent authorities. As a simple statement from an employee during the inspection can trigger a sweeping examination of the company by the government, which can lead to steep fines, employers have a lot to gain from proactively preparing for an eventual inspection of their workplace.
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