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Special Work Shifts

September 19, 2014
Special Work Shifts

As a continuation to our recent article relating to work shifts and overtime, on this occasion we will speak to thecriteria issued by the Supreme Court of Justice of the Nation (SCJN) and by the Circuit Collegiate Courts, whichgive companies the opportunity to manage alternatives in work shifts, and criteria that covers a gap that is notcontemplated in the Federal Labor Law (FLL). In Mexico, it is not common for companies to have work shiftsthat are different from those established by the FLL. Therefore, most companies utilize the traditional schedule ofday, night or mixed shifts. However, some companies are trying to introduce a new work schedule known as aspecial shift. Although it is not defined in the FLL, it has been permitted and, consequently defined by theauthorities as that which exceeds the daily work shift without exceeding the maximum weekly work shift, whichenables their employees to rest one or more days per week. Recall that article 59 of the FLL establishes that theemployee and employer will establish the duration of the work shift, without such exceeding the legal limits, inorder to allow the employees to rest on Saturday or in any equivalent manner. For such purposes, the SCJN hasissued various criteria establishing that work shifts which exceeds the maximum set forth in the FLL are legalwhen such shifts allow the employee to rest on Saturday (or a second day of the week to rest), without exceedingthe weekly maximum.Some companies have established a list of work shifts, so that all of the employees may work all shifts andthereby be able to enjoy the same benefits or duties that each shift offers, because not doing so could causediscontent among employees working different shifts. In any case, in the management and design of the so called“special” work shifts, the employer must be very careful so that the total workweek does not exceed themaximum permitted by the FLL. Otherwise, overtime will be generated and such will have to be paid inaccordance with the rules specified in previous articles. Also, if overtime is worked permanently by theemployees, it could be considered an integral part of the employees’ base salary for determining such base salaryfor purposes of the payment of employer premiums to the Mexican Social Security Institute (IMSS), which couldadd up to large amounts of money for the employer. In conclusion, companies may have different work shifts, aslong as the total number of hours in such shifts does not exceed the maximum established by the FLL, which is48 hours for the day shift, 42 hours for the night shift and 45 hours for the mixed shift.

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