CCN MEXICO REPORT

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Issue #
61
 – 
January 2009

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Jurisprudence on Employer Liability in Labor Matters

January 17, 2009

In a private session on November 19, 2008, the Second Chamber of the Mexican Supreme Court issued case decision number 2a./J.188/2008 under thecaption “Employer Liability in Labor Matters. If the Exclusive or Principal Beneficiary of Labor Services Rejects Responsibility Fully and Plainly, theBurden of Proof Shall Fall on Such Party” so that in determining whether employer liability exists in a labor lawsuit filed by an employee, in which theplaintiff alleges the exclusive or principal beneficiary of his or her services is an individual or entity other than the parties that signed the laboragreement, and if the defendant employer rejects such liability plainly and fully, the burden of truth falls on the plaintiff. This is because the negativeresponse of the defendant provides no confirmation whatsoever of the employment relationship and it is legally improper to impose on a co-defendantthe obligation of proving a negative fact that such party did not receive the benefit of the services in question. Such legal principle is in conformity witharticle 804 of the Federal Labor Law (Ley Federal del Trabajo) which states the principle employer has the obligation of maintaining documents relatedto the labor relationship and work condition, so that the supposed beneficiary of the services would not have any evidence from which it could beinferred that the employee was providing his or her services. The case decision was sent for publication in the Judicial Weekly of the Federation onNovember 24, 2008.