January 10, 2013

Labor Law – Analysis of Mandatory Days of Rest

By Pablo Sáenz

Article 74 of the Federal Labor Law, amended on January 17, 2006, establishes mandatory days of rest as those days of rest paid to employees allowing them to attend to their personal, family, civic, political or religious obligations. Despite its publication over six years ago, this provision continues to generate confusion; therefore, this article will attempt to clarify various aspects of such. Mandatory days of rest are currently the following: (i) January 1, so that the employee will not have to work on the day after the end of year celebration; (ii) the first Monday in February, in commemoration of February 5, the anniversary date of the Mexican Constitution (this is one of the mandatory days of rest modified with the reform, given that this day was previously given to employees on the day of the week on which such date fell); (iii) the third Monday in March, in commemoration of March 21, the birthday of Benito Juarez, past president of Mexico (this is another mandatory day of rest that was modified with the reform, given that this day was previously given to employees on the day of the week on which such date fell); (iv) May 1, given to employees in commemoration of Labor Day; (v) September 16, given to employees in commemoration of Mexican Independence Day; (vi) the third Monday in November in commemoration of November 20, celebrating the Mexican Revolution (this is the last of the mandatory days of rest modified with the reform, given that this day was previously given to employees on the day of the week on which such date fell); (vii) December 25, given in commemoration of Christmas; (viii) December 1, every six years, in accordance with the change in the presidency; (ix) those days determined by local and federal voting laws in the event of regular and special elections. Another objective of the reform of Article 74 of the Federal Labor Law was the creation of long weekends in February, March and November, so that employees could enjoy their weekly days of rest and the mandatory day of rest in a continuous manner and in order to prevent employee productivity from being interrupted or reduced as a result of having a mandatory day of rest in the middle of the work week. It is important to note that in addition to the mandatory days of rest established in the Federal Labor Law, employers may establish additional days of rest as a benefit to their employees. Consequently, there are employers that grant their employees Thursday, Friday and Saturday of Holy Week as mandatory days of rest, in addition to September 15, October 12, November 1 and 2, and December 24 and 31. If, as a result of the nature of the operations carried out by the employer, such employer requires employees to work on mandatory days of rest, the employer must reach an agreement with the employees as to who will work on such mandatory days of rest. In the event that such an agreement cannot be reached, the employer may present this conflict before the labor board so that such authority may determine which employees must work on these days. Employees required to work on a mandatory day of rest will be entitled to payment of double their wages for their service on such mandatory day of rest, in addition to the corresponding normal wages for such day. Finally, it should also be noted that in the event that a weekly day of rest coincides with a mandatory day of rest, the payment of double wages is not applicable given that this event is not provided for in the Federal Labor Law. In other words, if December 25 falls on a Saturday, and Saturday is a normal weekly rest day, the employee will not receive both the weekly rest day pay plus the mandatory day of rest pay, unless that the employee works in such day.