The vacation increase in the Federal Labor Law (LFT) is in force throughout the country since January 1. However, according to specialists in labor matters, the lack of clarity in the transitional regime opened the door to two application scenarios: extending the days to accumulate seniority in accordance with the new regulation or with a proportional part between the old provision and the modification.
As context, the vacation reform raised the minimum rest period to which workers are entitled after their first year of service to 12 days and contemplated a formula of gradual increases based on seniority.
Although the ideal scenario is that each person sees the change effective according to their work anniversary date from this year, some companies are opting for another legal route that contemplates a proration to grant a period proportional to the time worked in 2022 and 2023.
For example, a person who started work in June 2022, in the sixth month of this year would be entitled to 12 days of vacation, but with another interpretation that some companies are applying, they will be granted only 9 days, which is equivalent to the sum of half of what would correspond to him for a full year of work with the past legislation (3 days) and half of what should be granted for a year of work with the modifications to the LFT (six days).
Sofía Gómez Bautista, leader of the Labor Practice at Creel Abogados, believes that both criteria are correct, but vacation apportionment It is based on a jurisprudence that establishes that the right to vacation is generated with the days worked.
“Under this interpretation it could be based that vacations establish proportionally according to the previous table of the time worked in 2022 and according to the new table and with the time worked in 2023”, explains the specialist.
The jurisprudence in question was issued in 1996 by the Supreme Court of Justice of the Nation (SCJN) and establishes that “the right to enjoy vacations is generated by the time the services are provided (…) because generic seniority is obtained from that moment and it occurs day by day and, cumulatively, as long as that link is in force; therefore, once the worker completes five years of service, he will operate the aforementioned increase ”.
In the second legal option, granting the increase without seeking an apportionment, is an “exegetical” interpretation of the Federal Labor Law: in case of doubt, what is most favorable to the employee is applied, says Sofía Gómez. “You give it all because it is what benefits the worker the most,” underlines the specialist.
Carlos Ferran Martínez, managing partner of the firm Ferran Martínez Abogados, agrees that both interpretations have legal basis to apply. And although he is more inclined to fully implement the new minimum vacation floor as soon as the person accumulates seniority in 2023, he does not rule out that both scenarios are possible.
“It is like a midpoint between the previous regime and the current one, and the logic and defense of that interpretation is that vacations are a law that is generated over time. Some people say that vacations are generated day by day, today I am generating a “minipart” of my vacations and, in this sense, quantifying a part of the vacations with the previous regime and one with the new one is a valid interpretation, although it is not I agree with her”, explains the specialist.
Given any scenario of interpretation by companies, Sofía Gómez points out, this would only be applicable during 2023, in the transition of the reform. In other words, in 2024 all workers will be regularized and the new regime will be fully applied.
For Hugo Hernández-Ojeda Alvírez, leader in the Labor and Employment, Pensions and Social Security practice at Hogan Lovells in Mexico City, the wording of the vacation reform “is confusing” and this opens the door to various interpretations.
Legal interpretation to turn it around?
Abigail Quiroz, president of the Fundación Trabajo Digno, believes that the apportionment of vacation days It is an inappropriate interpretation. “The Law is very clear, they seek to give it another approach, but it is very clear, is it in force or not? The parameter is the time at which the right is generated. And the law is generated with antiquity, and no reform can be interpreted to the detriment of a worker, no matter how much we want to interpret it that way, it will be corrected in court”.
Hugo Hernández-Ojeda agrees that the extension of the rest period with proportional parts is inappropriate. “In my opinion, the reform began its validity on January 1, and the right of workers to enjoy vacations is acquired with the work anniversary. If I started working on September 15, 2022, then on September 15, 2023 my child will be born. right to enjoy vacation”.
Under this logic, adds Abigail Quiroz, the worker severance that are carried out in 2023, even if they do not have a year of work, must be based on the new vacation regime. This is so for two reasons, the first is because the workers have the right to receive the proportional part of the benefit; the second, because the termination of the employment relationship is carried out with the new provision in force.
Although the minimum holiday floor was doubled, the fine for non-compliance by companies did not. The penalty for not respecting this right is the penultimate lowest in labor law, with a maximum amount of 25,935 pesos per affected person.
Beyond the interpretations, all the specialists consulted agree that the vacation reform is key to social dialogue between workers and companies to achieve consensus, especially when deciding when and how the days will be enjoyed.
