Understanding the Legal EnvironmentTue, 12/01/2015 - 18:08
“The law is involved in every area,” began Alfonso Pasapera Mora, Partner at Gastélum Abogados, “While every company has many different divisions, all of them important, a legal department is essential for every company.” Pasapera gave an overview on the legal environment companies are facing nowadays. He commenced with a brief history on the international agreements regarding human talent and their importance in shaping the current Mexican regulatory environment on the matter of relations between employers and employees. He mentioned an international agreement signed in 1979 to address discrimination, among other factors. Pasapera discussed strategies for companies to avoid discrimination and penalties established by law. “While it is difficult to sanction,” he said, “nowadays it is possible to bring legal charges against either coworkers or employers for discrimination.” In order to avoid lawsuits, companies must create clear policies and explain them properly. Recently, there has been a particular focus on moral reparation which has led to several compensation lawsuits. To avoid this, Pasapera encouraged attendees to pay close attention to both local and international law.
Pasapera also spoke about human resources law. One of the topics upon which he touched was the difference between an employee and a service provider. However, he warned attendees that the distinction could become blurry, which could be problematic. Pasapera mentioned examples of companies that had tried to exploit this distinction, or that were unaware of it, and were taken to court. He stated that the key distinction between them is “subordination”, which refers to the relationship between the individual and employees. If a worker is not considered an employee by the company, but can prove his or her status in court, there is subordination between employee and employer, and the petitioner has a strong case for a lawsuit.
On the matter of retaining employees, Pasapera lamented that there were no options for making an employee stay, even if the company had spent a large amount of money in training and has not received a return on this investment. He says that in those cases, the only thing that a company can do is include punitive clauses in their contracts, imposing a monetary penalty if the employee leaves before a determinate period. Another topic he highlighted is the need to include penalties in contracts for former employees who release confidential information and enforce infringement in a court of law. Pasadena claims that the most effective strategy to protect the company is to strengthen the relationship between employee and employer and generate loyalty and trust between both parties.