Employees’ Rights in Case of a Transfer of Undertaking
In connection with the sale of a business or transfer of undertaking, the FLL generally requires the acquiring entity to retain the selling entity’s workers, as well as to assume existing benefit liabilities, regardless of whether the benefits are privately sponsored (e.g., company-sponsored medical insurance) or legally mandated (e.g., paid vacation and vacation premium). This is known as a substitution of employer.
As a corollary of this retention obligation, the acquiring entity must recognise the workers’ length of service, so as to ensure that changes in the legal structure or the ownership of the employer do not undermine the workers’ vested rights. If the sale of a business in Mexico is structured as a stock purchase or a merger agreement that does not affect the seller’s corporate entity, a substitution of employer does not come into play. In these cases, the buyer automatically becomes the employer of the seller’s workers.
When the buyer or substitute employer, assumes the workers’ terms and conditions of employment in effect prior to the substitution, the FLL does not require consent from, or consultation with, the workers. For a substitution of employer to apply, pre-substitution terms and conditions of employment – as established in the individual employment contract or collective agreement – must remain unaltered. If the substitute employer unilaterally implements detrimental changes to existing employment conditions, the employee can rescind the employment relationship and demand statutory severance. During the first six months following an employer substitution, both employers remain jointly liable for labour claims.
Requirements for Predecessor and Successor Parties
in order to consummate the transfer of workers through an employer substitution and properly allocate responsibility for labour liabilities associated with the asset sale transaction, both the seller and the buyer are required to comply with important procedural formalities and a host of administrative tasks.