by Victor Manuel Escoto-Zubirán
Escoto Zubirán y Asociados S.C.
The Mexican Supreme Court of Justice has recently resolved that the half hour break taken during a continuous work shift, must be construed as part of the shift and, therefore, paid for.
The prevailing practice and legal mandate is that during their work shift, the workers are entitled to a rest or lunch break, and that the same did not compose the shift; provided that the workers were allowed to leave the job site during such period.
This new interpretation of Articles 63 and 64 of the Mexican Federal Labor Law represents a major change on the labor environment in Mexico in two different fashions.
The first would be that from a litigation approach, all cases pending solution on which reinstatement on the job position has been offered, will be considered by the corresponding ruling authority (i.e. local and federal labor boards, district courts, circuit courts), as if such offer was not made in bona fide and for such reason, judged unacceptable. A reasonable calculation of the number of cases as these currently in process, will easily lead to the tens of thousands nationwide.
The second change may occur on a much more practical fashion, if and when the unions and others labor organizations realize that the lunch or rest period is part of the shift and they have been working an unpaid half hour extra for a long time. This may actually endanger the delicate status quo balance of many labor relationships encumbering the next collective bargaining agreement review to be undertaken.
Other implications, such as an action of the Social Security Institute action to recover quotas arising from that half hour may as well be expected.
This new interpretation criterion arose from the contradiction of thesis 50/2007 and is mandatory for all government agencies and judicial instances.