On June 4, 2015, the National Workers Housing Fund Institute Law (the "INFONAVIT" law) was amended, to incorporate Article 29 bis as an additional layer of regulations over the practice of outsourcing. Generally, INFONAVIT requires employers to contribute an amount equal to 5% of the employee's daily earnings to the national housing fund, to provide subsidized housing to employees, as well as loans at low interest rates for building a home or for home improvements. The addition of Article 29 bis appears to be designed to ensure that the national housing fund receives the required contribution from an outsourcing arrangement, regardless of whether the contribution is made by the contractor or the company benefiting from the services.
Specifically, Article 29 bis provides that, within the context of an outsourcing arrangement, where the contractor that provides the personnel to perform services fails to make the contributions into the INFONAVIT national fund or otherwise fails to fulfill its obligations as an employer, the beneficiary of the services—here, the company that hired the contractor for the services—must make the contributions. The beneficiary of the services will be liable for such contributions only if the INFONAVIT governmental agency had already notified the contractor of its employment-related obligations and the contractor had failed to comply with them.
Indeed, this amendment is in line with the amendments made to the Social Security Law in 2009 and the Federal Labor Law in 2012. Such amendments also imposed joint and several liability on the beneficiary of the outsourcing services where the contractor failed to fulfill the employment obligations it owed to the personnel that performed the outsourced work.
Additionally, Article 29 requires the parties in an outsourcing arrangement – here, the contractor and the company contracting for the services – to inform the INFONAVIT governmental agency of all outsourcing agreements they have entered into and update the information on a quarterly basis. As part of the information to be provided to INFONAVIT, the parties must include:
- copies of all services provider agreements entered into between the parties;
- purpose of the agreement;
- duration of the agreement;
- job classifications or positions involved;
- description of the specialized work to be performed, explaining justification for outsourcing;
- estimated number of employees that will be made available to the beneficiary per month; and
- Information identifying the actual beneficiary of the services for each worker who performs outsourcing work on behalf of the contractor.
Accordingly, employers participating as contractors or beneficiaries of the services should report the above-mentioned information to the INFONAVIT, just as they would report it to the Mexican Social Security Institute.
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