In the past decade, we have witnessed an enormous advance in the technological field. We can see such cases in the increase of Internet users, e-mails, PDAs, among others. With the implementation of such new technologies, we have seen that corporations have optimized their resources and governmental offices have achieved a reduction in time for their procedures. As an example, we could mention that ten years ago, those individuals that their period for the payment of their vehicle tenancy tax had elapsed, should have gone to the tax office, get in a line that would take forever, then have their surcharges calculated, and afterwards get in line again to pay such tax. Nowadays, this is history. This same individual, from his home or office, can access the local government’s webpage, and in a matter of seconds, can calculate his surcharges and print the corresponding ticket. To this point, he could choose, either to take such receipt and perform the payment in the bank, or simply electronically transfer the funds for such tax. The system will then issue a number or code evidencing the receipt for such payment.
As well as for the aforementioned example, today, we can find a series of operations done electronically. Less physical window operations are done by the bank offices, due to the increase in Internet users. But you might be asking yourself, are these kinds of operations reliable or safe? Is the system reliable? In case of a conflict, is the payment receipt code or number really enough? Can we use it in a trial if the bank does not recognize the operation?
Complex encryption systems have been developed by the banks. According to the banks, the 128 bits cipher is practically impossible for hackers (that new flourishing race) to intervene in the transfer process information.
Likewise, the Government has implemented the use of the Advanced Electronic Signature, also known as the "FEA" (due to its acronym Firma Electrónica Avanzada, that, by a unwilling humorous twist of fate coincides with the Spanish female word for "UGLY"), as well as the possibility to issue electronic invoices. For such matter, the Federal Congress has reformed a number of laws related thereto, including the Federation Tax Code, the Civil Procedure Federal Code, among others.
In this new structure, all the taxpayers will posses an electronic signature that will be an ID to perform all kinds of procedures before such authorities. Without any doubt, the implementation of new technology is bringing enormous benefits to our daily life, the optimization of material and human resources, the considerable savings on time, and it gives us a more detailed control in our ongoing transactions. Currently, it is difficult to think of individuals and businesses that are not using a computer to aid them in their activities. The use of the electronic signature provides certainty and legal security and we could say that it guarantees the identity of the individual that performs the procedure, among other benefits.
Would such technology work, considering the labor law framework?
That is perhaps the most common question from our clients when implementing these technologies (and many have), aiming to improve the management of their human resources. Such is the case of the old attendance punch cards replaced by the modern sensor and finger prints detectors. It is only a matter for the employee to place his fingerprint before a reader to check his entrance, or to slide his card so the system can register his attendance automatically.
In case of salary payments, we have seen great changes, due to several factors, among them, the insecurity in our cities. Currently, a generalized practice is that employees receive their salary payment through electronic bank deposits. Advantages such as savings in paperwork for salary payment, the avoidance of going to a bank office carrying a great deal of cash, as well as the savings derived from the hiring of money transportation companies, are among the benefits that motivated corporations to implement these systems. On the other hand, corporations have confirmation codes that are provided by their banking institutions.
But, to this matter, what happens if corporations are involved in a labor claim? If the employee is claiming overtime, or the payment of his salary or any other benefit, do these electronic receipts evidence the payment of overtime or the opportune payment of their salaries?
The Federal Labor Law currently in force, establishes the admission of all means of evidence, including those developed by new technologies. In this case, we can find the electronic means, that in principle, are admissible as evidence, but, what is the real evidence weight of such electronic means in a labor trial?
To such effect, the Courts have sustained that in labor matters, such electronic means should be subject to perfection, this means, they should be accompanied by other evidences that, jointly analyzed, should provide a legal certainty that the funds electronic transfer has been performed and received by the employee. This means of perfection could be a document issued by the bank, demonstrating that the employee indeed received the funds in his account, but additionally, the employee has to expressly recognize the reception of such payments (complex situation due to its own nature).
An interpretation by a Court currently exists, through a thesis that sustains that e-mails, although admissible as evidence, its evidencing weight is practically null, in virtue that such e-mails, are not susceptible to perfection, this means, they will never have the certainty of the individual who send such e-mail, due to the fact that it could have been prepared by any other individual that had access to the employee’s code information.
Then, do we have the necessary legal certainty by using the FEA/UGLY regarding such electronic documents?
From the perspective of the Federal Tax Code, Commercial Code, Civil Procedure Federal Code, among other laws, to those electronic documents that are signed though the use of a FEA, we do have legal certainty, as long as the FEA complies with all the requirements established by these norms.
In labor matters, we still do not have any specific regulations with respect to the use of the FEA, hence, it is logical to apply the provisions that do regulate it, however, we find that article 17 of the Federal Labor Law established that in labor matters, no civil or commercial laws, nor the federal or local civil procedure codes are applicable, due that this was suppressed from the Federal Labor Law since 1970. Funny to say, the previous labor law of 1931, permitted this, however, our social and populist governments, on their time, considered that the Labor Law deserved a greater importance, not to be subject to any regulations of the civil law. Consequently, the application of the FEA in labor matters is not recognized, so all those corporations that have intentions to apply it on the documents related to their employment relationships, should find the adequate legal advice to create structures that could permit them to take advantage of the technology without jeopardizing their legal security, or in other words…Be careful when using the FEA for labor purposes. Things could get UGLY!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.