On December 12, 2024, the Senate approved the reform to the Federal Labor Law regarding digital platforms such as UBER, DIDI, RAPPI, among others, which was published in the Official Gazette of the Federation on December 24, 2024.
In which a section VI is added to Article 49; a section IV to Article 50; a section IX to Article 127; a Chapter IX Bis, called "Work in Digital Platforms", which includes Articles 291-A to 291-U and an Article 997-B to the Federal Labor Law, to the Federal Labor Law.
This reform, which was promoted by President Claudia Sheinbaumwas one of the commitments made on his first day in office and was prepared by the Ministry of Labor and Social Welfare.
The Secretary estimates that about 272,000 of the 658,000 delivery drivers and drivers in the country will have access to labor rights, such as social security and working conditions, depending on the income they earn, and will also be entitled to profit sharing.
This reform has rules for delivery drivers to enjoy these rights.
Flexibility.
Flexibility in the schedule is something that will remain, for the development of the functions of the delivery drivers and drivers, the conditions for them to acquire labor rights are already established, some are not yet well defined, but in general terms, it is known what must be complied with.
This is one of the important points to be addressed, since many people think that they will have labor rights and tend to assume that they will also have working hours, which is not attractive to delivery drivers and drivers.
Remembering that the attractiveness of these platforms when they started was always the flexibility in the schedule, you worked according to what you wanted to earn, being the owner of your time, and your own boss.
Minimum wage.
This will be to ensure that delivery drivers and drivers of such platforms generate at least a monthly income equivalent to one minimum wage.
Those who do not reach this level of earnings will be considered self-employed, all without exception will be protected, regardless of the amount of their income, against accidents.
When the accident occurs, the digital platform being used by the driver or delivery person will be responsible for the payment of the social security insurance, this will only be applicable to the effective working time.
The more precise guidelines as to exactly how the payment will be made are not yet known, but the Secretary of Labor and Social Welfare has to issue those guidelines, but it is still within the deadline to do so.
The effective working time is another key factor because it determines the moments in which the labor relationship between the platforms and the delivery drivers and drivers is configured.
It should be noted that this time is from the time an order or trip is accepted until it is concluded.
That is why it is free use of algorithms, so that if an occupational hazard occurs, we can determine which app was in use while the accident occurred, and in the same way the profit that the driver or delivery person had in the month.
Algorithms
The reform marks transparency in the use of algorithms in the allocation of app services.
For them, the digital platforms must create a management policy for the use of algorithms, which is used, how it works, in the work part, without technicalities, with which workers must be informed, the criteria used for such algorithm, its criteria, indicators and all that it implies.
These algorithms will also help determine the company's revenue, profit and therefore, profit sharing.
Profit Sharing:
Employees' profit sharing will correspond to deliverymen and drivers when they exceed 288 hours of service per year, counted as effective working time.
According to the Secretary of Labor and Social Welfare, the average of 288 hours is the result of a factor of 0.75 of activity actually worked; that is, 45 effective minutes of work for each hour of connection, the remaining time is equivalent to waiting time.
The reality is that most delivery drivers and drivers will be able to reach this annual target to qualify for profit sharing.
We know that the Secretary of Labor and Social Welfare, once published, has 30 days to determine the guidelines of such reform, in the case of profit sharing, how will the payment of the same work, if the share or driver, uses more than one app, which app is the one that has to pay? Or what is the percentage that each app has to pay, this is something that is very ambiguous, and so far no pronouncement has been made in this regard.
The obligations that the digital platforms had, were fiscal and mercantile, fiscal before the Government Institutions and Mercantile before the deliverers and drivers, which was a mercantile contractual business relationship, as a provision of service, which is modified, with the reform we are talking about, bringing with them new obligations for the apps.
Obligations for digital platform companies.
Digital platforms will be obliged to:
One of the obligations of formality is to create a contract other than the terms and conditions that contains data of the delivery drivers or drivers, where all the points indicated in this article are established, such as: the accounting system of income generated and effective work time, the equipment or supplies that are provided to workers, contact and supervision mechanisms, among others.
This model contract will be authorized and registered with the Federal Center for Labor Conciliation and Registration (Centro Federal de Conciliación y Registro Laboral (CFCRL).
In the event of non-compliance with such requirements, the penalties for non-compliance will be as follows:
Reasons for disconnection
Speaking of disconnection, it does not mean that the driver or delivery person disconnects, but that the platform can disconnect the worker if he/she incurs in any justified misconduct, such as unjustified and frequent non-fulfillment of orders or services, lack of probity and honesty, any act of violence, harassment, harassment, presenting false documentation or compromising the security or privacy of any user, theft.
Entry into force.
It becomes effective 180 days after its publication in the Official Gazette of the Federation, that is, as of December 24, 2024.
Once the publication becomes effective, the Technical Council of the IMSS has five days to publish the general rules for the insurance of delivery drivers and drivers.
Once the insurance rules have been published, the IMSS will have 180 days to launch a mandatory pilot program, an exercise that will allow it to define the proposed amendments to the social security legislation.
The Secretary of Labor and Social Welfare will have five days after the effective date to publish the general provisions that will define the calculation of the net income of application workers.
References:
The Economist. Revised December 16, 2024, link: https://www.eleconomista.com.mx/capital-humano/7-claves-reforma-laboral-plataformas-digitales-aprobada-diputados-20241211-737833.html?s=08
Official Journal of the Federation. Revised December 26, 2024, link: https://www.dof.gob.mx/nota_detalle.php?codigo=5746132&fecha=24/12/2024#gsc.tab=0
Federal Labor Law. Revised December 30, 2024. https://www.diputados.gob.mx/LeyesBiblio/pdf/LFT.pdf
The Economist. Revised December 30, 2024, link: https://www.eleconomista.com.mx/capital-humano/reforma-plataformas-digitales-publicada-dof-entra-vigor-20241224-739611.html
