Classification of App-Based Couriers as Employees in Mexico

Quick Hits

• A new Mexican law states that app-based couriers that meet certain requirements established under this law will be considered employees of digital platforms when they provide their services through the apps.
• The law also provides that only workers who generate at least a daily minimum wage per month will be entitled to social security and benefits.
• Digital platforms acting as employers must determine in writing the working conditions and must meet the general requirements that the Federal Labor Law establishes for an individual employment agreement.

The amendment defines “digital platform work” as “the subordinate employment relationship for the performance of remunerated activities that require the physical presence of the employee for the provision of the service, and which are managed by an individual or legal entity in favor of third parties through a digital platform.”

Requirements for App-Based Couriers to Be Considered Employees

The amendment provides that all couriers will be considered employees of digital platforms when they provide their services through the apps, but only those who generate at least a daily minimum wage per month will be entitled to social security and benefits.

Couriers who do not meet the minimum wage per month will be considered independent workers and will only be entitled to insurance or protection against personal accidents regardless of the income generated.

The secretary of labor and social welfare will be in charge of publishing the general provisions that will define the calculation of net income to determine an employee’s category and benefits.

Employment Agreements and Employer Policies

The amendment states that the digital platform, which can be understood as the employer, must determine in writing (execute a contract) the working conditions and must meet the general requirements that the Federal Labor Law establishes for an individual employment agreement (e.g., the name of the employee, CURP number, RFC number, employee’s nationality, the services to be rendered, and work shifts).

Employers may also execute policies to describe processes and how services are rendered to third parties, among other things.

The reform provides that the salary for employees may be stipulated by the trips provided, by actual delivery, by unit of work, or any other method agreed upon by the parties. Whenever a wage is considered, compensation shall include the proportional weekly rest day, vacations, vacation premium, Christmas bonus, and overtime.

Employees on the platform will determine their own work shifts and will have complete freedom to determine their own shifts without fixed schedules. Employees will also be able to connect and disconnect at their own discretion when required.

The Official Gazette of the Federation grants a 180-day period, as of the publication date, to comply with all the obligations stated in the amendment.

Ogletree Deakins’ Mexico City office will continue to monitor developments and will provide updates on the Cross-Border blog as additional information becomes available.

Pietro Straulino-Rodríguez is the managing partner of the Mexico City office of Ogletree Deakins.

Natalia Merino Moreno is an associate in the Mexico City office of Ogletree Deakins.

María José Bladinieres is a law clerk in the Mexico City office of Ogletree Deakins.

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