STPS brings the hotel sector to heel with new criteria to regulate outsourcing

The Ministry of Labor and Social Welfare (STPS) prepares new criteria with which it would consider a dozen services in the hotel sector as part of the corporate purpose and predominant economic activity of these businesses, which in practice would imply that they could not be subcontracted under the new rules of outsourcing.

These criteria, which are being analyzed by the National Commission for Regulatory Improvement (Conamer), would be applicable to the inspections carried out by the authority to verify compliance with the subcontracting reform in the hotel sector. In other words, it is the interpretation that the STPS would make during a visit to a workplace in this industry.

Recently, the labor authority formalized similar criteria for the export agribusiness sector, with which the agency established that for the purposes of an inspection in this branch, cutting, harvesting, and collection services would be considered as part of the corporate purpose and economic activity. preponderant of the companies are the companies dedicated to cultivation, packaging, distribution and export; this means that such services cannot be outsourced.

In the case of inspections in the hotel industrythe STPS would not consider the following activities as specialized services:

• Room cleaning
• guest registration
• Guest service
• Chefs
• bartenders
• captain of waiters
• waiters
• laundry attendants
• clothes keepers
• wash slabs
• Cleaning and kitchen care
• reservations
• room charges

“The activities listed in the previous point are not considered specialized, therefore, it is unfeasible for companies or individuals dedicated to providing temporary housing services (hotel industry) hire these services with a specialized nature, since said activities are intrinsically linked to their corporate purpose and predominant economic activity ”, exposes the dependency in the criteria.

Jaime Rodríguez Eguiarte, lead partner of the Labor Practice of the firm Ibarra, del Paso y Gallego, acknowledges that in the hotel sector there are various activities that in other industries could be classified as specialized services.

“In a hotel, for example, the cleaning a room It is part of the added value of your main activity, which is why it is understood that the Ministry of Labor considers them as part of the predominant activity, because it is related to the value that is given to the room that is rented to guests” , explains the specialist.

During the anniversary of the Mexican Association of Human Capital Companies (Amech), Alejandro Salafranca Vázquez, head of the STPS Decent Work Unit, pointed out that the priority sectors for monitoring the new subcontracting rules are: agribusiness, tourism , security and cleanliness.

For Diego García Saucedo, managing partner of the García Vázquez Abogados firm, the criteria prepared by the authority are pertinent to give greater clarity to the inspections and prevent surveillance from being subject to the interpretation of each inspector.

“In the hotel sector, inspections were easy to hit because tasks such as cleaning, for example, were justified. What the authority proposes is that the hotel business permanently needs cleaning and restaurant services, so an employer cannot argue that they are hired as specialized services. If it is issued, it will cut off a hand from the hotel sector that justified the possession of outsourcing companies under that situation ”, he adds.

However, specialists in Labor Law emphasize that although the authority is empowered to regulate the labor inspection, these provisions do not eliminate the possibility that an employer who has a different interpretation may be protected, so a possibility cannot be ruled out. legal defense scenario by the hotels.

In fact, Jaime Rodríguez considers that in the short term, as the inspections progress, it is likely that the courts will define the interpretation of the new outsourcing rules in every industry.

For his part, Diego García agrees that there may be a scenario of clash of interpretations between the authority and employers, so it is necessary to closely monitor how the protections evolve.

Keys to understanding specialized services

The outsourcing reform he closed the key to outsourcing based on the supply of personnel and regulated the outsourcing of specialized services. In other words, it allows the contracting of suppliers that carry out tasks with their own workers, as long as these are not part of the corporate purpose and the predominant economic activity.

To participate in this industry, suppliers must register with the Registry of Specialized Services Providers or Specialized Works (Rep), a public register operated by the STPS and with more than 128,000 records so far.

Since April 2021, no company can subcontract activities that are part of its corporate purpose and preponderant economic activity. For example, a company that offers cleaning services cannot subcontract the workers with whom it executes those activities.

The reform established penalties ranging from 192,440 to 4.8 million pesos, the highest labor fines, for companies that fail to comply with the new subcontracting rules.