Innovative solutions and regulatory challenges: technology’s role in labour law

Gabriela Guadarrama García

Basham, Ringe y Correa, SC, Mexico City

gguadarrama@basham.com.mx

Ana Sofía Lazcano Zamora

Basham, Ringe y Correa, SC, Mexico City

alazcano@basham.com.mx

New technologies in the 21st century and the Mexican scenario

The introduction of new technologies in the world of work has radically transformed the labour landscape in recent decades. Concepts such as telecommuting, digital disconnection, technological surveillance or protection of personal data are now an integral part of labour regulation in Mexico.

The growing implementation of information and communication technologies (ICTs), robotisation, artificial intelligence and other innovations have posed new challenges for Mexican labour legislation, leading to the creation of new labour rights to protect employees in the digital age.

The introduction of these technologies by employers has raised several questions regarding the validity of fundamental rights of employees, such as privacy, intimacy and non-discrimination, especially in the context of telecommuting, which is becoming increasingly common in the country. Mexico started regulating this work modality in 2021, under the concept of ‘telework’, providing unprecedented aspects such as the right to disconnect, data protection and confidentiality of information.

Regarding data management, ICTs enable the collection and processing of large volumes of employees’ information. To be able to manage personal data in Mexico, certain requirements must be met, such as specifying the purposes of data processing, ensuring anonymisation, confidentiality and use only for lawful, non-discriminatory and proportionate purposes.

Furthermore, Mexico lags far behind in terms of technological advancement for labour procedures. With the increase in remote work and digital communication in the workplace, relevant evidence for labour cases may take the form of emails, text messages or computer system records. The lack of regulation on the admissibility and protection of this evidence can hinder the fair resolution of labour disputes.

Challenges in the absence of regulation in labour and employment matters

Mexico and Latin America face the challenge of aligning their legal frameworks with global technological trends. This requires precise diagnoses of ongoing changes and proactively anticipating their impacts with new regulations as mentioned above. However, we cannot deny that the constant advancement of technology creates gaps with national legislations.

In Mexico, particularly during and after the Covid-19 pandemic, we have observed new needs related to the increasing number of employees who perform their duties from home instead of the workplace.

Companies in Mexico are eager to transition towards digitalisation and leverage technology to streamline their processes, particularly in areas such as human resources, labour compliance and employee management. The concept of integrating digital signatures into these processes is highly appealing. However, in Mexico, there is a deep-rooted resistance to its implementation, primarily due to the historically inefficient justice system managed by the Conciliation and Arbitration Boards (Juntas de Conciliación y Arbitraje – JCA), which are now obsolete. The recent labour justice reform, stemming from 1 May 2019 amendments to the Federal Labour Law (LFT),^[1] presents a significant opportunity to integrate technological and digital tools into corporate human resources processes.

In 2000, a reform aimed at electronic commerce was enacted, amending various legal codes, including the Federal Civil Code, the Commerce Code, the Federal Code of Civil Procedure and the Federal Consumer Protection Law, among others.^[2] This reform acknowledged and regulated technology as a valuable legal tool for digital identification, expressing consent and executing legal acts.

Following this reform, the Federal Civil Code stipulated that consent can be expressed verbally, in writing, through electronic, optical means or any other technology, or through unmistakable signs.

Later, in November 2012, the Federal Labour Law was amended to include a new section under Chapter XII ‘Evidence’, specifically section nine. This section incorporated scientific advances into the evidentiary process, defining these elements in Article 836-B, which includes Electronic and Advanced Electronic Signatures. This amendment also introduced certain rules for presenting and evaluating evidence, as well as the legal requirements for their admissibility.

Additionally, the Official Mexican Standard (NOM) NOM-151-SCFI-2016 (NOM-151) is worth noting.^[3] It outlines the requirements and specifications for the preservation of data messages and digital documents, as well as the management of information storage systems. Currently in force in Mexico, NOM-151 aims to ensure the integrity, authenticity and reliability of data messages and digital documents over time, providing legal certainty and security for all parties involved.

Mexican labour law has recognised and incorporated the use of digital signatures for over a decade. It even allows Advanced Electronic Signatures to carry the same legal weight as handwritten signatures. So, why are digital signatures not widely used in internal human resources processes? And why is there still resistance to technological change in the realm of labour compliance?

Legally speaking, current regulations in Mexico fully support the use of these tools, with a solid legal framework for their presentation and defence in labour disputes. However, practical implementation remains challenging.

The greatest risk in employment matters when using electronic signatures in documents, such as employment contracts or termination agreements, is that, in the event of a conflict, the Labour Courts may not recognise the signature as a valid method of consent due to several reasons: (1) the ease of identity impersonation; (2) the variety of technological expert tests required to prove the origin of the signature; and (3) the lack of express legal recognition by the Law, among others.

Due to such circumstances, where employers and employees may be in different geographical locations and physical signatures are not feasible, lawyers have had to revert to fundamental principles of law and use their creativity to innovate and provide efficient solutions for their clients. These solutions aim to meet client needs and mitigate risks for employers in case of disputes.

Fortunately, technology has been used as a tool to improve processes within the new systems of the Labour Courts and the Federal Centre of Conciliation and Labour Registry. It is now possible to conduct electronic procedures, such as filing administrative and judicial requests, which was not possible prior to 2019. A significant portion of the review process for electronic procedures is automated, resulting in material resource savings, reduced waiting times and a lighter workload for public servants handling labour and employment matters.

Although advancements in the use of technology have accelerated since the 2019 Labour Reform in Mexico, which transformed the justice system, created new labour authorities and streamlined dispute resolution processes, there is still a long way to fully meet the needs of employees and companies. While electronic communication offers numerous benefits, there remains a legislation gap originating from the electronic interconnection of individuals.

In this regard, technological advances in the workplace require adequate training for judicial personnel in terms of handling digital evidence, understanding new forms of employment and applying updated labour laws. The lack of regulation could result in a knowledge gap that affects the quality and fairness of judicial decisions.

The future of labour and employment law

In conclusion, technology is rapidly transforming the labour world, generating productivity and innovation benefits, but also creates risks to employees’ rights. It is essential to adapt legislation to protect, both employees and employers, in the face of new employment modalities mediated by digital platforms.

Only by updating the current labour law and enshrining new ‘digital rights’ suitable for the 21st century can we responsibly harness the potential of emerging technologies, without compromising the privacy, well-being and inalienable rights of the workforce that employs them.

In the meantime, lawyers must make decisions driven by creativity and innovation. It is not enough to rely on solutions that have worked in the past; it is essential to adapt knowledge to the current needs of clients and propose new ways to face daily challenges.

The ability to innovate and think outside the box is indispensable for designing effective strategies that protect both employers and employees. Lawyers must be up to date on emerging trends and be able to anticipate the legal implications they may bring.

Moreover, close collaboration with other professionals and industries is crucial to developing comprehensive solutions that address the complexities of the digital age. Only through a creative and proactive approach can we ensure that legal practices remain effective and provide the best possible service to clients, adapting to the constant changes and challenges brought about by technology.