Such decision has been issued by the Supreme Court. In accordance with this resolution, the salary that must be considered for purposes of payment of overtime must be the one described in article 84 of the Federal Labor Law (“Law”), which includes payments in cash plus gratifications, housing, premiums, commissions or any other benefit paid to the employees in consideration for their work, because the salary earned during the normal work shift is the one received by the employee for hours worked during a normal shift, which means that the regular salary is the one described in article 84 of the Law and is valid for all days of work (i.e. weekly or monthly shifts) and not only for severance calculation purposes, because it is the salary that the employee actually receives for each day of work or even rest days.
The same resolution establishes that the payment of overtime should not be integrated with benefits such as Christmas bonus or vacation premium, which are not paid ordinarily to the employee (e.g. weekly or bi-weekly) but with those benefits paid in consideration for the normal work hours. As a result, it is clear that the integrated salary for purposes of payment of overtime is not the same as the integrated salary for purposes of the payment of contributions to the Mexican Institute for Social Security.
We consider that it is necessary to analyze the benefits that could be deemed as an integral part of the salary, in order to determine which should be included for purposes of payment of overtime
This decision of the Supreme Court is binding and does not allow any kind of defense or appeal; therefore, it is important to implement the necessary modifications to pay overtime in compliance with the terms established in this decision.
Please feel free to contact us if any questions or comments arise. We will be happy to provide additional information regarding this matter.
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