Employment Practice Group I November 23th, 2023

Senate approves reform to prohibit criminal record clearance requirements in hiring process and applications

On October 11, 2023, the Mexican Senate approved an amendment to the Federal Labor Law so that employers cannot request certificates of no criminal record for hiring, continuing employment or promotion.

The amendment, if approved by the House of Representatives, seeks to ensure an effective social reinsertion for those who have served a criminal sentence. The Senate considered that requesting certificates of no criminal record is a discriminatory act and creates barriers to find employment.

It is important to emphasize that the ban in the amendment proposed to the Federal Labor Law is not absolute. The amendment proposes that a letter or certificate of no criminal record may be required in certain types of jobs, provided that there is a reasonable justification that takes into account the specificity of the job, its responsibilities and characteristics, or that such requirement is expressly established in law. This will allow the possibility of requesting letters or certificates of no criminal record for certain job profiles and industries, such as those related to the handling of securities, private security services or the banking industry.

The bill was sent to the House of Representatives for review, therefore it is not yet in effect.

If this amendment is approved through the legislative process, it will result in the recognition in the Federal Labor Code of the principles established in recent years by the Mexican Supreme Court regarding equal rights, non-discrimination and freedom to work. To date, there are judicial precedents that suggest that requiring letters or proof of no criminal record without a legitimate reason could imply violations of the aforementioned rights.