meeting your legal obligations

It is that time of year again.

None of us may live in Downton Abbey. But most of us northerners who live in Mexico have our own Carsons, Annas, and Thomases.

But, in our case, it is the Doras, Antonios, and Julios who tend our gardens, drive our cars, cook our meals, and clean our homes. Now that the calendar has rolled over to December, it is time to meet our legal obligations by paying the people who work for us their annual aguinaldo -- an amount that must be paid no later than 20 December.

There are several myths surrounding these payments. And I know, no matter what I say, people who believe something else will go on thinking what they want to think. There is, of course, a very high probability that I am perpetuating a whole set of other myths myself.
  

Even though I am a lawyer, I am not a labor lawyer, and I know nothing about Mexican law other than what I have researched, heard, and experienced.

So, this is my lay take on aguinaldos.  Do not rely on it as legal advice. Mexican attorneys and accountants exist for that purpose.  Consider this as a bit of entertainment from a fellow immigrant who might raise some questions that you need to ask your personal professional.

Let's get the big myth out of the way first. The aguinaldo is not a Christmas bonus.

I see that term used repeatedly by northerners. I suppose because it is intellectually more accessible than its real name -- aguinaldo. "Bonus" implies that the payment is a voluntary gift within the purview of the giver.

It is not. The aguinaldo is a required payment under Mexican law -- a law that is very pro-worker and will rightfully be construed in favor of the worker. The law clearly states the formula for calculating the required payment. It is not optional.

Second, the payment must be made in cash. Your home-made fudge and that cashmere sweater you bought on your last trip to The Bay will undoubtedly be received with great appreciation. But those are gifts. And they do not count toward your legal obligation.

Give the gifts out of love. Just be aware they have nothing to do with the required cash payment.

Third, just because something is a legal obligation does not mean it cannot be given in a spirit of joy. It should be. Because it certainly will be received in that spirit.

Mexican workers know what they should be receiving. Failure to pay the appropriate amount can lead to some rather nasty legal wrangling and tiring trips to Autlan -- with the usual mix of recrimination, lawyers, and the exchange of larger sums of money that accompany most labor disputes. Penalties for failure to pay are potentially very expensive.

So, what is your legal obligation?

The quick answer is that the aguinaldo is the cash equivalent of 15 days of the worker's daily pay. The formula is simple algebra. You may have been wrong in high school; there is some use in daily life for mathematics.

Multiply the number of days the worker worked per week by the number of weeks worked times the worker's daily pay times 15 days and divide all of that by 365 days. The product is the amount you pay as an aguinaldo to meet your legal obligation.

The formula will look something like this.  [Days worked] ÷ 365 X 15 X [daily salary]. It is simple to apply.

Every December, a quite uncivil war breaks out amongst expatriates who advocate just paying two weeks of wages and being done with it. Their opposite numbers, who demand strict compliance with the formula, call that cheating.* But, like most expatriate blood battles, it is distinction without a practical difference. Unless you are paying a huge sum of money, the difference between the two methods is minuscule.

I avoid the fight by using the two-week rule and then rounding up the amount. In other words, I top off the aguinaldo with a little Christmas cash gift. I know that offends some people. But that is what I do. For both Dora, the woman who helps me clean my house, and Antonio, the pool guy.

That is your legal obligation. But, as I have said above, meeting your legal obligation does not preclude you from showing your seasonal appreciation to the people who make our lives easier. Give that banana bread or book or bracelet. And keep in mind that extra cash is appropriate and greatly appreciated.

Here endeth the lesson on the law. But we are daily surrounded by people who make our lives easier who are not our employees.

Anna who weighs my produce. The guys who pick up my garbage. The hotel maids who clean my room when I travel. Fernando from DHL who delivers packages to my house. Julio who puts up my mail at the post office. Gus at Rooster's who always remembers I like lime juice in my mineral water.

None of them are beneficiaries of the aguinaldo because they are not my employees. But they certainly do make my life better for living here.

I suspect most people tip these services throughout the year. But December is a good time to indulge in a bit of largesse with some physical manifestation of your appreciation.  

And, in that spirit, I wish all of you a very Happy Christmas. May you find contentment and peace at the center.

Always.


* -- Part of the confusion is failing to take into account that in Mexico, as is true for a large portion of the world, "two weeks" are 15, and not 14, days. But, the law specifically states "15 days." Not "two weeks." So, that fascinating argument is simply academic.