We are not a law firm. Do not consider our information as legal advice. This information has been summarized based on our legal inquiries. Information can become obsolete from one day to another due to changes in laws, regulations, or government procedures. Consult labor and tax attorneys for legal advice. (Note from HR Mexico staff)
Non Compete in Mexico
Non Compete after Employment: The Mexican Constitution and Federal Labor Statute protects the right to work. Binding case law by the Supreme Court (Judicial Gazette volume XXIX, April 2009, 1a./J. 51/2009, page 507) established that the constitutional right to work may only be limited if (i) the restriction is established by a statute, (ii) the restriction is necessary to protect a public interest and (iii) the restriction is proportional. Thus, a general non-competition and non-solicitation duty after the termination of the employment contract could probably not be enforced in Mexico.
Non Compete for Employer's Client: Under Mexican Labor Law, it is considered a lack of honesty if during his/her employment an employee provides services to a second employer that directly competes with the first employer. However, there is no law prohibiting the employee from providing services to an additional employer directly competing with the employer’s client.
Comercial Secrets: Article 82 II of the Mexican Industrial Property Statute establishes that information of a commercial secret must refer to the nature, characteristics or scopes of a product; production method or procedures; or the measures and forms of distribution or commercialization of products or services.
Who is the Inventor: Article 163 I and II of the Federal Labor Statute establishes that the employee inventor is always entitled to be recognized as the author of an invention he/she makes, notwithstanding the fact that he/she did so on the premises or with the tools of his/her employer or during the normal course of his/her employment.
If the employee makes an invention as a researcher of the employer, then the exploitation of the invention belongs to the employer and the employee may be entitled to an additional payment on top of his/her salary. In all other cases, the rights to the invention belong to the employee and the employer only has a preferential right to acquire the invention. This is mandatory law and cannot be waived by the employee.
Free Speech: The Mexican constitution protects the freedom of speech unless a third party right is affected. Thus, a prohibition to publish any statement about the Company will not hold up unless a specific right is affected.
Confidentiality of Private Communications: Article 16 of the Mexican Constitution protects the confidentiality of private communications and establishes that any violation of a private conversation is a criminal offense, except if voluntarily divulged by a participant to the conversation. Consequently, a non binding precedent by the first Chamber of the Supreme Court from the year 2008 clarifies that the divulgation of a private conversation by a party who participated in the conversation does not infringe the law. Thus it is not a violation of Mexican privacy laws by taping and divulging conversations that took place in meetings in which the person participated.