Is it legal to ask for ‘proof of work’ in a recruitment process?

Is it legal to ask for ‘proof of work’ in a recruitment process?

Free work for companies?

This practice is very common in various industries. It not only happens in pitches that are made to compete with other agencies to carry the communication, public relations, project or marketing of a company or brand. It is also seen in recruitment processes, as employers often ask candidates for a book, an article or a project, in order to demonstrate their skills and ability to fill a particular position.

In legal terms, Karla Alatriste, partner at GLZ Abogados and specialist in intellectual property, assures that there is no official provision that prohibits companies or employers from requesting prior work samples. However, it is prohibited that there is an improper use of these materials, without the authorization of the intellectual author.

In Mexico, the Federal Copyright Law is the one that regulates everything related to works and copyright. This law even protects the author in the event that there is no written contract in which he transferred the rights to a work or work in favor of another person. “Protection is automatic as long as the idea is on a material support and that the author can verify its authorship. If you expressed an idea in public, it is not subject to copyright protection, but if you drew it or captured it, you can claim authorship “, he points out.

According to the lawyer, an improper use of a work is considered when complete or small portions of content are taken up to form a ‘new’ material, but without the consent of the author or reference to it. Likewise, it is understood as plagiarism when only the name of the author is changed to a work and a crime when a total or partial work is reproduced for profit. Although each situation varies and is very specific, depending on the context.

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There are companies, especially content creators, who have their employees sign confidentiality contracts and copyright sessions to the company, with the aim that everything generated within the organization serves the objectives of the organization itself. It all depends on the initial agreements, emphasizes the specialist, even between applicants and employers.

Regarding the sanctions, Alatriste refers that the costs vary based on the offense committed, that is, that the author can claim the payment of damages that the authority considers, while in crimes there is deprivation of liberty and a fine corresponding to the offender.

Article 230 of the Federal Copyright Law establishes that fines range from 1,500 to 8,000 times the Unit of Measurement and Update (UMA), whose unit value is 89.62 pesos.

“It is valid that companies request a project to evaluate the candidate, but it is important that there is clarity and that it is established that the material is requested for selection purposes. This shows a commitment and transparency towards the applicants,” advises the lawyer.