Labor Law Midterms PDF

MODULE 3: OUTLINE OF LABOR STANDARDS IN THE PHILIPPINES TERMS AND CONDITIONS OF EMPLOYMENT REGION 294 - 320.00 REGION 12 315 - Meal period 4-B...

MODULE 3: OUTLINE OF LABOR STANDARDS IN THE PHILIPPINES TERMS AND CONDITIONS OF EMPLOYMENT REGION 294 - 320.00 REGION 12 315 - Meal period 4-B 336.00 Private retirement benefit Maternity leave REGION 5 310.00 REGION 13 320.00 Paternity leave BARMM 290 - 325.00 Parental leave Leave due to domestic violence Leave due to gynecological disorders 13th month pay WORK HOURS AND OVERTIME - Normal work hours should NOT exceed 8 hours MINIMUM WAGE a day. The minimum wage rate in the Philippines under the minimum wage law, varies from one region to However, through a valid compressed another, because the wages are set by the relevant workweek arrangement, an employee who renders Regional Tripartite Wages and Productivity Board. work in excess of 8 hours a day is entitled to overtime pay equivalent to the applicable wage rate plus at least Under the most recent wage order for: 25% thereof. 1. CAR, Baguio City, La Trinidad, and Tabuk City, the The overtime rate will vary if the overtime work daily minimum wage rates are at P340.00 is rendered on a rest day, regular holiday, or special day, (basic), + P10 (COLA) = P350. or during the period between 10 pm and 6 am the 2. Other areas in CAR are set at P330.00 (basic) + following day. P10 = P340 daily minimum wage rates. EXEMPT EMPLOYEES are certain classes of employees *** COLA → Cost of Living Allowance. that are not entitled to overtime pay. These includes: Government employees; Source: CAR Per Wage Order No. RB-CAR-20 (Effective: Managerial employees and officers or 18 November 2019). members of the managerial staff; Field personnel Members of the family of the employer who DAILY MINIMUM WAGE RATES are dependent on him/her for support; as of August 6, 2020 Domestic helpers and persons in the personal service or another; and REGION: MWR in PHP REGION: MWR in Employees who are paid by results, as PHP determined by the Secretary of DOLE in NCR 500 - 537.00 REGION 6 310.00 - appropriate regulations. 395.00 Employees going for overtime to be entitled to CAR 340 - 350.00 REGION 7 351 - overtime pay depends on the nature of their duties and 404.00 responsibilities. If the employee’s duties and REGION 1 282 - 340.00 REGION 8 295 - responsibilities do not qualify them as an exempt 325.00 employee, they are entitled to overtime pay. REGION 2 345 - 370.00 REGION 9 303 - Should these employees’ duties and 316.00 responsibilities qualify them as exempt employees, they REGION 3 304 - 420.00 REGION 10 331 - are not entitled to overtime pay. 365.00 Employers may not require employees to REGION 303 - 400.00 REGION 11 381 - perform overtime work EXCEPT in certain cases and 4-A 396.00 provided appropriate compensation is paid.  In practice, employers must ask employees to For work done on rest days, the employer should sign employment contracts where the employees agree pay compensation equivalent to the applicable wage to perform overtime work. rate plus at least 30% thereof. EXCEPT: exempt employees COMPRESSED WORK WEEK IN RELATION TO OVERTIME PAY The rate for work on a rest day will vary if the rest - Compressed workweek is NOT MANDATED. day is also a regular holiday or a special day, or if work is during the period between 10pm and 6am the following day; However, there are existing guidelines on this: Employers may not require employees to work The effectivity and implementation should be DURING their scheduled rest day. voluntary. The work scheme is voluntary because this is part EXCEPT: in certain cases and provided appropriate of the management prerogative. compensation is paid. Both parties have the autonomy to reach an agreement if it does not violate our labor laws. In practice, employers must ask employees to sign Benefits of the employees SHOULD NOT BE reduced due to the implementation of such work employment contracts where the employees agree to perform their work outside their normal work schedule. arrangements. **Rest days → are made to reiterate that there is a need Department Advisory No. 4 Series of 2010 Defines the compressed workweek as a flexible to dignify work and to respect the dignity and humanity of workers. work arrangement where the normal workweek is reduced to less than 6 days, but the total number of work hours per week shall remain. The normal workday is increased to more than 8 hours, but not to exceed 12 NIGHT SHIFT DIFFERENTIAL hours, without corresponding overtime premium. The Pertains to the additional compensation of at concept can also be adjusted accordingly depending on least 10% of an employee’s applicable wage rate, the normal workweek of the company. payable to employees who perform work between 10pm and 6am of the following day. **There are a lot of considerations in adopting flexible work arrangements but the scheme aims to improve EXCEPTION: exempt employees business competitiveness and productivity. ***Why 10% or more?: workers are people and not **The scheme further aims to give both employers and machines, they spend hours and are made to suffer in employees the flexibility in work hours which is work. Hence,the 10% are for compensation. compatible with business requirements and the employees’ need for a work-life. REGULAR HOLIDAYS: 12 REGULAR HOLIDAYS REST DAYS Employers may require its employees to work 6 days Monday, New Year’s January 1 per week; Labor Day nearest day May 1 Employees are entitled to a rest period without pay Araw ng Monday, Maundy of not less than 24 consecutive hours for every 6 Kalayaan nearest thursday consecutive normal working days. June 12 Movable National Last Good Date Heroes’ Monday of friday  The rate for work on a special holiday will vary if Day August the special holiday work is rendered during the period Monday, between 12 midnight and 6am, and 10pm and 12 midnight Bonifacio nearest Eid Ul Fitr Movable of the special holiday. Day November Date 30 Christmas December Eidul Adha SERVICE INCENTIVE LEAVE Day 25 Every nonexempt employee who has rendered at least one year of service is entitled to a yearly incentive Monday, Araw ng Monday, leave (which is commonly replaced by vacation leave) of Rizal Day nearest Kagitingan nearest five days with pay. December June 9 30 **Requirement: only if AT LEAST 1 YEAR. Employers should pay their employees their regular The service incentive leave should be converted daily wage for ANY unworked regular holiday to its money equivalent and paid to the nonexempt EXCEPT: exempt employees employee by the employer IF not used or exhausted by When an employer asks a non-exempt employee the said employee at the end of the year. to work during a regular holiday, the employee SHOULD RECEIVE at least 200% of the applicable **Requirement: ONLY if NOT EXHAUSTED OR USED by the wage rate on the said regular holiday. end of the year The rate for work on a regular holiday will vary if As a general rule, an employer can regulate the the regular holiday work is rendered during the period schedule of the service incentive leave of its employees. between 12 midnight and 6am and 10pm and 12 midnight of the regular holiday. MEAL PERIOD Employers must give their employees AT LEAST SPECIAL HOLIDAYS ONE HOUR non-compensable time-off for regular meals. 3 SPECIAL DAY HOLIDAYS However, an employer can give employees a meal Benigno S. Aquion Jr. Monday, nearest August break of LESS THAN 1 HOUR IN CERTAIN CASES. Day 21 All Saints Day November 1 In any of these cases, the shorter meal period must be considered as COMPENSABLE HOURS WORKED Last Day of the Year December 31 and must not, in any case, be less than 20 minutes. Asa rule, employees who are not required to work on these special days are not, BY LAW, entitled to PRIVATE RETIREMENT BENEFITS compensation. Employees are entitled to receive such retirement benefits as he may have earned under existing But work performed on these days by non-exempt laws and any collective bargaining agreement and employees however, merits compensation equivalent other agreements. to the applicable wag rate plus at least 30% thereof. However, an employee’s retirement benefits If the special day also happens to be the non- under ANY collective bargaining and other agreements exempt employees’ scheduled rest day, the premium rate is increased to at least 30% of the applicable wage rate. SHALL NOT BE LESS THAN those provided by the Labor - 15-day salary of the employee Code based on his latest salary date; - Cash equivalent of five days of In the absence of any provision on optional service incentive leave; retirement in a collective bargaining - 1/12 of the 13th month pay agreement, an employer’s retirement plan, or due to the employee; and any other agreement: - All other benefits that the employer and employee may An employee has the option to retire and agree upon in computing the receive retirement pay upon reaching the age of 60 retirement pay. YEARS OR MORE, provided he has SERVED AT LEAST 5 YEARS WITH HIS EMPLOYER MATERNITY LEAVE **Requirement: Must be: Legal Basis: RA NO. 11210 which is known as the a. 60 years or more; and “105-day Expanded Maternity Leave Law”. b. Has served the employer for AT LEAST 5 YEARS. States that pregnant female employees, EXCEPTION: Underground Mining Employee whether single or married, are entitled to extended leave credits with full pay which are to be used in every If the employee (who is not an underground instance of pregnancy, miscarriage, or emergency mining employee) reaches the compulsory termination of pregnancy, regardless of frequency. retirement age of 65 years, his employer may retire him and pay him retirement pay. Maternity leave is given to female employees which are to be used DURING OR AFTER THEIR IN THE CASE OF UNDERGROUND MINING PREGNANCY; EMPLOYEES The benefit consists of ONE HUNDRED FIVE (105) a. they may retire and receive retirement DAYS of leave credits WITH FULL PAY, and with an pay UPON REACHING 50 YEARS OF option to EXTEND FOR AN ADDITIONAL THIRTY AGE and completing FIVE YEAR OF (30) DAYS WITHOUT PAY; SERVICE to their employer; and/or b. their employer may retire them and pay A Female solo parent has an additional FIFTEEN them retirement pay when they reach 60 (15) DAYS of leave credits WITH FULL PAY; YEARS (which is the COMPULSORY RETIREMENT AGE for For cases of miscarriage or emergency underground mining workers). termination of pregnancy: ○ The female employee is given SIXTY DAYS ***Why is there a difference between other types of employees (60) of leave credits WITH FULL PAY. and underground mining employees? = due to the nature of their work*** The availing of maternity is WITHOUT LIMITATION AS TO FREQUENCY Eligible retiring employees - Are entitled to a retirement pay The Benefits are: EQUIVALENT TO at least his half-month ○ Non-convertible to cash; and salary for every year of service, a fraction ○ Non-cumulative. of at least six months of service being considered as one whole year. PATERNITY LEAVE The half-month salary for retirement pay Legal Bases: RA NO 8187 also known as the purposes: Paternity Leave Act of 1996 ○ Generally includes the:  States that the leave benefits for paternity ○ These are also EXTENDIBLE WHEN THE leave, are leave credits extended to married male NECESSITY ARISES as specified in a employees “for purposes of enabling him to effectively PROTECTION ORDER ISSUED by an lend support to his wife in her period of recovery and/or APPROPRIATE authority. in the nursing of the newly-born child” (Sec. 3, RA 8187). The availment of the 10-day leave: Paternity leave is given to MARRIED MALE EMPLOYEES ○ Is at the option of the FEMALE employee, whose LEGAL WIFE underwent DELIVERY OR and such leave shall cover the days that the MISCARRIAGE; employee must attend to medical and legal concerns. Applies to ALL MALE EMPLOYEES REGARDLESS OF EMPLOYMENT STATUS; UNUSED LEAVES are: ○ NOT cumulative; and The leave consists of SEVEN (7) leave credits WITH ○ NON-convertible to cash. FULL PAY; Applies to the FIRST FOUR (4) DELIVERIES of the male LEAVE DUE TO GYNECOLOGICAL DISORDERS employee’s LEGAL WIFE, with whom HE IS COHABITING WITH; Female employees who have rendered CONTINUOUS aggregate employment services of The MARRIED male employee is REQUIRED TO BE AT LEAST 6 MONTHS for the LAST 12 MONTHS: COHABITING with his LEGAL wife, UNLESS there is a ○ Are entitled to the SPECIAL LEAVE BENEFIT JUSTIFYING circumstance; of up to 2 MONTHS WITH FULL PAY following SURGERY caused by gynecological The Benefits are: disorders. ○ Non-convertible to cash; and ○ Non-cumulative. Parental leave of NOT MORE THAN 7 working days 13TH MONTH PAY every year: ○ Shall be granted to ANY SOLO EMPLOYEE, in ALL “rank-and-file” employees of employers addition to leave privileges, under existing covered by the Revised Guidelines on the laws; and Implementation of the 13th Month Pay LAW: ○ As defined in the law, that is one who has rendered services of AT LEAST 1 YEAR. Are entitled to a BONUS called the “13th month pay”, regardless of: Changes in the status or circumstances of the - the amount of their monthly basic salary; parent claiming parental leave benefit: - Their designation or employment status; and ○ Like reasons of he/she is no longer left alone - The method by which their salary is paid with the responsibilities of parenthood, SHALL PROVIDED they have worked AT LEAST ONE TERMINATE his or her ELIGIBILITY for MONTH during a CALENDAR YEAR. this benefit. The 13th Month Pay “rank-and-file” employees ○ Should be equivalent to at least 1/12 of the total basic salary that the employee LEAVE DUE TO DOMESTIC VIOLENCE earned within a calendar year. Victims of violence against women and their children who is employed is: ○ The required 13 month pay SHOULD NOT BE ○ Entitled to PAID LEAVES of up to 10 DAYS in PAID LATER THAN DECEMBER 24 OF EACH addition to paid leaves under other laws; YEAR. and  3. Persons in the personal service of another in But an employer may give its rank-and-file relation to such workers; and employees half of the required 13th month pay before the opening of the regular school year in 4. Employers of those who are paid on PURELY June and the other half on or before December 24. commission, boundary or task basis, and those who are paid a FIXED amount for performing The frequency of payment of the 13th month pay SPECIFIC WORK, irrespective of the time may also be the subject of an agreement consumed in the performance thereof. between the employer and the collective bargaining agent of its rank-and-file employees. EXCEPT: Those workers who are paid on piece-rate basis, in which case their employer shall grant them RANKED-AND-FILE EMPLOYEES 13th month pay. ○ Are defined as those who are NOT MANAGERIAL EMPLOYEES. CLASSIFICATIONS OF EMPLOYMENT MANAGERIAL EMPLOYEES Regular employment ○ Those who are vested with powers or Project employment prerogatives to lay down and execute Seasonal employment management policies; Casual employment ○ and/or to hire, transfer, suspend, layoff, fixed-period employment recall, discharge, assign, or discipline employees; or ○ To effectively recommend such managerial actions. EXEMPTED EMPLOYERS refer to: 1. The government and any of its political subdivisions, including government-owned and controlled corporations; EXCEPT: corporations operating essentially as private subsidiaries of the government 2. Employers who are already paying their employees 13th month pay or more in a calendar year or its equivalent at the time of the issuance of PD 851; ***The term “its equivalent” as used in number 2 shall include Christmas bonus, midyear bonus, cash bonus, and other payments amounting to not less than 1/12th of the basic salary BUT shall not include: Cash and stock dividends, cost of living allowance, and all other allowances regularly by the employees, as well as non-monetary benefits.***  MODULE 4: CLASSIFICATIONS OF EMPLOYMENT - Determined at the time of the engagement of the employee; or - Where the work or service to be performed is seasonal IN NATURE and the employment is for the DURATION OF THE SEASON. When an employee is engaged to perform activities that are USUALLY necessary or desirable in the USUAL business or trade of the employer, the worker should be: - employed as a regular employee (i.e. an employee with an indefinite term) - UNLESS the employment relationship can qualify as an alternative employment arrangement. Other possible types of employment arrangements such as: - Project; - Seasonal; - Casual; and - Fixed-term Could be avail The validity of these alternative employment 1. REGULAR EMPLOYMENT arrangements depends on: - Whether the requisites have been met. Art. 295: Regular and Casual Employment. IF the requisites HAVE NOT BEEN MET: (1) The provisions of written agreement to the contrary - The ostensible alternative employment notwithstanding and regardless of oral agreement arrangement shall be disregarded and the of the parties, employee shall be deemed to be a REGULAR employee. - An employee shall be deemed regular where the employee has been engaged to perform activities which are USUALLY necessary or Before an employee becomes a regular employee, his desirable in the USUAL business or trade of the employer can: employer. - Require him to undergo probationary period. EXCEPT: where the employment has been FIXED for a The maximum length of the probationary period is: specific project or undertaking the completion or - 6 months; termination of which has been - counted from the date the new employee started working. Normally employers may not extend the probationary period. But once the new employee can work after the lapse of the probationary period:  - His employment will be deemed a REGULAR Robinsons Supermarket Corp. v. Ranchez, G.R. EMPLOYMENT by operation of law. No. 177937) Also, at the beginning of the probationary Art. 296, LC: The probationary trial or period SHALL NOT period, the employer: EXCEED 180 calendar days ( 6 months) - MUST notify the employee of the STANDARDS HE MUST SATISFY (a requirement under the law). EXCEPTIONS TO THE PROBATIONARY PERIOD: WHEN IT MAY - Otherwise, the employment will also be deemed a EXCEED 180 CALENDAR DAYS: REGULAR employment from the time the employee started working. 1. Apprenticeship agreement; and 2. Teaching personnel in the private sector ★ PROBATIONARY EMPLOYMENT REQUIREMENTS OF PROBATIONARY EMPLOYMENT: 1. The employer must communicate the regularization standards to the probationary employee; and Probationary employment shall not: 2. The employer must make such communication at the time of the probationary employee’s engagement. UNLESS is Note: “In other words, the employer is made to comply with two (2) requirements when dealing with a probationary employee: on a probationary basis MAY BE TERMINATED FOR: A JUST cause; or First, the employer must communicate the regularization standards to the probationary employee; and REASONABLE STANDARDS the second, the employer must make such communication at the time of the probationary employee’s engagement. of his IF THE EMPLOYER FAILS TO COMPLY WITH EITHER: An employee who is allowed to work AFTER a - the employee is deemed as a regular and NOT a probationary period: probationary employee. ” (Abbott Laboratories, Philippines v. Alacaraz, G.R. No. A probationary employment contract is an 192571, 23 July 2013). employment arrangement between an employer and a probationary employee. PROBATIONARY PERIOD IS DIFFERENT FOR TEACHING PERSONNEL IN THE PRIVATE SECTOR: “There is probationary employment when: - The employee upon his engagement is made to “A reality we have to face in the consideration of undergo a trial period; employment on probationary status of teaching - during which the employer determines his fitness to personnel is that: qualify for regular employment based on reasonable - They are NOT governed purely by the Labor Code. standards made known to him at the time of engagement. ” (Robinsons Galleria/ The Labor Code is supplemented with respect to the period of probation by special rules found in the Manual At the end of this 3rd year: of Regulations for Private Schools.” (Mercado - The employer may now decide whether to v. AMA Computer College-Paranaque City, Inc., G.R. extend to a permanent appointment to the No. 183572, 13 April 2010). employee; - Primarily on the basis of the employee having “Subject in all instances to compliance with the met the reasonable standards of competence Department and school requirements, the probationary and efficiency set by the employer. period for academic personnel SHALL NOT BE more than : For the entire duration of the three-year period: - 3 consecutive years of satisfactory service for - The teacher remains under probation. those in the elementary and secondary levels; Upon the expiration of his (the employee) contract of - 6 consecutive regular semesters of satisfactory employment, being simply on probation: service for those in the tertiary level; and - he cannot automatically claim security of tenure; and - 9 consecutive trimesters of satisfactory service - Compel the employer to renew his for those in the tertiary level where collegiate employment contract. courses are offered on a trimester basis.” It is when the yearly contract is renewed for the 3rd (Manual of Regulations for Private Schools) time that Sec. 93 of the Manual becomes operative, and the teacher then is entitled to: “The use of employment for fixed periods during the - Regular or permanent employment status. teacher’s probationary period: - Is likewise an accepted practice in the teaching It is important that the contract of probationary profession.” (Mercado v. AMA Computer employment specifies the period or term of its effectivity. College-Paranaque City, Inc., G.R. No. 183572, 13 April 2010). The failure to stipulate its precise duration could lead to: - - the interference that the contract is binding for “The common practice is: the full 3-year probationary period.” - for the employer and the teacher to enter into (Magis Young Achievers’ Learning Center v. Adelaida a contract; P. Manalo, G.R. No. 178835, 13 February 2009). - effective for one school year. At the end of the school year,: - the employer has the option not to renew the contract, particularly considering the teacher’s performance. 2. PROJECT EMPLOYMENT If the contract is not renewed: Art. 295: Regular and Casual Employment. - The employment relationship terminates. (2) An employment shall be deemed casual if: If the contract is renewed: - It is not covered by the preceding paragraph - Usually for the school year, the probationary (requisites for regular employee): employment continues. Provided: that any employee who has rendered AT LEAST Again, at the end of that period the parties may opt 1 YEAR OF SERVICE, whether such service is continuous or to renew or not to renew the contract. broken, shall be considered a REGULAR EMPLOYEE: - with respect to the activity in which he is If renewed: employed; and - This second renewal of the contract for another - his employment SHALL CONTINUE while such school year would then be the LAST YEAR -since activity exists. it would be the 3rd school year- of the probationary employment.  Project employment exists when: Nevertheless, “where the circumstances evidently show that - the period of employment has been fixed for a the employer imposed the period PRECISELY TO specified undertaking; PRECLUDE the employee from acquiring tenurial security: - the completion of which has been determined at - The law and this court (SC) will not hesitate to the time of the engagement of the employee. strike down or disregard the period; - As (it is) contrary to public policy, morals, etc.”. A Project employee may become a regular employee when: In such a case, the general restrictive rule under Art. 280 - He is CONTINUOUSLY rehired after the cessation of LC, WILL APPLY and the employee shall be deemed of a project; REGULAR.'' (Universal Robina Sugar Milling Corp. v. Acibo, - and if he performs/performed services that are G.R. No. 186439. 15 January 2019). VITAL, NECESSARY, AND INDISPENSABLE to the usual business or trade of the employer. Fixed-period employment is HIGHLY RESTRICTED and is SUBJECT TO the following requirements: 3. SEASONAL EMPLOYMENT 1. The employee must have WILFULLY and VOLUNTARILY entered the fixed-term employment Seasonal employment comes in when: contract WITHOUT ANY: - the work is to be performed ONLY at a CERTAIN - Duress; TIME OF THE YEAR; and - Force - The employment is for the duration of that time of - Intimidation; or the year ONLY. - Undue influence from the employer; and 2. The employer and the employee must have 4. CASUAL EMPLOYMENT bargained on EQUAL FOOTING on the terms and conditions of employment. Casual employment occurs when: - An employee is engaged to perform work that is Note: As much as possible, fixed-period employment MERELY INCIDENTAL to the business of the should involve: employer; and - HIGHLY EDUCATED PERSONS; or - Such work is for a DEFINITE PERIOD made known - HIGHLY TECHNICAL POSITIONS. to the employee at the time of his engagement. REASON FOR SUCH REQUIREMENTS: When a casual employee renders AT LEAST 1 YEAR OF - A fixed-period employment is highly restrictive since SERVICE, whether such service is continuous or not: such type of employment is possibly vulnerable to - He shall be considered a REGULAR employee; abuse. - with respect to the activity for which he is - In order to ensure that the rights of workers and employed; and laborers are protected in pursuit of full - His employment shall continue while such activity employment. exists. 5. FIXED-PERIOD EMPLOYMENT Fixed period employment occurs when: - The commencement and termination dates of the employment relationship have been SET BEFORE THE EMPLOYMENT RELATIONSHIP BEGINS.