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Labor Law
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Labor Law and Social Legislation
I. Fundamental Principles and Policies
A. Constitutional Provisions
What are the constitutional mandates with regard labor laws?
Secs. 9, 10, 11, 13, 14, 18, 20, Art. II
1. Sec. 9, Art. II – The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.
2. Sec. 10, Art. II –The State shall promote social justice in all phases of national development.
3. Sec. 11, Art. II –The State values the dignity of every human person and guarantees full respect for human rights.
4. Sec. 13, Art. II – The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well--being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.
5. Sec. 14, Art. II – The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.
6. Sec. 18, Art. II – The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.
7. Sec. 20, Art. II – The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.
Secs. 1, 4, 7, 8, 10, 16, 18(2), Art. III
8. Sec. 1, Art. III – No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
―An erring seaman is given a written notice of the charge against him and is afforded an opportunity to explain or defend himself. Xxx‖ (Sec. 17, POEA-SEC; Skippers Pacific, Inc. v. Mira; Maersk-Filipinas Crewing, Inc. vs. Avestruz, G.R. No. 207010, February 18, 2015).
9. Sec. 4, Art. III – No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
10. Sec. 7, Art III – The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development shall be afforded the citizen, subject to such limitations as may be provided by law.
11. Sec. 8, Art. III – The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.
12. Sec 10, Art. III – No law impairing the obligation of contracts shall be passed.
13. Sec. 16, Art. III – All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.
14. Sec. 18 (2), Art. III – No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.
Secs. 1, 2, 3, 13, 14, Art. XII
15. Sec. 1, Art. XIII – The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.
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Labor Law
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16. Sec. 2, Art. XIII – The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self--reliance.
17. Sec. 3, Art. XIII – The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self–organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision–making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.
Consistent with the State‘s avowed policy to afford full protection to labor as enshrined in the Constitution, the POEA-SEC was designed primarily for the protection and benefit of Filipino seafarers in the pursuit of their employment on board ocean-going vessels. As such, it is a standing principle that its provisions are to be construed and applied fairly, reasonably, and liberally in their favor (Racelis vs. United Philippine Lines, Inc., G.R. No. 198408, November 12, 2014).
18. Sec. 13, Art XIII – The State shall establish a special agency for disabled persons for their rehabilitation, self-development and self-reliance, and their integration into the mainstream of society.
19. Sec. 14, Art. XIII – The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such
facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.
B. What are the Civil Code provisions related laws to labor?
1. Art. 19 – Every person must in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
2. Art. 1700 – The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.
3. Art. 1701 –Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public.
The preferential treatment given by our law to labor, however, is not a license for abuse. It is not a signal to commit acts of unfairness that will unreasonably infringe on the property rights of the company. Both labor and employer have social utility, and the law is not so biased that it does not find a middle ground to give each their due (Milan, et al. vs. NLRC, G.R. No. 202961, February 4, 2015).
4. Art. 1702 – In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.
5. Art. 1703 – No contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid.
C. Labor Code
1. Art. 3. Declaration of Basic
Policy. – The State shall afford full protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of
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tenure, and just and humane conditions of work.
2. Art. 4. Construction in Favor of Labor. All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.
If doubts exist between the evidence presented by the employer and that of the employee, the scales of justice must be tilted in favor of the latter (Hocheng Philippines Corporation vs. Farrales, G.R. No. 211497, March18, 2015)
3. Art.166. Qualifications of Health Personnel. –The physicians, dentists and nurses employed by employers pursuant to this Chapter shall have the necessary training in industrial medicine and occupational safety and health.
The Secretary of Labor and Employment, in consultation with industrial, medical, and occupational safety and health associations, shall establish the qualifications, criteria and conditions of employment of such health personnel.
4. Art. 211. Record of Death or Disability
5. Art. 212. Notice of Sickness, Injury or Death
6. Art. 255. Unfair Labor Practices of Labor Organizations
7. Art. 277. Applicability to Farm Tenants and Rural Workers
II. Recruitment and Placement
A. Recruitment of Local and Migrant Workers
1. Illegal recruitment (Sec. 5, R.A. No. 10022)
a) License vs. authority
What is a license?
It is issued by DOLE authorizing a person or entity to operate a private employment agency.
What is an Authority?
It is a document issued by the DOLE authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.
Who are the persons prohibited from engaging the business of recruiting migrant workers?
1. Unlawful for any official or employee of the:
a. DOLE; b. POEA;
c. Overseas Workers Welfare Administration (OWWA);
d. DFA; and
e. Other government agencies involved in the implementation of this Act
2. Their relatives within the 4th civil degree of consanguinity or affinity, to engage, directly or indirectly in the business of recruiting migrant workers. (Sec. 8, R.A. 8042)
Who is a non-licensee / non-holder of authority?
Any person, corporation or entity:
1. Which has not been issued a valid license or authority to engage in recruitment and placement by the Secretary of Labor and Employment (SoLE); or
2. Whose license or authority has been suspended, revoked or cancelled by the POEA or the SoLE
What are the grounds for revocation of license?
1. Incurring an accumulated 3 counts of suspension by an agency based on final and executory orders within the period of validity of its license;
2. Violations of the conditions of license;
3. Engaging in acts of misrep- resentation for the purpose of securing a license or renewal;
4. Engaging in the recruitment or placement of workers to jobs harmful to the
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public health or morality or to the dignity of the country (Sec. 3, Rule I, Book VI, Rules and Regulations Governing Overseas Employment).
b) Essential elements of illegal recruitment
What are the elements of Illegal Recruitment? 1. Offender is a -licensee or non-holder of authority to lawfully engage in the recruitment/placement of workers
2. Offender undertakes:
a. Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contact services, promising or advertising for employment, locally or abroad, whether for profit or not (Art. 13[b]);or
b. Any of prohibited practices under Art.34
c) Simple illegal recruitment
It is considered simple illegal recruitment when it involves less than three (3) victims or recruiters.
d) Illegal recruitment in large scale
It is committed against 3 or more persons individually or as a group.
e) Illegal recruitment as economic sabotage
When is illegal recruitment considered as economic sabotage?
When it is committed:
1. By a syndicate – carried out by 3 or more persons conspiring/confederating with one another or
2. In large scale – committed against 3 or more persons individually or as a group.
(Sec. 6,10022)
f) Illegal recruitment vs. Estafa
Illegal recruitment is a malum prohibitum, whereas estafa is malum in se, meaning the criminal intent is NOT necessary for conviction in the former, but it is necessary in the latter.
It is not required that it be shown that the recruiter wrongfully represented himself as a licensed recruiter.
NOTE: It is enough that the victims were deceived as they relied on the misrepresentation and scheme that caused them to entrust their money in exchange of what they later discovered was a vain hope of obtaining employment abroad.
Accused defrauded another by abuse of confidence, or by means of deceit.
NOTE: It is essential that the false statement or fraudulent representation constitutes the very cause or the only motive which induces the complainant to part with the thing of value Illegal recruitment and estafa cases may be filed simultaneously or separately.
The filing of charges for illegal recruitment does not bar the filing of estafa, and vice versa. Double jeopardy will not set. g) Liabilities
What is the liability of the private employment agency and the principal or foreign-based employer?
They are jointly and severally liable for any violation of the recruitment agreement and the contracts of employment.
Note: This joint and solidary liability imposed by law against recruitment agencies and foreign employers is meant to assure the aggrieved worker of immediate and sufficient payment of what is due him. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the claims and damages (Becmen Service Exporter and Promotionv. Cuaresma, G.R. Nos. 182978-79, April 7, 2009).
What is the theory of imputed knowledge? A rule in insurance law that any information material to the transaction, either possessed by the agent at the time of the transaction or acquired by him before its
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completion, is deemed to be the knowledge of the principal, at least so far as the transaction is concerned, even though in fact the knowledge is not communicated to the principal at all.
(Leonor v. Filipinas Compania, 48 OG 243)
h) Pre-termination of contract of migrant worker
What are the effects of termination of overseas employment without just, valid or authorized cause?
The worker shall be entitled to the full reimbursement if his placement fee and the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less (Sec. 7, RA 10022)
2. Direct hiring What is Direct-hiring?
It is when an employer hires a Filipino worker for overseas employment without going through the POEA or entities authorized by the Secretary of Labor.
What is the ban on direct-hiring?
General Rule: An employer may only hire Filipino worker for overseas employment through POEA or entities authorized by DOLE.
Exception:
Direct hiring by:
1. International organizations; 2. Name hires;
3. Members of the diplomatic organizations; and
4. Other Employers as may be allowed by DOLE.
Why is direct-hiring prohibited?
1. To ensure the best possible terms and conditions of employment for the worker;
2. To assure the foreign Er that he hires only qualified Filipino workers; and
3. To ensure full regulation of employment in order to avoid exploitation.
B. Regulation and Enforcement
1. Suspension or cancellation of license or authority (Art. 35, Labor Code)
What are the grounds for suspension or cancellation of license?
1. Prohibited acts under Art. 34;
2. Publishing job announcements w/o POEA‘s approval;
3. Charging a fee which may be in excess of the authorized amount before a worker is employed;
4. Deploying workers w/o processing through POEA; and
5. Recruitment in places outside its authorized area (Sec. 4, Rule II, Book IV, POEA Rules).
2. Regulatory and visitorial powers of the DOLE secretary
What are the regulatory powers of the Secretary of Labor and Employment (SOLE)?
1. Restrict and regulate the recruitment and placement activities of all agencies; and 2. Issue orders and promulgate rules and
Regulations.
What constitute visitorial power?
1. Access to employer‘s records and premises at any time of the day or night, whenever work is being undertaken; 2. To copy from said records; and
3. Question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of the Labor Code and of any labor law, wage order, or rules and regulation issued pursuant thereto.
Give 4 instances where the visitorial power of the SLE may be exercised under the Labor Code.
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Power to:
1. Inspect books of accounts and records of any person or entity engaged in recruitment and placement; require it to submit reports regularly on prescribed forms and act in violations of any provisions of the LC on recruitment and placement. (Art. 37)
2. Have access to employer‘s records and premises to determine violations of any provisions of the LC on recruitment and placement. (Art. 128)
3. Conduct industrial safety inspections of establishments. (Art. 165)
4. Inquire into the financial activities of legitimate labor organizations (LLO) and examine their books of accounts upon the filing of the complaint under oath and duly supported by the written consent of at least 20% of the total membership of the LO concerned.
Can SOLE issue search warrants or warrants of arrest?
No. Only a judge may issue search and arrest warrants. Art 38 (c) of the Labor Code is unconstitutional inasmuch as it gives the SLE the power to issue search or arrest warrants. The labor authorities must go through the judicial process.
3. Remittance of foreign exchange earnings
What is the rule on remittance of foreign exchange earnings?
General Rule: It shall be mandatory for all OFWs to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries ranging from 50%-80% depending on the worker‘s kind of job. (Rule VIII, Book III,POEA Rules)
Exceptions:
1. The worker‘s immediate family members, beneficiaries and dependents are residing with him abroad;
2. Immigrants and Filipino professionals and employees working with the UN agencies or specialized bodies; and
3. Filipino servicemen working in U.S. military installations
(Resolution No. 1-83,
Inter-Agency Committee for
Implementation of E.O.857).
What is the effect of failure to remit?
1. Workers – Shall be suspended or removed from the list of eligible workers for overseas employment; and 2. Employers – Will be excluded from the overseas employment program. Private employment agencies shall face cancellation or revocation of their licenses or authority to recruit. (Sec. 9, E.O. 857
4. Prohibited activities
What are prohibited practices in recruitment/placement? (Art. 34.)
1. Furnishing or publishing any false notice/information/document related to recruitment/employment;
2. Failure to file reports required by SoLE; 3. Inducing or attempting to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions;
4. Recruitment/placement of workers in jobs harmful to public health or morality or to the dignity of the country;
5. Engaging directly or indirectly in the management of a travel agency; 6. Substituting or altering employment
contracts without approval of DOLE;
7. Charging or accepting any amount
greater than that specified by DOLE or make a worker pay any amount greater than actually received byhim; 8. Committing any act of
misrepresentation to secure a license or authority;
9. Influencing or attempting to influence any person/entity not to employ any worker who has not applied of employment through his agency; 10. Obstructing or attempting to obstruct
inspection by SoLE or by his representatives;
11. Withholding or denying travel documents from applicant workers before departure for monetary
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considerations other than authorized by law;
12. Granting a loan to an OFW which will be used for payment of legal and allowable placement fees;
13. Refusing to condone or renegotiate a loan incurred by an OFW after his employment contract has been prematurely terminated through no fault of his or her own;
14. For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and
15. For a recruitment/manning agency or a foreign principal/ Er to pass on the OFW or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage
16. Imposing a compulsory and exclusive arrangement whereby an OFW is required to:
a. Avail a loan only from specifically designated institutions, entities or persons;
b. To undergo health examinations only from specifically designated medical, entities or persons, except
seafarers whose medical examination cost is shouldered by the shipowner; and
c. To undergo training of any kind only from designated institutions, entities or persons, except for recommendatory trainings
mandated by
principals/shipowners (Sec. 6, R.A. 10022).
III. Labor Standards A. Hours of work
1. Coverage/Exclusions (Art. 82, Labor Code) Who determines working conditions?
Generally, they are determined by the employer, as he is usually free to regulate, according to his discretion, all aspects of employment.
What is the limitation on the employer‘s power to regulate working conditions?
It must be done in good faith and not for the purpose of defeating or circumventing the rights of the employees. Such are not always absolute and must be exercised with due regard to the rights of labor.
Note: One‘s employment, profession, trade or calling is a property right and the wrongful interference therewith is an actionable wrong.
When does the condition on employment under the Labor Code apply?
Only if an Employer-Employee relationship exists.
Who are the employees that are covered by the conditions of employment?
General Rule: It applies to all Ee‘s in all establishments.
Exceptions:
1. Gov‘t employees; 2. Managerial employees; 3. Field personnel;
4. The employer‘s family members who depend on him for support;
5. Domestic helpers and persons in the personal service of another; and 6. Workers who are paid by results as
determined under DOLE regulations. Who are government employees?
They are Employees of the: 1. National Government;
2. Any of its political subdivisions; and
3. Including those employed in GOCCs with original charters.
Who are managerial employees?
Those whose primary duty consists of the management of the establishment in which they are employed or a department or subdivision thereof, and other officers or members of the managerial staff.
They must meet all of the following conditions, namely:
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1. Primary duty: management of the establishment in which they are employed or of a department or subdivision thereof;
2. Customarily or regularly direct the work of 2 or more employees;
3. Has the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any change of status of other employees are given particular weight;
4. Execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge;
5. Execute under general supervision special assignment and tasks; and
6. Do not devote more than 20% of their hours worked to activities which are not directly and closely related to performance of the work described.
(Art. 82[2])
Who are field personnel? They are:
1. non-agricultural employees;
2. who regularly perform their duties; 3. away from the principal place of
business or branch office of the employer; and
4. whose actual hours of work in the field cannot be determined with reasonable certainty.
Who are domestic helpers and persons in the personal service of another?
Those who:
1. perform services in the employers (Er) home which are usually necessary or desirable for the maintenance or enjoyment thereof; or
2. minister to the personal comfort, convenience or safety of the employers as well as the members of his employers household.
What are the 3 groups of employees (employees) under the LC?
1. Managerial employees - One who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire, transfer,
suspend, lay-off, recall, discharge, assign or discipline employees;
2. Supervisory employees those who in the interest of the employers, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment; and 3. Rank-and-File employers - all
employers not falling within any of the above definitions. (Art. 212[m])
2. Normal hours of work
What are the normal hours of work of an employee?
It should not exceed 8 hours in a general working day.
Note: Normal hours of work may be shortened or compressed.
a) Compressed work week What is a compressed workweek?
The normal workweek is reduced to less than 6 days but the total number of work hours of 48 hours per week shall remain. The normal workday is increased to more than 8 hours but not to exceed 12 hours, without corresponding overtime premium. The concept can be adjusted accordingly depending on the normal workweek of the company. (Department Advisory Order No. 2, Series of 2009)
When is the implementation of a compressed work week valid?
The validity of the reduction of working hours can be upheld when the arrangement is temporary, it is a more humane solution instead of a retrenchment of personnel, there is notice and consultations with the workers and supervisors, a consensus is reached on how to deal with deteriorating economic conditions and it is sufficiently proven that the company was suffering from losses.
Under the Bureau of Working Conditions‘ bulletin, a reduction of the number of regular working days is valid where the arrangement is resorted to by the
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employer to prevent serious losses due to causes beyond his control, such as when there is a substantial slump in the demand for his goods or services or when there is lack of raw materials. There is one main consideration in determining the validity of reduction of working hours – that the company was suffering from losses. A year of financial losses would not justify a reduced workweek.
(Linton Commercial v. Hellera, G.R. No. 163147,October 10, 2007)
Under what conditions may a "compressed work week" schedule be legally authorized as an exception to the "8-hour a day" requirement under the LC?
1. There is no diminution in their weekly or monthly take home pay or fringe benefits;
2. The benefits are more than or at least commensurate or equal to what is due the Employees without the compressed work week;
3. OT pay will be due and demandable when they are required to work on those days which should have ceased to be working days because of the compressed work week schedule; 4. No strenuous physical exertion or that
they are given adequate rest periods; and
5. It must be for a temporary duration as determined by the DOLE. (2005 Bar Question)
What are the requisites for adoption of compressed workweek?
1. The Employer shall notify the DOLE through the Regional Office which has jurisdiction over the workplace, of the adoption of compressed workweek. 2. The notice shall be in Report Form
attached to the advisory.
3. The Regional Office shall conduct an ocular visit to validate whether the adoption of the flexible work arrangements is in accordance with this issuance. (Department Advisory Order No. 2, Series of 2009)
3. Meal break
What is the duration of the meal period? Every Employer shall give his Employees not less than 60 minutes or 1 hour
time-off for regular meals. Is the meal period compensable?
Being time-off, it is not compensable. Employee must be completely relieved from duty.
When is the meal period considered compensable?
1. It is compensable where the lunch period or meal time:
2. Is predominantly spent for the employers benefit; or
3. Where it is less than 20 minutes
Note: Where during meal period, the laborers are required to stand by for emergency work, or where the meal hour is not one of complete rest, such is considered OT. (Pan Am vs. Pan Am Employees Association, G.R. No. L-16275, Feb. 23, 1961)
Rest periods or coffee breaks running from 5 to 20 minutes shall be considered as compensable working time. (Sec. 7, Rule I, Book III, IRR)
Are meal periods provided during OT work compensable?
Yes, since the 1 hour meal period (non-compensable) is not given during OT work because the latter is usually for a short period and to deduct from the same would reduce to nothing the Employees OT work. Thus, the 1 hour break for meals during OT should be treated as compensable.
What are the instances where meal periods shortened to not less than 20 minutes is compensable or not compensable?
1. Compensable – At the instance of Employer, when:
a. Work is non-manual in nature or does not involve strenuous physical exertion; b. Establishment regularly operates less than
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c. Work is necessary to prevent serious loss of perishable goods; and
d. Actual or impending emergency or there is urgent work to be performed on machineries and equipment to avoid serious loss which the Employer would otherwise suffer. (Sec. 7, Rule I, Book III, IRR)
2. Not Compensable – Employee requested for the shorter meal time so that he can leave work earlier than the previously established schedule. Requisites:
a. Employees voluntarily agree in writing and are willing to waive OT pay for the shortened meal period;
b. No diminution in the salary and other fringe benefits of the Employees which are existing before the effectivity of the shortened meal period;
c. Work of the Employees does not involve strenuous physical exertion and they are provided with adequate coffee breaks in the morning and afternoon;
d. Value of the benefits derived by the Employees from the proposed work arrangements is equal to or commensurate with the compensation due them for the shortened meal period as well as the OT pay for 30 minutes as determined by the Employees concerned;
e. OT pay will become due and demandable after the new time schedule; and
f. Arrangement is of temporary duration.
4. Waiting time
When is an Employee considered working while on call?
When Employee is required to remain on call in the Employers premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose.
When idle time is considered working time? When the employee is idle or inactive by reason of interruptions beyond his control shall be considered working time.
When is waiting time considered working time?
a. If waiting is an integral part of his work, or
b. The employee is required or engaged by the employer to wait (engaged to wait)
Note: The controlling factor is whether waiting time spent in idleness is so spent predominantly for the employer‘s benefit or for the employee.
When is waiting time not considered working time?
When the employee is waiting to be engaged: idle time is not working time; it is not compensable.
When is travel time considered working time? 1. Travel from home to work
General Rule: Normal travel from home to work is not working time.
Exceptions:
a. Emergency call outside his regular working hours where he is required to travel to his regular place of business or some other work site;
b. Done through a conveyance provided by the employer;
c. Done under the supervision and control of the employer;
d. Done under vexing and dangerous circumstance.
2. Travel that is all in a day‘s work – time spent in travel as part of the employees principal activity
3. Travel away from home
General Rule:
a. Travel that requires an overnight stay on the part of the employee when it cuts across the employee‘s workday is clearly working time;
b. The time is not only hours worked on regular workdays but also during corresponding working hours on non-working days. Outside of these regular working hours, travel away from home is not considered working time.
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Exception: During meal period or when employee is permitted to sleep in adequate facilities furnished by the employer.
What are the conditions in order for lectures, meetings and training programs to be not considered as working time?
All of the ff. conditions must be present:
1. Attendance is outside of the employers regular working hours;
2. Attendance is in fact voluntary; and 3. The employee does not perform any
productive work during such attendance.
5. Overtime work, overtime pay
What is overtime work (OT)?
Work performed beyond 8 hours within the worker‘s 24 hour workday.
Note: Express instruction from the employer to the employee to render OT work is not required for the employee to be entitled to OT pay; it is sufficient that the employee is permitted or suffered to work. However, written authority after office hours during rest days and holidays are required for entitlement to compensation.
What is a work day?
The 24-hour period which commences from the time the employee regularly starts to work.
Note: Minimum normal working hours fixed by law need not be continuous to constitute the legal working day.
What is the rationale behind OT pay?
Employee is made to work longer than what is commensurate with his agreed compensation for the statutory fixed or voluntarily agreed hours of labor he is supposed to do. (PNB vs. PEMA and CIR,G.R. No. L-30279, July 30, 1982)
Discourages the employer from requiring such work thus protecting the health and well-being of the worker, and also tend to remedy unemployment by encouraging employers to employ others workers to do
what cannot be accomplished during the normal hours of work.
Distinguish Overtime pay from premium pay.
Overtime pay is the additional compensation for work performed beyond 8 hours on ordinary days (within the worker‘s 24-hour workday). On the other hand, premium pay is the additional compensation for work performed within 8 hours on days when normally he should not be working (on non-working days, such as rest days and special days.) But additional compensation for work rendered in excess of 8 hours during these days is also considered OT pay.
Overtime Pay Rates:
OT during a regular working day
Additional compensation of 25% of the regular wage.
OT during a holiday or rest day
Rate of the first 8 hours worked on plus at least 30% of the regular wage (RW) If done on a special holiday OR rest day:
30% of 130% of RW
If done on a special holiday AND rest day: 30% of 150% of RW
if done on a regular holiday: 30% of 200% of RW
May an employee be compelled to render OT work?
General Rule: No. OT work is voluntary. Exception: Compulsory OT work in any of the following situations:
1. Urgent work to be performed on machines and installations in order to avoid serious loss or damage to the employer or some other cause of similar nature;
2. Work is necessary to prevent loss or damage to perishable goods;
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3. In case of imminent danger to the public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity;
4. Country is at war;
5. Completion or continuation of the work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business operations of the employer;
6. Any other national or local emergency has been declared; and
7. Necessary to prevent loss of life or property.
Note: There should be payment of additional compensation. employees refusal to obey the order of the employer constitutes insubordination for which he may be subjected to disciplinary action.
6. Night work (R.A. No. 10151), Night shift differential
What is night work?
Any and all work rendered between 6:00 pm and 6:00 am. (National Rice & Corn Corp. v. NARIC, 105Phil 891)
What is night work prohibition with regard to women workers?
General Rule: No woman regardless of age shall be employed or permitted to work, with or without compensation in any:
1. Industrial undertaking or branch thereof between 10pm and 6am of the following day;
2. Commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and 6am of the following day; and 3. Agricultural undertaking at night time
unless she is given period of rest not less than 9 consecutive hours.
Exceptions:
1. Actual or impending emergencies a. Caused by serious accident, fire, flood,
typhoon, earthquake, epidemic, other disasters, or calamity;
b. To prevent loss of life or property; or c. In case of force majeure; or
d. Imminent danger to public safety. 2. Urgent work
a. To be performed on machineries, equipment or installations; and
b. To avoid serious loss which the employer would otherwise suffer. 3. Work is necessary to prevent serious
loss to perishable goods 4. Woman Employees
a. Holds a responsible position of managerial or technical nature; or b. Has been engaged to provide health
and welfare services 5. Nature of the work
a. Requires the manual skill and dexterity of women workers; and
b. The same cannot be performed with equal efficiency by male workers 6. Women Employees are immediate
members of the establishment or undertaking
7. In analogous cases exempted by the SLE in appropriate regulations (Art. 131)
Note: The operation of Call Contract Centers
which provides offshore case solutions to US based clients who phone in to conduct product inquiries and technical support, operating for 24/7, has been exempted from the prohibition considering the inevitable time difference between the US and the Phils. and the peak time for its operation is between 8:00 pm to 10:00 am Manila time, thereby making it necessary for 80% of its employees, including women, to work during graveyard shift. (BWC-WHSD Opinion No. 491, s. 2003)
What is night shift differential (NSD)?
It is additional compensation of not less than 10% of an employee‘s regular wage for every hour worked between 10:00 pm to 6:00 am, whether or not such period is part of the worker‘s regular shift.
Who are entitled to NSD?
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Exceptions:
1. Employees of the Governmentt and any of its political subdivisions, including GOCC‘s;
2. Retail and service establishments regularly employing not more than 5 workers;
3. Includes task and contract basis;
4. Domestic helpers and persons in the personal service of another;
5. Field personnel and employees whose time and performance is unsupervised by the employer; and
6. Managerial employees.
7. Part-time work
Hours of work of part-time workers
a. Payment of wage should be in proportion the remuneration or earnings, however designated, for work done;
b. or to be done or for services rendered or to be rendered;
c. It is capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same;
d. It is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered; and
It includes the fair and reasonable value, as determined by the Secretary of Labor and Employment, of board, lodging, or other facilities customarily furnished by the employer to the employee. ―Fair and only to the hours worked.
8. Contract for piece work (see Civil Code)
Article 1713 of the Civil Code defines a contract for a piece of work thus:
―By the contract for a piece of work the contractor binds himself to execute a piece of work for the employer, in consideration of a certain price or compensation. The contractor may either employ only his labor or skill, or also furnish the material.‖
B. Wages
1. Attributes of Wage
It is reasonable value‖ shall not include any profit to the employer, or to any person affiliated with the employer.
2. ―Wage‖, ―salary‖ and ―pay‖; distinction – they are synonymous in meaning and usage. 3. Commission – may or may not be treated as part of wage depending on the circumstances. 4. Actual work is the basis of claim for wages (No work, no pay‖).
1. Wage vs. salary
Wage Salary
Compensation for manual labor (skilled or unskilled) also known as ―blue collared workers‖, paid at stated times and measured by the day, week, month or season.
Paid to ―white collared workers‖ and denotes higher
degree of
employment or a superior grade of services and implies a position in office. Considerable pay for
a lower and less responsible character of employment.
Out gesture of a larger and more important service. General Rule: Not
subject to execution Exception: Debts incurred for food, shelter, clothing and medical attendance
Subject to execution.
2. Minimum wage defined, Minimum wage setting
What are the standards or criteria for minimum wage setting?
In the determination of such regional minimum wages, the Regional Board shall, among other relevant factors consider the following:
1. The demand for living wages;
2. Wage adjustment vis-a-vis the consumer price index;
3. The cost of living and changes or increases therein;
4. The needs of workers and their families;
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5. The need to induce industries to invest in the countryside;
6. Improvements in standards of living; 7. The prevailing wage levels;
8. Fair return of the capital invested and capacity to pay of employers;
9. Effects on employment generation and family income; and
10. The equitable distribution of income and wealth along the imperatives of economic and social development. What is salary ceiling method?
It is a method of minimum wage adjustment whereby the wage adjustment is applied to employees receiving a certain denominated ceiling. In other words, workers already being paid more than the existing minimum wage are also to be given a wage increase (ECOP v. NWCP, G.R. No. 96169, Sep. 24,1991).
What is a floor wage method?
It involves the fixing of a determinate amount to be added to the prevailing statutory minimum wage rates.
3. Minimum wage of workers paid by results a) Workers paid by results
Who are workers paid by results? They are:
1. paid based on the work completed; and
2. not on the time spent in working 3. including those who are paid on
piece-work, ―takay‖, ―pakiaw‖, or task basis if their output rates are in accordance with the standards prescribed.
b) Apprentices c) Learners
d) Persons with disability 4. Commissions
What commissions are deemed part of salary? Wages-or-sales percentage type should be included in the 13th month pay
computation. An example of which is the sales commission earned by salesmen who make or close a sale of duplicating machines distributed
by a corporation (Philippine Duplicators v. NLRC, GR No. 110068, February 15, 1995).
What commissions are not deemed part of salary?
Profit-sharing or bonus type commissions may be excluded when determining the ―basic salary‖. An example of which is are commissions paid to or received by medical representatives or by rank-and-file employees as productivity bonus (Boie-Takeda Chemicals, Inc. v. Dela Serna, GR No. 92174, December 10, 1993 and Philippine Fuji Xerox Corp. v. Trajano GR No. 102552, December 10, 1993).
5. Deductions from wages
What is the rule in wage deductions? General Rule: It is strictly prohibited Exceptions:
1. Deductions under Art. 113 for insurance premiums;
2. Union dues in cases where the right of the worker or his union to check off has been recognized by the employer or authorized in writing by the individual worker concerned (Art. 113).
Art. 241(o) provides that special assessments may be validly checked-off provided that there is an individual written authorization duly signed by every employee;
3. Deductions for SSS, Medicare and Pag-ibig premiums;
4. Taxes withheld pursuant to the Tax Code;
5. Deductions under Art. 114 for loss or damage to tools, materials or equipments;
6. Deductions made with the written authorization of the employee for payment to a third person. (Sec 13, Rule VIII, Book III of the IRR);
7. Deductions as disciplinary measures for habitual tardiness (Opinion dated March 10,1975 of the SLE);
8. Agency fees under Art. 248(e);
9. Deductions for value of meals and facilities freely agreed upon;
10. In case where the employee is indebted to the employer where such
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indebtedness has become due and demandable (Art. 1706, Civil Code); 1. The employer is authorized to
withhold wages for debts due. ―Debt‖ in this case refers to any obligation due from the employee to the employer. It includes any accountability that the employee may have to the employer. There is no reason to limit its scope to uniforms and equipment (Milan et al. vs. NLRC, G.R. No. 202961, February 4, 2015).
11. In court awards, wages may be subject of execution or attachment, but only for debts incurred for food, shelter, clothing, and medical attendance (Art. 1703, Civil Code); and
12. Salary deduction of a member of a legally established cooperative (R.A. 6938, Art. 59)
6. Non-diminution of benefits
What is the concept of non-diminution (ND) of benefits?
General Rule: Benefits being given to employees cannot be taken back or reduced unilaterally by the employer because the benefit has become part of the employment contract, whether written or unwritten.
Exception: To correct an error, otherwise, if the error is not corrected for a reasonable time, it ripens into a company policy and employees can demand it as a matter of right. When is ND of benefits applicable?
It is applicable if it is shown that the grant of benefit:
1. Is based on an express policy of the law; or
2. Has ripened into practice over a long period of time and the practice is consistent and deliberate and is not due to an error in the construction/ application of a doubtful or difficult question of law.
7. Facilities vs. supplements
Distinction between Facilities and Supplements Facilities Supplements
Items of expenses Extra remuneration
necessary for the laborer‘s and his family‘s existence and subsistence Note: Does not
include tools of
trade or
articles/services primarily for the benefit of the employer or necessary to the conduct of the employer‘s business or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages
(Atok Big Wedge Mining Co. v. Atok Big Wedge Mutual Benefit Assoc, G.R. No. L-7349, July 19, 1955).
Forms part of the
wage Independent of wage Deductible from
wage Not wage deductible For the benefit of the
worker and his family.
Granted for the convenience of the employer.
7. Wage Distortion / Rectification What is wage distortion?
A situation where an increase in wage results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among the employee-groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service or other logical bases of differentiation.
What are the elements of Wage Distortion? 1. An existing hierarchy of positions with
corresponding salary rates;
2. A significant change or increase in the salary rate of a lower pay class without a corresponding increase in the salary rate of a higher one;
3. The elimination of the distinction between the 2 groups or classes; and 4. The WD exists in the same region of
the country. (Alliance Trade Unions v. NLRC, G.R. No. 140689, Feb. 17, 2004)
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C. Rest Periods 1. Weekly rest day
What is the right to weekly rest day?
Every employer shall give his employees a rest period of not less than 24 consecutive hours after every 6 consecutive normal work days. (Sec. 3, Rule III, Book III, IRR)
What is the scope of weekly rest day?
It shall apply to all employers whether operating for profit or not, including public utilities operated by private persons. (Sec. 1, Rule III, Book III, IRR)
Who determines the weekly rest day?
General Rule: Employer shall determine and schedule the weekly rest day of his employee. Exceptions:
1. CBA;
2. Rules and regulations as the SLE provides; and
3. Preference of employee based on religious grounds –employee shall make known his preference in writing at least 7 days before the desired effectivity of the initial rest day so preferred (Sec. 4(1), Rule III, Book III, IRR)
Exception to exception no. 3: Employer may schedule the weekly rest day of his choice for at least 2 days in a month if preference of the employee will inevitably result in:
a. serious prejudice to the operations of the undertaking; and
b. the employer cannot normally be expected to resort to other remedial measures. (Sec. 4(2), Rule III, Book III, IRR
2. Emergency Rest Day Work
Can an employee be compelled to work on his rest day?
General Rule: No.
Exceptions: (UNA-A-PAW)
1. Urgent work to be performed on the machinery, equipment or installation, to avoid serious loss which the employer would otherwise suffer; 2. Nature of work requires continuous
operations for 7 days in a week or more and stoppage of the work may result in irreparable injury or loss to the employer;
3. Abnormal pressure of work due to special circumstances, where the employer cannot be ordinarily expected to resort to other measures; 4. Actual or impending emergencies
(serious accident, fire, flood, typhoon, earthquake, etc.)
5. Prevent loss or damage to perishable goods;
6. Analogous or similar circumstances as determined by the SLE; and
7. Work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.
D. Holiday pay / Premium pay What is premium pay?
It is the additional compensation for work rendered by the employee on days when normally he should not be working such as special holidays and weekly rest days.
Can the Employer and Employre agree on the rate of premium pay other than that provided by law?
Yes. Nothing shall prevent the Er and his Ee or their representatives from entering into any agreement with terms more favorable
to the Ees Provided: It shall not be used to diminish any benefit granted to the Ees under existing laws, agreements and voluntary Er practices. (Sec. 9,Rule III, Book III, IRR)
What is holiday pay?
It is a premium given to employees (Ees) pursuant to law even if he has not been suffered to work on a regular holiday. It is limited to the 11 regular holidays, also called legal holidays listed by law.
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The employee (Ee) should not have been absent without pay on the working day preceeding the regular holiday.
What are the classes of special day?
1. National Special Public Holiday
General Rule: Non working days
Exception: Otherwise declared by the President
2. Local Special Public Holiday – Regular working day. (LOI 814 as amended by LOI 1087)
What are regular holidays?
They are compensable whether worked or unworked subject to certain conditions. They are also called legal holidays. The following are considered regular holidays (PresidentialProclamation No. 18).
REGULAR HOLIDAYS DATE New Year‘s Day January 1 Maundy Thursday April 2 Good Friday April 3
Eid‘l Fitr Movable Date
Araw ng Kagitingan April 9
Labor Day May 1
Independence Day June 12
National Heroes Day Aug. 31 (last Monday of August) Bonifacio Day Nov. 30
Christmas Day December 25 Rizal Day Dec. 30
Distinction between Regular and Special Holiday
Regular holiday Special holiday
If Unworked
Regular pay (subject to certain conditions for daily paid Ee‘s) No Pay If worked 2x regular pay (200%) + 30% premium pay of 100% regular wage Other matters
Set by law Set by proclamation
Limited to those provided under Art. 94, LC
Not exclusive
Who are entitled to Holiday Pay?
General Rule: All employees are entitled.
(Sec.1, Rule IV, Book III, IRR)
Exceptions:
1. Gov‘t Ees and any of its political subdivisions, including GOCCs (with original charter);
2. Retail and service establishments regularly employing less than 10 workers;
3. Domestic helpers and persons in the personal service of another;
4. Employee engaged on task or contract basis or purely commission basis; 5. Members of the Family of the Er who
are dependent on him for support; 6. Managerial Ee and other member of
the managerial staff;
7. Field personnel and other Ee whose time and performance are unsupervised by the Er; and
8. Ee paid fixed amount for performing work irrespective of the time consumed in the performance thereof. (Sec. 1, Rule IV, Book III, IRR)
What are the rates of compensation for rest day, Sunday or holiday work?
Instances Rates of additional Compensation
Work on a scheduled rest day
+ 30% Premium Pay (PP) of 100% regular wage (Sec. 7, Rule III, Book III, IRR)
Work has no regular
workdays and rest days (If performed on Sundays and Holidays)
+ 30% PP of 100% RW
(Sec. 7, Rule III, Book III, IRR)
Work on a Sunday (If Ee‘s scheduled rest day)
+ 30% PP of 100% RW
(Sec. 7, Rule III, Book III, IRR) Work performed on any Special Holiday 1st 8 hrs: + 30% PP of 100% RW Excess of 8 hrs: + 30% of hourly rate on said date.
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(M.C. No. 10, Series of 2004) Work performed on a Special Holiday and same day is the scheduled rest day 1st 8 hrs: + 50% PP of 100% regular wage Excess of 8 hrs: + 30% of hourly rate on said date (M.C. No. 10, Series of 2004).Work
performed on a Special Working Holiday
Ee is only entitled to his basic rate. No PP is required.
Reason: Work performed is considered work on ordinary working days. (Sec. 7, Rule III, Book III, IRR)
1.) Coverage, exclusions
To whom does the title on wages apply? General Rule: It applies to all employees Exception:
1. Farm tenancy or leasehold;
2. Household or domestic helpers, including family drivers and persons working in the personal service of another;
3. Home workers engaged in needlework or in any cottage industry duly registered in accordance with law; 4. Workers in duly registered
cooperatives when so recommended by the Bureau of Cooperative Development and upon approval of the Secretary of Labor and Employment; and
5. Workers of a barangay micro business enterprise (R.A. 9178)
2. Teachers, piece workers, takay, seasonal workers, seafarers
What are the HPs of certain employees?
Employees Rule Private school teachers (Faculty members of colleges and universities) 1. RH during semestral vacations - Not entitled to HP 2. RH during Christmas vacation - Shall be paid HP Ee paid by: 1. results or 2. output (Piece work payment)
HP shall not be less than his average daily
earnings for the last 7
actual work days preceding the RH.
Provided: HP shall not be less than the minimum wage rate. Seasonal Workers
May not be paid the required HP during offseason where they are not at work. Workers having no
regular work days Shall be entitled to HP Seafarers Shall be entitled to HP E. Leaves
1. Service Incentive Leave What is service incentive leave?
It is 5 days leave with pay for every employee who has rendered at least 1 yr of service. It is commutable to its money equivalent if not used or exhausted at the end of year.
Who are entitled to SIL?
General Rule: Applies to every Ee who has rendered at least 1 year of service.
Exceptions:
1. Government Ees and any of its political subdivisions including GOCCs; 2. Those already enjoying the benefit; 3. Domestic helpers and persons in the
personal services of another;
4. Those already enjoying vacation leave with pay of at least 5 days;
5. Managerial Ees;
6. Field personnel and other Ees whose performance is unsupervised by the Er; 7. Employed in establishments regularly
employing less than 10 workers; 8. Exempt establishments; and
9. Engaged on task or contract basis, purely commission basis, or those who are paid in a fixed amount of performing work irrespective of the time consumed in the performance thereof. (Art. 95[b])
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Are part-time workers entitled to the full benefit of the yearly 5 day SIL?
Yes. Art. 95 of Labor Code speaks of the number of months in a year for entitlement to said benefit (Bureau of Working Conditions Advisory Opinion to Phil. Integrated Exporter‘s, Inc.).
Are piece-rate workers entitled to the full benefit of the yearly 5 day SIL?
It depends.
1. Yes. Provided:
a. They are working inside the premises of the employer; and b. Under the direct supervision of
the Er.
2. No. Provided:
a. They are working outside the premises of the Er;
b. Hours spent in the performance of work cannot be ascertained with reasonable 3. certainty; and
a. They are not under the direct supervision of the Er
Does it apply to Ees with salaries above minimum wage?
No. The difference between the minimum wage and the actual salary received by the Ees cannot be deemed as their 13th month pay and SIL pay as such difference is not equivalent to or of the same import as the said benefits contemplated by law. (JPL Marketing Promotions v. CA, G.R. No. 151966,July 8, 2005.)
2. Maternity Leave
What is maternity leave benefit?
A covered female employee (Ee) is entitled to a daily maternity benefit equivalent to 100% of her present basic salary, allowances and other benefits or the cash equivalent of such benefits for 60 days or 78 days in case of caesarian delivery.
What are the requirements in order that maternity benefits may be claimed?
1. There is childbirth, abortion or miscarriage; and
2. She has paid at least 3 monthly contributions.
What are the conditions?
1. The Ee shall have notified her employer (Er) of her pregnancy and the probable date of her childbirth which notice shall be transmitted to the SSS;
2. The payment shall be advanced by the Er in 2 equal installments within 30 days from the filing of the maternity leave application;
3. In case of caesarian delivery, the Ee shall be paid the daily maternity benefit for 78 days;
4. Payment of daily maternity benefits shall be a bar to the recovery of sickness benefits for the same compensable period of 60 days for the same childbirth, abortion, or miscarriage;
5. The maternity benefits provided under Section 14-A shall be paid only for the first four deliveries;
6. The SSS shall immediately reimburse the Er of 100% of the amount of maternity benefits advanced to the Ee by the Er upon receipt of satisfactory proof of such payment and legality thereof; and
7. If an Ee should give birth or suffer abortion or miscarriage without the required contributions having been remitted for her by her Er to the SSS, or without the latter having been previously notified by the Er of the time of the pregnancy, the Er shall pay to the SSS damages equivalent to the benefits which said Ee would otherwise have been entitled to, and the SSS shall in turn pay such amount to the Ee concerned.
3. Paternity Leave What is paternity leave?
It refers to the benefits granted to a married male employee allowing him not to report for work for 7 days but continues to earn the compensation therefore, on the condition that his spouse has delivered a child or suffered a miscarriage for purposes of enabling him to effectively lend support to his
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wife in her period of recovery and/or in the nursing of the newly-born child.
What are the requirements in order to avail paternity leave?
The male employee (Ee) applying for paternity leave shall:
1. Notify his employer (Er) of the pregnancy of his legitimate spouse; and
2. The expected date of such delivery.
What are the conditions for entitlement to paternity leave?
The male Ee is;
1. Ee of private or public sector;
2. Only for the first 4 deliveries of legitimate spouse with whom he is cohabiting; and
3. Notify his Er of the pregnancy of his legitimate spouse and the expected date of such delivery.
Note: For purposes of this Act, delivery shall include childbirth or any miscarriage.
4. Parental Leave (R.A. No. 8972) What is parental leave?
Leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities -where physical presence is required.
In addition to leave privileges under existing laws, parental leave of not more than 7 working days every year shall be granted to any solo parent Ee who has rendered service of at least 1 year. (Sec.8)
What are the conditions for entitlement of parental leave?
1. He or she must fall among those referred to as solo parent;
2. Must have the actual and physical custody of the child or children;
3. Must have at least rendered service of one year to his or her employer; and
4. He or she must remain a solo parent
Who are those referred to as solo parent entitled to parental leave?
Any individual who falls under any of the following categories:
1. A woman who gives birth as a result of rape and other crimes against chastity even without a final conviction of the offender, provided, that the mother keeps and raises the child;
2. Parent left solo or alone with the responsibility of parenthood due to:
a. Death of spouse;
b. Detention or service of sentence of spouse for a criminal conviction for at least 1 yr;
c. Physical and/or mental incapacity of spouse
d. Legal separation or de facto separation from spouse for at least 1 yr as long as he/she is entrusted with the custody of the children;
e. Nullity or annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custody of the children; and
f. Abandonment of spouse for at least 1 yr;
3. Unmarried mother/father who has preferred to keep and rear his or her child/children instead of:
a. having others care for them; or b. give them up to a welfare institution 4. Any other person who solely provides: a. parental care; and
b. support to a child or children
5. Any family member who assumes the responsibility of head of family as a result of the:
a. death;
b. abandonment; c. disappearance; or
d. prolonged absence of the parents or solo parent.
