Especially with the pandemic ongoing, so many companies are undergoing a lot of turmoil. Many employees has been on forced leave since ECQ hit last March 16. Many companies are still operating at 50% to 70% capacity and have no clue what to do with all of the extra headcount. They don’t know if they should keep the employees on a float or to retrench them. Given all these confusion, so many employees have become angry at their employer — “Why am I still not at work? When are you going to ask me to report? What about my family? They all need to eat!”

I have written about Termination on my post last May, HR Talk: I Was Terminated During ECQ. Now What? And 11 Other Questions Answered About Getting Fired ( https://tinainmanila.com/2020/05/04/hr-talk-i-was-terminated-during-ecq-what-now-and-11-other-questions-answered-about-getting-fired/). Now, I have updated it a wee bit to guide both employees and employers on what is legal or not. So here goes –

Top 10 Questions That Many Angry Employees Ask During the Pandemic Answered:

1. Can the Company Terminate Me During This Pandemic?

Answer: DOLE Department Order No. 147, Series of 2015

2. Can an Employer Reduce My Wages Legally During this Pandemic?

Answer: Labor Advisory No. 17, Series of 2020

3. Is it Legal for My Company to Place Me on Floating Status/Temporary Lay-off/Furlough? Is it Paid? For How Long?

Answer: Labor Advisory No. 17, Series of 2020,  Article 301 (ex Article 286) of Labor Law

4. Can I Avail of the SSS’ Unemployment Benefits if I Resigned?

Answer: Alfaro vs. Court of Appeals G.R. No. 140812, August 28, 2001: ” Separation pay need not be paid to an employee who voluntarily resigns.”

5. Can I Use COVID-19 (Or Lack of Transportation) as an Excuse for Immediate Resignation?

6. If I Get Retrenched, What’s the Computation of My Final Pay?

Answer: Presidential Decree No. 442 (“P.D. 442”), otherwise known as the “Labor Code of the Philippines”, Department Order No. 147 Series of 2015

7. How to Compute My Pro-Rated 13th Month Pay (When You’re Leaving the Company within the Year)? 

Answer: Bureau of Working Conditions FAQs on 13th Month Pay

8. Can I Force the Company to Send Me My Final Pay via Palawan/Bank Deposit since I Can’t Come to the Office to Get my Last Pay due to COVID-19/Lack of Transportation? 

9. My Certificate of Employment (COE) Disclosed That I Did Not Leave My Company Properly. Is This Legal?

Answer: Labor Advisory No. 6, Series of 2020

10. I Am Very Angry at My Employer. Can I Complain and Bad Mouth My Employer on My Social Media Wall? They are Sending Me an NTE Re: My Facebook Posts. Is This Legal? 

BONUS QUESTION. Why You Should Not Run to Tulfo or DOLE Every Time Before You Get Mad at Your Employer? 

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1. Can the Company Terminate Me During This Pandemic?

Yes, a company can ALWAYS terminate you AT ANY TIME for the following reasons:

DEFINITION:

• Just Causes = Ikaw may kasalanan, Zero separation Pay
• Authorized Causes = Not your fault but company removed you due to economic reasons or things beyond your control. May Separation Pay.

It’s legal to terminate an employee so long as the company is acting on GOOD FAITH and follows DUE PROCESS. Sharing the slide of Emerhub as it succinctly explains the process for both:

So yes, a company can terminate any employee at any time so long as there’s justification for it, and proper due process is followed.

2. Can an Employer Reduce My Wages Legally During the Pandemic?

Yes they can, via two LEGAL ways, both mentioned in Labor Advisory No. 17, Series of 2020:

     a. By putting you on Flexible Work Arrangement that Reduces the Amount of Work That You Do

For example, you used to work 6 days a week and now work 3 days a week that’s MWF, then your work has been reduced by 50%. Since the standard rule is No Work No Pay, if you used to earn Php 14,000 a month, your salary has now dropped to Php 7,000 per month, mainly because you’re also doing 50% less work for your employer.

b. By getting your written agreement to reduce your wages by X within a maximum 6 month period (Labor Advisory No. 17, Series of 2020).

IMPORTANT: WFH, FWA and Salary Reduction must be Documented in Writing.

Section 7 in Labor Advisory No. 17, Series of 2020 clearly states that there must be an agreement on both parties to either do the WFH, Flexible Work Arrangement and/or Reducing Wages of the Employee. Never forget to document the agreement in writing.

If the employee does not agree, and you have no plans of retrenching, it may be better to put the staff on floating status as you wait for business to operate normally, than to force a person to do WFH, FWA or do a Salary Reduction without the Staff’s Consent.

You have been warned.

3. Is it Legal for My Company to Place Me on Floating Status/Temporary Lay-off/Furlough? Is it Paid? For How Long?

Yes — because of this Article 301 (ex Article 286) of Labor Law:

“Art. 301 (Former Art. 286). When employment not deemed terminated. The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.” 

It’s management prerogative to float an employee for a maximum of SIX (6) months if direct, and THREE (3) months if under agency if certain conditions are met. The law allows suspension of business or undertaking for a period not exceeding six months during the periods of business recession, industrial depression, or seasonal fluctuations, or during lulls caused by lack of orders, shortage of materials, conversion of the plant to a new production program or the introduction of new methods or more efficient machinery, or of automation.

What is “Floating Status”?

• Floating Status is synonymous to temporary retrenchment of business or undertaking thereby inevitably forcing or causing its affected employees to go on leave.

• It is sometimes called as “Temporary Off – detail” or “off-detailing” and is a valid exercise of management prerogative.

Why “Floating Status” is NOT equivalent to dismissal, and even if you’re not reporting to work, you’re still employed:

In the case of Crispin B. Lopez vs. Irvine Construction Corp. and Tomas Sy Santos (GR 207253, Aug. 20, 2014),  the Supreme Court explained why lay-off is a valid management prereogative:

“It is defined as the severance of employment, through no fault of and without prejudice to the employee, resorted to by management during the periods of business recession, industrial depression, or seasonal fluctuations, or during lulls caused by lack of orders, shortage of materials, conversion of the plant to a new production program or the introduction of new methods or more efficient machinery, or of automation. Elsewise stated, lay-off is an act of the employer of dismissing employees because of losses in the operation, lack of work, and considerable reduction on the volume of its business, a right recognized and affirmed by the Court. However, a lay-off would be tantamount to a dismissal only if it is permanent.

“When a lay-off is only temporary, the employment status of the employee is not deemed terminated, but merely suspended. The lay-off, being an exercise of the employer’s management prerogative, must be exercised in good faith – that is, one which is intended for the advancement of employers’ interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements. xxx xxx xxx Six months is the period set by law that the operation of a business or undertaking may be suspended thereby suspending the employment of the employees concerned. The temporary lay-off wherein the employees likewise cease to work should also not last longer than six months.

Is the Time in Floating Status Paid?

Nope.

What Happens If You’re Not Returned to Work After 6 Months?

After 6 months, either you will be recalled back to work or given a new assignment without any loss of seniority rights or are permanently retrenched.

If you are to be retrenched, the company should comply with the one-month notice rule to both the Department of Labor and Employment and the employee/s prior to the suspension of its business operations, for your temporary lay-off to be valid and in accordance with our laws.

Other Things to Remember

• Putting people in floating status must be in good faith:Constructive dismissal exists where there is cessation of work because “continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank or a diminution in pay” and other benefits. Aptly called a dismissal in disguise or an act amounting to dismissal but made to appear as if it were not, constructive dismissal may, likewise, exist if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment.” (Morales vs. Harbour Centre Port Terminal (G.R. No. 174208, January 25, 2012)
• Employer has burden of proof.Company must be able to prove that a) There is a clear and compelling economic reason which reasonably forces it to temporarily shut down its business operations, incidentally resulting to the temporary lay-off of its employees, and b) The employer must also prove that there are no posts available to which the employee temporarily out of work can be assigned.” (Lopez vs. Irvine Construction Corporation (G.R. No. 207253, August 20, 2014)

4. Can I Avail of the SSS’ Unemployment Benefits if I Resigned?

No — You cannot avail of the SSS Unemployment Benefits if you resigned, was terminated for just causes, or is in floating status and still employed.

To qualify for the SSS Involuntary Separation Benefits, applicants can receive up to Php 20,000 of Unemployment Benefits if:

a. They have at least 36 of payment contributions — 12 months of the 36 months should have been paid within the 18-month period prior to the month of involuntary separation.

b. They have been terminated due to Authorized Causes. There must be a Notice of Termination for Authorized Causes, which you need to provide to DOLE to be qualified. These are the type of Termination of Authorized Causes:

IMPORTANT: If you have been fired for Just Causes (e.g., You are at fault), RESIGNED (Voluntary Action), or still in floating status (You’re still Employed), you CANNOT avail of the SSS Involuntary Separation Benefits. 

5. Can I Use COVID-19 (Or Lack of Transportation) as an Excuse for Immediate Resignation?

In the absence of any notice or company policy, Article 285 of the Philippine Labor Law states that an employee is to render 30-day notice for proper turnover:

“Art. 285. Termination by employee.

1. An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages.

This rule is fair for any employer because it gives them time to find a replacement, turnover the work to the replacement, and to be prepared for the employee’s departure and make arrangements so that work won’t be disrupted.

An Employer Cannot Force You to Stay Beyond the 30 Days If You Don’t Want To

Once you send your employer a written resignation letter — a short and simple one will do — you do not need to wait for the company to acknowledge your letter or accept your resignation. From that time, start na ng meter of 30 days. Please note that the 30 days is followed when there is no notice. If your employment contract says 60 or 90-day notice, please respect the contract you signed on.

It is NOT your job to find them a replacement (though it’s goodwill if you choose to do so), stay beyond the 30 days after your notice (though pwede idaan sayo ang pakiusap), or keep on staying with the company because they can’t find a replacement.

But You Still Need to Respect the 30-Day Notice Rule and Follow It If Your Employer Wants To

If you don’t want to follow the 30-day notice rule and choose instead to stop reporting to work regardless of reason,  your employer has the right to follow due process and terminate you. As mentioned later, they can possibly disclose that you went AWOL on your COE if this is true.

So parang walang problema, PAKIUSAP is key.

Talk to your employer and sweetly ask them if they can possibly allow you to resign without rendering the 30 day notice. If they say yes, congrats. If they say no, respect it and turnover properly.

Because as they say, maayos kang pinasok. Maayos ka din dapat umalis. And even if you’re happy with the employer, you’re leaving in a month’s time. No need to burn bridges because after a month’s time, you’ll never see their faces again. Hindi ka naman mamamatay if umalis ka ng maayos, para at least, wala silang masasabi sa iyo.

6. If I Get Retrenched, What’s the Computation of My Final Pay?

Final Pay should be your Unpaid Wages + Pro-Rata 13th Month Pay + Separation Pay (If you have been terminated due to Authorized Causes). Labor Advisory No. 6, Series of 2020 goes even more in depth on what Final Pay constitutes of:Again, Separation Pay is computed as follows:

REMINDER: Any employee who voluntarily resigns is NOT QUALIFIED for any separation pay regardless of tenure or how long they have been working in the company.

In cases of installation of labor-saving devices or redundancy, the employee is entitled to receive the equivalent of one month pay or one month for every year of service, whichever is higher.

In cases of retrenchment, closure or cessation of business or incurable disease, the employee is entitled to receive the equivalent of one month pay or one-half month pay for every year of service, whichever is higher.

In case of separation pay in lieu of reinstatement, the employee is entitled to receive the equivalent of one month pay for every year of service.

In short, for Retrenchment, the final pay is easily computed as:

• Up to 2 yrs 5 mos = 1 month pay
• 2 yrs 6 mos – 3 yrs 5 mos = 1.5 months pay
• 3 yrs 6 mos – 4 yrs 5 mos = 2 months pay
• 4 yrs 6 mos – 5 yrs 5 mos = 2.5 months pay
• 5 yrs 6 mos – 6 yrs 5 mos = 3 months pay
• So on and so forth

Final Pay should be given to you Thirty (30) Days after your separation from the company or termination of employment. Please note that the critical words are termination of employment. So that there’s no issues regarding your separation or delays in final pay, please ensure you finish your Clearance.

Here is a Separation Pay Calculator that can help you estimate your retrenchment, retirement and other separation pay.

Final Retirement Pay Calculator (TinainManila.com)

7. How to Compute My Pro-Rated 13th Month Pay (When You’re Leaving the Company within the Year)? 

An employee who has resigned or whose services were terminated at any time before the time for payment of 13th month is still entitled to the benefit. To those who have resigned/terminated this year, here’s how the Bureau of Working Conditions shows how the 13th Month Pay is computed:

Total Basic Salary for the Year = Pro-rata 13^th month pay
Divided by 12

“Basic Pay” – Includes all earnings paid by an employer to an employee for services rendered but does not include allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary, such as the cash equivalent of unused vacation and sick leave credits, overtime, premium, night differential and holiday pay, and include cost-of-living allowances, unless there’s a CBA or it is company policy. 

Now, assume you earn Php 10,000 per month. Due to the ECQ, you were placed on leave/floating status from March 16, 2020 and up to now, your boss has not yet asked you to report to work. Consequently, you were retrenched/resigned, how do you compute your 13th month pay? 

The Pro-Rata Pay is calculated as Php 2,083.33 since you’ve only earned Php 25,000 total basic pay for the year. It’s is not what you guys think it is, because technically, you earned zero pesos during March 16 to present. So adding this makes ZERO impact to the computation of 13th Month Pay.

NOTE: All rank-and-file employees are entitled of 13th month pay if they have reached at least one month of service. Managers are usually exempted of this pay unless there’s a policy/habit that shows that the company includes their managers in the payment of 13th month pay.

8. Can I Force the Company to Send Me My Final Pay via Palawan/Bank Deposit since I Can’t Come to the Office to Get my Last Pay due to COVID-19/Lack of Transportation? 

Here’s the thing, no sane company will ever give any departing an employee their final pay without having them sign the voucher that shows the breakdown for their final pay + the Quit Claim.

Final Pay is almost always kaliwaan — You get your final pay and THEN you sign the QuitClaim, so there’s no misunderstandings later on that you received less than what you think you should have received.

What you can do however is to PAKIUSAP your company if they can send you a soft copy of the Quit Claim, you sign it, and send it back to them in exchange of them paying you your final pay in the mode of payment of your choice. Once the voucher and quitclaim are signed, companies will be okay to send you your last pay any way you wish.

If you refuse to sign the quitclaim, most companies can withhold the last pay until you appear physically in the company to claim it.

9. My Certificate of Employment (COE) Disclosed That I Did Not Leave My Company Properly. Is This Legal?

Any employee can request for a Certificate of Employment regardless of status. Labor Advisory No. 6, Series of 2020 clearly states that that the Certificate of Employment should be released THREE (3) days of the staff’s request

If you read the Advisory, it reads: COE is “A certificate specifying the dates of an employee’s engagement and the termination of his/her employment and the type or types of work in which he is employed.” 

Please note how this is written — Do you see any commas (,) in this long-winded sentence?

Grammar and placement of a comma are very important in understanding this advisory. Because if DOLE wrote the advisory as:

“A certificate specifying the dates of an employee’s engagement TO the termination of his/her employment, and the type or types of work in which he is employed.” 

It would mean the COE should include:

     a. Dates of an employee’s service to the termination of his employment (From Date A to Date B), and
     b. The types of work in which he/she is employed.

Instead, there is no comma, just a lot of “ands.” So in a way, it could also mean that the COE should specify:

     a. Dates of an employee’s service (From Date A to Date B) and
b. The termination of his employment and
     b. The types of work in which he/she is employed.

Now ain’t this fun? If so, disclosure of the manner of termination can and should be disclosed in the Certificate of Employment. If the staff is AWOL, this advisory clearly does not stop the employer from disclosing that fact, thus making the Employee unhirable if in case future employers are sensitive to people who depart a company without proper turnover.

Regardless of the grammar and the comma, the Advisory did not bar the employer from saying anything more, so long as the information is factual and truthful.

This is the reason why we should NEVER burn bridges. While Employers have no excuse in releasing the COE on time — Labor Advisory No. 6, Series of 2020 clearly states that that the Certificate of Employment should be released THREE (3) days of the staff’s request — it does give Employers the liberty to disclose facts so long as they are accurate and truthful. And again, sino ba naman ang may kasalanan niyan kundi ang employee himself/herself?

10. I Am Very Angry at My Employer. Can I Complain and Bad Mouth My Employer on My Social Media Wall? They are Sending Me an NTE Re: My Facebook Posts. Is This Legal? 

When it comes to this, ALWAYS consult your Company Code of Conduct/Policy.

Photo Source: Insperity

If the Code of Conduct says in any shape or form, you cannot badmouth your employer in public due to the Confidential Clause or Social Media Policy, respect it. Doing so may get you terminated following proper due process.

If there is no mention, you may get a pass or a warning. Your employer will most likely warn you to stop, with either a warning or some sort of penalty. If you still choose to continue on with your Facebook bashing, this will get you fired after following proper due process.

Please do not bash the hand that feeds you. Work is not servitude. You can resign at any time. If you’re really so unhappy with your employer, why are you still with them? As I’ve mentioned before, there is nothing legally that can force a staff to stay with an employer if he/she chooses to resign.

Salesforce.com is kind enough to share their Social Media Policy via LinkedIn. I think everyone should read their Social Media Policy and adopt the rules into their own companies. For employees, always be mindful on what you post:

The rule of thumb is this: ONLY POST IN SOCIAL MEDIA WHAT YOU’RE OK FOR YOUR BOSS TO READ

• PM = Private Message. Kaya you can cite the Data Privacy Act
• Facebook posts in Newsfeed, Posts in public groups or accessible by 100,000 readers, Tweets, Instagram that’s public, etc. = Public domain. All bets are off!

If the company has a social media policy, this must be respected and followed. Post at your own risk. If you post on groups, newsfeed or your public wall, be prepared for others to take a photo and disseminate.

If it’s a Private Message, this is a different story.

Also be careful what’s on your wall. Just make sure anything you write, you’d be ok if somebody screenshots, shares, disseminates it. If it will get you in trouble, don’t post it na. Because anything you say can be taken against you, even if it’s just “social media.”

And it’s just not the Philippines. Here is Rolling Stone’s List of: A Brief History of People Getting Fired for Social Media Stupidity for your reading pleasure:

Don’t be stupid. Think before you click, lest you be called to HR and getting into trouble for being too trigger happy.

BONUS QUESTION. Why You Should Not Run to Tulfo or DOLE Every Time Before You Get Mad at Your Employer? 

To their credit, Tulfo and DOLE have always been pro-employee. However, Sir Raffy Tulfo and DOLE already have a long line of complaining employees at their door. Sir Raffy will only take you seriously if there’s a clear abuse that happened, and the amount the company is liable for is truly big and scandalous. Siyempre, radyo and TV kasi.

As mentioned before too, it’s not good to burn bridges with a former employer unless you don’t plan to work elsewhere anymore. Most employer know if they are following the law or not. Most will be amenable to a settlement or negotiation if the employee was just patient enough to communicate their requests in a nice and respectful way.

However, once you run to DOLE/Tulfo, that’s it. All bets are off. Boksingan na talaga!

So I would suggest that you run to Tulfo or DOLE only as a last resort.

If there is an issue, talk to the company FIRST — Go through your line manager, then HR, and if needed, the big boss. Try to settle the issue there before making mountains out of molehills.

Secondly, double check that you’re on the RIGHT — Meaning, you’re correct and there was a clear abuse by your employer to you. A lot of employees complain because they are pissed off, only to find out that they are in the wrong, and doon sila papagalitan ng DOLE sa SENA meeting.

Three, make sure that the amount you’re complaining about is still SUBSTANTIAL — I can understand if you’re complaining for your separation pay after 25 years of service. Even if you’re earning minimum at Php 14,000, that’s still a lot of money at Php 175,000.

Breakdown: Php 14,000 x 0.5 month pay per year of service x 25 years = Php 175,000.

But if you’re for example only employed at the company for less than 2 months and the ECQ hit, and then you complain to DOLE immediately? This trigger happy response will make you unhire-able, a pariah to most other companies. Because who would want an employee who immediately runs to DOLE for every perceived slight he has?

Look, I’m not saying you should not.

There are people who have come to me for advice and I have explicitly guided them to go to DOLE if they could not convince their employer to pay them what’s right. However, this should be a last resort, if your employer is a total A-hole who don’t want to give you their due.

Plus, if You Are Wrong, Going to DOLE/Tulfo will NOT Get You What You Want?

For example, if you DOLE/Tulfo your company, will this speed up your release of the final pay if you don’t want to get it at your company office?

Let’s see, logistically, you’d have to travel at your own expense to the Office of DOLE and Tulfo, wherein which you will lodge in your written complaint.

Then, DOLE will invite you for a SENA meeting so you can meet face-to-face with your employer’s representative once a schedule becomes available. This entails a separate byahe, once again at your own expense.

Chances are, the Employer will meet you on the first meeting. Listen to your grievances, and then find out, you want to get paid your final pay at the location of your choice and at your convenience.

It will most likely be at the second meeting at the earliest that you will get your final pay. It will be the exact amount you will get will be the exact final pay you will get if you went to the office to sign the freaking quitclaim.

No more, no less.

If that’s the case, would it not be faster just to go to the company to process and receive your final pay, than to DOLE your company since pareho lang ang ending?

What’s more, it will leave a bad taste in your previous employer’s mouth. What do you think they will do if a future employer calls them up for a background check?

As they say, don’t burn your bridges. There’s no obvious way of burning bridges than DOLE-ing an employer.

DOLE and Tulfo is there to protect your interest IF there is true abuse. Just make sure that there is before running to them. Because if the company is truly in the right and not in the wrong, and you did complain against them because nagtampo ka, sayang lang ang oras mo and you had burned a bridge that can potentially help you in the long run, especially when you find new work.

That’s it kulits. Hope that this clears everything, and wishing you all a wonderful week ahead!