LEGAL ISSUES IN EMPLOYEE

SELECTION
CHRISTINE ANNE M. VILLAMARZO, MSP, RPSY
 THE LEGAL PROCESS
Resolving the Complaint Internally
Before a complaint can be filed with the EEOC/ DOLE, an employee must utilize
whatever internal resolution process is available within the organization. As a
result, most organizations have formal policies regarding how discrimination
complaints will be handled internally
.
Grievance system, employees take their complaints to an internal committee that
makes a decision regarding the complaints. If employees do not like the decision,
they can then take their complaints to the EEOC/DOLE.

Mediation, employees and the organization meet with a neutral third party who
tries to help the two sides reach a mutually agreed upon solution. If they cannot
reach a solution, the complaint can be taken to arbitration or EEOC /DOLE.
Arbitration, the two sides present their case to a neutral third party
who then makes a decision as to which side is right.
Arbitration and mediation differ in that the neutral third party helps the
two sides reach an agreement in mediation, whereas, in arbitration, the
neutral third party makes the decision.

If binding arbitration is used, neither side can appeal the decision.

If nonbinding arbitration is used, the parties can either accept the
decision or take the case to court.
Outcomes of an EEOC Investigation
Charge Does Not Have Merit If, after reviewing a complaint,
the governmental agency does not find merit, one of two
things can happen based on whether the person filing the
complaint accepts the decision. If the complainant accepts the
decision, the process ends. If the complainant does not accept
the decision, he is issued a “right to sue” letter that entitles
him to hire a private attorney and file the case himself.
Charge Has Merit If, the EEOC believes that the discrimination
charge has merit, it will try to work out a settlement between
the claimant and employer without taking the case to court.
These settlements might include an employer offering a job or
promotion to the person filing the complaint, the payment of
back wages, and the payment of compensatory or punitive
damages.
1.1 What are the main sources of employment law?

The Labour Code of the Philippines (“Labour Code”) is the primary

source of employment law. The Constitution provides guidance and is
supplemented by numerous employment-related legislations,
decisions/rulings by the Philippine Supreme Court, and the
administrative issuances of the Department of Labour and Employment
(“DOLE”).
1.2 What types of worker are protected by employment law? How
are different types of worker distinguished?
The following types of employees are protected:
Regular employees:
(i) by nature of the work or those who are engaged to perform
activities which are usually necessary or desirable in the usual
business or trade of the employer; and
(ii) by years of service or those who have rendered at least one year of
service, whether continuous or broken, with respect to the activity
in which they are employed. They enjoy security of tenure and all
the protections afforded by law.
Project employees are those whose employment has been fixed for a
specific project or undertaking, the completion or termination of which
has been determined at the time the employee is engaged and thus,
the period of engagement is coterminous with the project. They enjoy
security of tenure for the duration of the project.
Seasonal employees are those who perform work that is seasonal in
nature and are employed only for the duration of a season.
Casual or temporary employees are those engaged to perform a job,
work or service which is merely incidental to the business of the
employer, or only for a definite period made known to the employee at
the time of engagement. They are entitled to most statutory benefits,
except retirement pay and service incentive leave pay, among others.
Fixed-term employees are not common and are not expressly
recognised in the Labour Code. Jurisprudence recognises their validity
under specific circumstances. They are entitled to contractual benefits
and enjoy security of tenure for the duration of the contract.

Probationary employees are those who are made to go on a trial

period before regularisation. They enjoy security of tenure during the
probationary period and may not be dismissed except for just or
authorised cause or when they fail to qualify as regular
employees. Probationary employment shall not exceed six months.
2. Employee Representation and Industrial Relations

2.1 What are the rules relating to trade union recognition?

A union may or may not be registered with the DOLE. The recognition
or registration of unions is governed by DOLE Department Order No.
40-03 (February 17, 2003) as amended.

2.2 What rights do trade unions have?

Registered unions have the right to engage in collective bargaining and
collective action such as strikes. Unregistered unions cannot
collectively bargain nor petition for a certification election.
3. Discrimination
3.1 Are employees protected against discrimination? If so, on what grounds is
discrimination prohibited?
Yes, employees are protected against certain types of discrimination. Legislation
provides the basis for the protection.

3.2 What types of discrimination are unlawful and in what circumstances?

In general, it is unlawful to discriminate with respect to terms and conditions of
employment on account of: (1) sex; (2) age; (3) marital status; (4) pregnant status;
(5) solo parent status; (6) disability; (7) mental health condition; (8) ethnicity; (9)
actual, perceived or suspected HIV status; (10) having tuberculosis; (11) having
hepatitis B; (12) having cancer or being a cancer survivor (who is considered a
person with disability); and (13) union membership.
3.3 Are there any special rules relating to sexual harassment (such as
mandatory training requirements)?

The Anti-Sexual Harassment Act of 1995 (Republic Act No. 7877) mandates
employers to formulate and adopt policies to prevent or deter the commission of
acts of sexual harassment, among others.

The Safe Spaces Act (Republic Act No. 11313) imposes the duty on employers or
other persons of authority, influence or moral ascendancy in a workplace to
prevent, deter or punish the commission of acts of gender-based sexual
harassment in the workplace.
3.5 How do employees enforce their discrimination rights? Can employers
settle claims before or after they are initiated?
The employees may file a complaint in order to enforce their discrimination
rights. The employer may settle claims at any stage of a claims proceeding.

3.6 What remedies are available to employees in successful discrimination

claims?
Monetary awards or the payment of damages are the usual remedies in
discrimination claims. If the discrimination results in illegal dismissal, the employee
may be awarded reinstatement (or separation pay in lieu of reinstatement), full
back wages and damages. The employees may also pursue a criminal case for
violation of special laws prohibiting discrimination.
4. Maternity and Family Leave Rights

4.1 How long does maternity leave last?

Employees are generally entitled to 105 days of maternity leave with
pay.
4.2 What rights, including rights to pay and benefits, does a
woman have during maternity leave?
A woman has the right not to be terminated from employment solely
due to her pregnancy or by reason of her availment of the maternity
leave benefits under the law. She has the right to extend her maternity
leave for an additional 30 days without pay. She also has the right to
assign up to seven days of her leave benefits to the child’s father, or in
his absence, to a relative within the fourth degree of consanguinity or
to her partner who is sharing the same household with her.
4.3 What rights does a woman have upon her return to work from maternity
leave?
Female employees who avail of the maternity leave benefit shall be assured of
security of tenure and the right to return to her former position without loss of any
seniority rights.

4.4 Do fathers have the right to take paternity leave?

Yes. Pursuant to the Paternity Leave Act (Republic Act No. 8187), a male employee
is entitled to paternity leave benefits of not less than seven days up to the first four
deliveries of his legitimate spouse.

4.5 Are there any other parental leave rights that employers have to observe?
Aside from maternity and paternity leave benefits, the Solo Parents’ Welfare Act
(Republic Act No. 8972) entitles solo parent employees to parental leave of not
more than seven working days every year to perform parental duties and
responsibilities where physical presence is required.
6. Termination of Employment

6.1 Do employees have to be given notice of termination of their

employment? How is the notice period determined?
Yes, employees must be given notice of termination. Just cause terminations are
communicated to the employee via a notice of decision after observance of due
process. Authorised cause terminations require written notices to the affected
employees and the DOLE at least 30 days before the effective date of termination.

6.2 What protection do employees have against dismissal? In what

circumstances is an employee treated as being dismissed? Is consent from a third
party required before an employer can dismiss?
Employees may be validly dismissed only after compliance with both substantive
and procedural due process requirements of law. Substantive due process refers to
having a valid ground for dismissal, while procedural due process refers to the
procedural requirements leading to dismissal. Notice to the employee and/or the
DOLE may be required for the dismissal to be valid. There is no consent
requirement.
6.4 Are there any categories of employees who enjoy special protection
against dismissal?
There are no categories of employees who enjoy special protection against
dismissal for just or authorised causes under the Labour Code. An employer,
however, is prohibited from terminating employment based on an employee’s race,
gender, political belief, religion, association and other special conditions. Hence,
certain groups of employees (e.g., women, the disabled, union members, or
employees with HIV, Hepatitis B, and tuberculosis) may not be terminated solely on
account of their gender or condition.
6.5 When will an employer be entitled to dismiss for: 1) reasons related to the
individual employee; or 2) business-related reasons? Are employees entitled to
compensation on dismissal and if so, how is compensation calculated?
The employer may dismiss employees only for just or authorized causes under the
Labour Code.
The just causes for terminating employment include the following:
a. serious misconduct or wilful disobedience by the employee of the lawful orders
of his employer or representative in connection with his work;
b. gross and habitual neglect by the employee of his duties;
c. fraud or wilful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
d. commission of a crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly authorized
representatives; and
e.other causes analogous to the foregoing (i.e., abandonment of work, gross
immorality or gross incompetence).
On the other hand, the following are the authorized causes under the
law:
• installation of labor-saving devices;
• redundancy;
• retrenchment;
• closure or cessation of business; and
• disease.
In a just cause termination, the dismissed employee is not entitled to
any separation pay. For termination due to authorized causes, the
employee is generally entitled to payment of separation pay.
6.6 Are there any specific procedures that an employer has to follow in
relation to individual dismissals?

Yes. For termination due to just causes, the employer must inform the employee in
writing of the charges upon which termination may ensue and provide an
opportunity for the employee to explain. The employer must call an administrative
hearing to give the employee further opportunity to be heard and to present his or
her evidence, with the assistance of a lawyer or representative. If the explanation is
unsatisfactory, the written notice of the decision follows, leading to termination of
employment. For termination due to authorized causes, the employer must serve
written notices to the displaced employee and the DOLE at least 30 days before the
effective date of termination and must pay the displaced employee severance pay
computed in accordance with law.
6.7 What claims can an employee bring if he or she is dismissed? What are the
remedies for a successful claim?

An employee may file a case for illegal dismissal. A successful claim may result in an
award for reinstatement without loss of seniority rights and full back wages,
inclusive of allowances and other benefits computed from the time the employee’s
compensation was withheld from him up to the time of his actual
reinstatement. Moral and exemplary damages and attorney’s fees may also be
awarded. In some cases, separation pay may be awarded in lieu of reinstatement.
The employer may appeal the decision to the National Labour Relations
Commission (“NLRC”) and then to the Court of Appeals and the Supreme Court.
6.7 What claims can an employee bring if he or she is dismissed? What are the
remedies for a successful claim?

An employee may file a case for illegal dismissal. A successful claim may result in an
award for reinstatement without loss of seniority rights and full back wages,
inclusive of allowances and other benefits computed from the time the employee’s
compensation was withheld from him up to the time of his actual
reinstatement. Moral and exemplary damages and attorney’s fees may also be
awarded. In some cases, separation pay may be awarded in lieu of reinstatement.
The employer may appeal the decision to the National Labour Relations
Commission (“NLRC”) and then to the Court of Appeals and the Supreme Court.
6.8 Can employers settle claims before or after they are initiated?

Employers may settle claims of the employees at any time before or

after a formal complaint is filed. An amicable settlement or
compromise of a labor case is possible at any time before the finality of
the decision in the case.
 R.A. No. 11360 (2019), An Act Providing that Service Charges
Collected by Hotels,Restaurants and Other Similar Establishments be
Distributed in Full to All CoveredEmployees, Amending for the
Purpose Presidential Decree No. 442, as Amended,Otherwise Known
as the “Lab or Code of the Philippines.”

 R.A. No. 11210 (2019), “An Act Increasing the Maternity Leave
Period to One Hundred Five (105) Days for Female Workers with an
Option to Extend for an Additional Thirty (30) Days Without Pay, and
Granting an Additional Fifteen (15) Days for Solo Mothers, and for
Other Purposes.”
 R.A. No. 11058 (2018), “An Act Strengthening Compliance with
Occupational Safety and Health Standards and Providing Penalties
for Violations Thereof.”

 R.A. No. 10911 (2016), “An Act Prohibiting Discrimination Against

Any Individual in Employment on Account of Age and Providing
Penalties Therefor,” or the “Anti-Age Discrimination in Employment
Act.”

 R.A. No. 10917 (2016), “An Act Amending Certain Provisions of R.A.
No. 9547, Otherwise Known as An Act Strengthening and Expanding
the Coverage of the Special Program for Employment of Students,
Amending for the Purpose Provisions of R.A. No. 7323, Otherwise
Known as the Special Program for Employment of Students (SPES).”
 R.A. No. 10741 (2016), “An Act Strengthening the Operations of the
National Labor Relations Commission.”
 R.A. No. 10757 (2016), “An Act Reducing the Retirement Age of
Surface Mine Workers from Sixty (60) to Fifty (50) Years, Amending
for the Purpose Article 302 of P.D. No. 442, As Amended.” Section 3
of the said law contains a Renumbering Clause: “For purposes of
uniformity, the numerical designation of Title II (Retirement), Book
Six of Presidential Decree No. 442, as Article 302 in Section 1 of this
Act, shall be renumbered in accordance with Republic Act No. 10151
and as promulgated by the Department of Labor and Employment in
their Department Advisory Order No. 01, series of 2015.”
 R.A. No. 10801 (2016), “An Act Governing the Operations and
Administration of the Overseas Workers Welfare Administration,”
otherwise known as the Overseas Workers Welfare Administration
Act.
 R.A. No. 10706 (2015), “An Act Protecting Seafarers Against Ambulance
Chasing and Imposition of Excessive Fees, and Providing Penalties Therefor” or
the SeafarersProtection Act which provides that attorney’s fees or fees for
representation / appearance before the NLRC, NCMB, POEA, and any of the
DOLE offices, shall not exceed ten percent (10%) of the compensation or
benefit awarded to the seafarer
of his/her heirs.
 R.A. No. 10691 (2015), “An Act Defining the Role of the DOLE, LGUs, and
Accredited NGOs in the Establishment and Operation of the PESO, and the
Operation of Job Placement Offices in Educational Institutions ... Otherwise
Known as the PESO Act of 1999.” The DOLE issued D.O. No. 157 (2016) to serve
as its Implementing Rules and Regulations, as mandated under Sec. 6 of the
said law.
REFERENCES:

• Employment & Labour Laws and Regulations Report 2023 Philippines (iclg.com)