Published — June 1, 2022
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
For more information about other employment status read: Knowing the Difference Between Probationary Employment and Project Employment
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.
What is the legal basis of “Floating Status”?
o The legal basis for “Floating Status” is Article 301 of the Labor Code which states the following:
“The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment (sic) by the employee of a military or civic duty shall not terminate employment. In such all 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.”
When “Floating Status” is not equivalent to dismissal
o “Off-detailing” or putting an employee on floating status is not equivalent to dismissal, for as long as it does not last for more than six (6) months. After six months, the employee should be recalled for work without loss of seniority rights, or for a new assignment; otherwise, he is deemed terminated.
When “Floating Status” is equivalent to constructive dismissal; thus, becomes unlawful
o In the case of Airborne Maintenance vs. Egos (G.R. No. 222748, April 03, 2019), to wit:
“Here, the totality of the foregoing circumstances shows that petitioner’s acts of not informing respondent and the DOLE of the suspension of its operations, failing to prove the bona fide suspension of its business or undertaking, ignoring respondent’s follow-ups on a new assignment, and belated sending of letters/notices which were returned to it, were done to make it appear as if respondent had not been dismissed. These acts, however, clearly amounted to a dismissal, for which petitioner is liable.” (emphasis ours)
o Also, in the case of Morales vs. Harbour Centre Port Terminal (G.R. No. 174208, January 25, 2012), to wit:
“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.”
Who has the burden of proof?
o In the case of Lopez vs. Irvine Construction Corporation (G.R. No. 207253, August 20, 2014), to wit:
“The paramount consideration should be the dire exigency of the business of the employer that compels it to put some of its employees temporarily out of work. This means that the employer should be able to prove that it is faced with a clear and compelling economic reason which reasonably forces it to temporarily shut down its business operations or a particular undertaking, incidentally resulting to the temporary lay-off of its employees.
Due to the grim economic consequences to the employee, case law states that the employer should also bear the burden of proving that there are no posts available to which the employee temporarily out of work can be assigned.” (emphasis ours)
We own a small bakeshop with 5 employees, out of this have 2 people who can do multiple task. Due to the sudden drop of demand for our products we where planning to put the 3 “non-multitasking workers” on floating status. Is this within the provision of the law? The 2 multi-tasker can perform all activities only with smaller output which is fine since there is little demand. Asking the other 3 non multi-tasker to report would still require us to have the 2 multi-tasker available as they cannot perform “all” of the other work needed.
For regular employees under floating status, are they still entitled to their monthly SSS, Philhealth and HDMF contributions?
The employer is not bound to pay SSS, Philhealth and Pag-ibig benefits during period of placing an employee on floating status.
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
I am currently in a floating status right now, however all of my projects are still active and then my boss gave me a probationary termination letter stating that i didnt pass the probationary evaluation. However my probationary period already lapse when they decided to terminate my employment and therefore i am already a regular employee. They never pursue my termination but place me now under suspension without pay, is my suspension is legal? Since all of my projects are still active, can i get my salary during my time of suspension? Thank you.
The ground of the suspension was not clear based on the facts presented. With missing information, we cannot evaluate the legality of the suspension.
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
The reason i was being suspended was they said that all my projects are on hold at this point thst is why they suspended me. However upon my own verification all of my projects are still active and the person in charge are still coordinating with and sending me a copy of correspondence for my copy w/o the knowledge of the company. With these, is my suspension is legal since i am already a regular employee? Thank you
Hi, I am on floating status for 3 months since June 1. What will happen if the company didn’t have a job for me after that? Do I received a separation pay and 13th month?
Yes. After six months, the employees may be permanently retrenched. They will be entitled to separation pay and 13th month pay.
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Hi ! Can i get other job while in floating status? Am i breaching my contract?
It depends on what has been stipulated in your Employment Contract. While on floating status, you are still considered employed by the company.
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Aside from Article 261 of the Labor Code of the philippines, Is there a law that provides liabilities of employers to sick employees?
REPUBLIC ACT No. 11058 – “An Act Strengthening Compliance with Occupational Safety and Health Standards and Providing Penalties for Violations Thereof”
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Hi,
Due to medical reason, my Employer put me under LOA (I did not submit any request) from Feb of this year then ECQ comes my doctors did not allow me to go back to work (no fit to work). last week my doctor gave me a med cert that I can only work from home environment. My employer agrees WFH, I tried to subscribed for an internet connection but unfortunately our place is out of service area and Prepaid wifi connection is also not an option for my employer.
My question:
Would it be best if I resign or wait for my company to let me go so I can get any monetary help like separation pay?
Since from Feb up until now I did not receive any help, no 13th month, no DOLE assistance nothing at all as per my employer all of my benefits are on hold and I am not eligible to get anything not unless I got back to work.
You may resign or you may wait for the company to terminate your employment. In both these cases, the company is not obligated to give a separation pay.
Separation pay is given when the termination of employment is due to authorized causes such as installation of labor-saving devices, redundancy, retrenchment to prevent losses, closure and cessation of business, and disease / illness.
In your case, since you were already allowed to work from home by the medical doctor and the company was amendable to this arrangement, your separation from company may not be considered as authorized cause due to illness. Accordingly, you are not guaranteed to receive separation pay.
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Hi, good day. I want seek your advice on this matter. We were on training and was interrupted because of the lockdown since March. Its been 3 months already and we were told to prepare our internet connection for a possible virtual training on July 1st and was moved to July 8th. And by the end of day, we just found out that they already have another NEW batch to go on the virtual training that was promised to us. Frustrating.
This is a valid exercise of management prerogative.
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Hello I would like to raise my concern regarding my employment status. I’m a School Nurse at one of the well known Schools. It’s been months now since ECQ was declared we only receive almost half of our salaries because we used our Advance and remaining VL and SL. Then since the President asked the comoany owners fo give the 25% of our 13th month pay. We already received half of our 13th month. Then the H.R. from the Head Office called me asking me to voluntarily resign due to our company needs to survive. Up to now I did not submit any resignation letter yet because I want to know if what they did is legally acceptable? And I also wanted to ask if they are going to deduct the half of the 13th month that they already gave me in my last pay, is this also legally acceptable? What are the proper steps needed to be done?
1. Resignation should be voluntary, not compelled on the employee.
2. No, they are not going to deduct the 13th month pay in your last pay, unless there was excess in payment.
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Prior to the pandemic, my teammates and I were placed for redeployment due to headcount reduction across our company. They gave us a letter that we will be paid for the next 30 days then on floating status (unpaid) for the next 90 days. Honestly we were not happy about the unpaid floating for 90 days. From the start we requested for redundancy, however, they declined. Covid19 happened. We had several discussions with HR thru conference calls. In April (first discussion, some of us are already under the unpaid 90 day floating) they wanted to extend our floating status for another 30 days due tp ECQ. We asked what law or policy was the extension based. They were not able to answer or provide the basis. Anyway, from the last discussion on Apr 24 we were told the dates when we can expect the redundancy letter/offer (120th day from the original date when we were given our redep letter) given that we still dont have positions on the 120th day and was told extension is not needed as there are means to conduct interviews for job openings. Some of us have are already served the 120 days total (paid and floating) and expecting to receive the redundancy letter/offer. We still don’t have jobs and are apprehensive to accept a job offer/position due to the pandemic and other health issues which puts us in higher risk. However, just recently we had a discussion with HR giving us an extension letter for 30 days floating due to the ECQ in Mar and that there are openings for our job level. We asked again what law or policy was this based. HR will get back to us. My questions are:
1. Is the extension for our floating status legal?
2. We feel that they should have given us the redundancy letter already, is this right?
I hope you can help us understand our rights.
Thank you so much po. God bless.
1. Floating status of employee should not exceed 6 months or 180 days.
2. When that floating status of an employee lasts for more than six (6) months, he is considered to have been illegally dismissed from the service.
Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.