Minimum Requirements and Legal Implications of Hiring a Kasambahay or Domestic Worker

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Published — March 11, 2019

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.

Read also: Issuance of payslips and maintenance of payroll

Our Constitution firmly provides that the State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare (Sec. 18, Art. 2, 1987 Constitution). In view of this, Republic Act No. 10361, otherwise known as Batas Kasambahay or Domestic Worker’s Act (RA No. 10361) was enacted. This is to further protect the rights of domestic workers against abuse, harassment, violence, economic exploitation and performance of work that is hazardous to their physical and mental health through measures that mandate safety and healthful working conditions (Section 2, RA 10361).

Domestic  worker or kasambahay refers to any person engaged in domestic work within an employment relationship, whether on a live-in or live-out arrangement, such as, but not limited to, general househelp, “yaya”, cook, gardener, or laundry person, but shall exclude service providers, family drivers, children who are under foster family arrangement, or a person who performed work only occasionally or sporadically and not on an occupational basis (Section 2, Rule 1 of Implementing Rules and Regulations (IRR) of R.A. No. 10361).

In hiring a kasambahay, a prospective employer must know the minimum requirements, such as the process of hiring, compensation and benefits required to a kasambahay, working conditions and termination of service.

Requirements for Hiring

A kasambahay can be hired by the employer directly or indirectly. In choosing and hiring a kasambahay, the previous and most common norm in our country is to ask a colleague or friend if they know someone who is looking for a job as a domestic worker, but nowadays, with the passage of RA No. 10361, it is better to hire a kasambahay indirectly through a Private Employment Agency (PEA) [Expats’ Guide: Kasambahay Law (Domestic Workers Law)] . A PEA refers to any individual, partnership, corporation or entity licensed by the Department of Labor and Employment (DOLE) to engage in the recruitment and placement of kasambahay for local employment (Rule 2, Sec 1 and Rule 1 Sec 3 (i) IRR of RA 10361). The costs for hiring of a kasambahay shall be shouldered by the employer, whether he or she is hired through a licensed PEA (Rule 2, Sec 2 IRR of RA 10361). As to deployment expenses or expenses that are directly used for the transfer of the kasambahay from place of origin to the place of work covering the cost of transportation, meals, communication expenses and other incidental expenses, these shall be shouldered by the employer. However, when the kasambahay leaves without justifiable reason within six (6) months from employment, the employer may recover deployment expenses from him or her (Rule I Sec 3 (c) and Rule 2, Sec 3 IRR of RA 10361).

The Kasambahay Law requires that a written contract of employment be executed between the employer and the kasambahay. Prior to the execution of the employment contract, the employer may require the following from the Kasambahay:

1. Medical certificate or a health certificate issued by a local government health officer;
2. Barangay and police clearance;
3. National Bureau of Investigation (NBI) clearance; and
4. Duly authenticated birth certificate or, if not available, any other document showing the age of the kasambahay such as voter’s identification card, baptismal record or passport.

The costs for the foregoing shall be borne by the prospective employer or agency, as the case may be. (Article 3, Section 12 RA 10361)

The employment contract shall be in a language or dialect understood by both the domestic worker and the employer. It shall be accomplished in three (3) copies. The contract shall include the following:

1. Duties and responsibilities of the domestic worker;
2. Period of employment;
3. Compensation;
4. Authorized deductions;
5. Hours of work and proportionate additional payment;
6. Rest days and allowable leaves;
7. Board, lodging and medical attention;
8. Agreements on deployment expenses, if any;
9. Loan agreement;
10. Termination of employment; and
11. Any other lawful condition agreed upon by both parties.

(Article 3, Section 11 RA 10361)

Compensation and Benefits Under Articles 4 and 5 of the Kasambahay Law, the minimum compensation requirements, rights and benefits granted to kasamabahays are as follows:

1. Minimum wage;
2. Other mandatory benefits, such as the daily and weekly rest periods, service incentive leave, and 13^th month pay’
3. Freedom from employers’ interference in the disposal of wages;
4. Coverage under the SSS, Philhealth and Pag-IBIG laws;

The wages of the kasambahay shall be paid at least once a month (Rule 4, Sec 4 IRR of RA 10361). The equivalent minimum daily wage rate of the Kasambahay shall be determined by dividing the applicable minimum monthly rate by thirty (30) days (Book 3, Rule 13, Section 6 of the Rules to Implement the Labor Code). The amount of the minimum wage depends on the geographical area which the kasambahay works (Article 4, Sec 24 RA 10361).

The payment of wages of a kasambahay should be in cash and not by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than the cash wage as provided for under the Kasamabahay Law (Art. 4 Sec 30 of RA 10361). The employer shall at all times provide the Kasambahay with a copy of the pay slip containing the amount paid in cash every pay day, and indicating all deductions made, if any. The copies of the pay slip shall be kept by the employer for a period of three (3) years. (Art. 4, Sec 6 of RA 10361).

Working Conditions

The basic terms and conditions that should be observed in the employment of a Kasambahay are as follows:

1. Employable age. Children below fifteen (15) years of age are absolutely prohibited to work as a kasambahay. (Art. 3, Sec 16 RA 10361).
2. Normal daily hours of work and daily rest period of eight (8) hours per day. (Art. 4, Sec 20 RA 10361).
3. Weekly rest period. The kasambahay shall be entitled to twenty-four (24) consecutive hours of rest in a week. The employer and the Kasambahay shall agree in writing on the schedule of the weekly rest day but the preference of the Kasambahay, when based on religious grounds, shall be respected (Art. 4, Sec 21 RA 10361).
4. Standard of Treatment. The employer or any member of the household shall not subject a kasambahay to any kind of abuse nor inflict any form of physical violence or harassment or any act tending to degrade the dignity of a domestic worker. (Art 2, Sec 5 RA 10361)
5. Board, lodging and medical attendance. The employer shall provide for the basic necessities of the kasamabahay, said necessities include the following:
   1. At least three (3) adequate meals a day;
   2. Humane sleeping arrangements that ensure safety.
   3. Appropriate rest;
   4. Medical assistance in case of illnesses and injuries sustained during service without loss of benefits. (Art 2, Sec 6 RA 10361)
6. Right to privacy. Respect for the privacy of the Kasambahay shall be guaranteed at all times and shall extend to all forms of communication and personal effects. (Art 2, Sec 7 RA 10361)
7. Access to outside communication. The employer shall grant the kasambahay access to outside communication during free time. In case of emergency, access to communication shall be granted even during work time. If the Kasambahay used the employer’s telephone or other communication facilities, the costs shall be borne by the kasambahay, unless such charges are waived by the employer. (Art 2, Sec 8 RA 10361)
8. Access to education and training. The employer shall afford the kasambahay the opportunity to finish basic education and may allow access to alternative learning systems and, as far as practicable, higher education or technical and vocational training. The employer shall adjust the work schedule of the kasambahay to allow such access to education or training without hampering the services required by the employer. (Art 2, Sec 9 RA 10361)

Termination of Service

In case the duration of employment is specified in the contract, the Kasambahay and the employer may mutually agree upon notice to terminate the contract of employment before the expiration of its term (Art. 5, Sec 32 RA 10361). However, in case the duration is not determined or by nature of service, the employer of Kasambahay may give notice to end the employment relationship five (5) days before the intended termination of employment.

Both the Kasambahay and the employer may terminate the employment relationship at any time before the expiration of the contract, provided that the cause for termination is one of those expressly provided by Kasambahay Law.

In case of termination of employment initiated by the Kasambahay, the following are the causes for termination allowed by law:

1. Verbal or emotional abuse of the domestic worker by the employer or any member of the household;
2. Inhuman treatment including physical abuse of the domestic worker by the employer or any member of the household;
3. Commission of a crime or offense against the domestic worker by the employer or any member of the household;
4. Violation by the employer of the terms and conditions of the employment contract and other standards set forth under this law;
5. Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and
6. Other causes analogous to the foregoing. (Art 5, Sec 33 RA 10361)

On the other hand, in case of termination initiated by the employer, the following are the causes for termination allowed by law:

1. Misconduct or willful disobedience by the domestic worker of the lawful order of the employer in connection with the former’s work;
2. Gross or habitual neglect or inefficiency by the domestic worker in the performance of duties;
3. Fraud or willful breach of the trust reposed by the employer on the domestic worker;
4. Commission of a crime or offense by the domestic worker against the person of the employer or any immediate member of the employer’s family;
5. Violation by the domestic worker of the terms and conditions of the employment contract and other standards set forth under this law;
6. Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and
7. Other causes analogous to the foregoing. (Art 5, Sec 34 RA 10361)

Upon the severance of the employment relationship, the employer shall issue the domestic worker within five (5) days from request a certificate of employment indicating the nature, duration of the service and work performance. (Art 5, Sec 35 RA 10361)

Penalties

Any violation of the provisions of this Act declared unlawful shall be punishable with a fine of not less than Ten thousand pesos (P10,000.00) but not more than Forty thousand pesos (P40,000.00). The same is without prejudice to the filing of appropriate civil or criminal action by the aggrieved party (Art 9, Sec 40 RA 10361).

Also, since the Kasamabahay Law also requires registration with the SSS, Philhealth and Pag-IBIG, the existing laws in this regard must also be applied. Thus, under the Revised Social Security Law (Republic Act No. 8282 of 1997), failure or refusal to comply with the provisions of the law shall be punished by a fine of not less than P5,000 and not more than P20,000 or imprisonment of not less than 6 years and 1 day, and not more than 12 years, or both, at the discretion of the court. (Questions about Kasambahay Law)

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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