Hiding Behind a Managerial Designation to Circumvent the Law
The mere designation of a rank-and-file employee of a title as an officer does not ipso facto means that an employee is under a managerial position. The Labor Code of the Philippines specifically provides that “managerial employees refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff (LC, Book III, Art.82). In this case, if the employee does not posses any supervisory or managerial function, he cannot be considered as a managerial employee even if he has been designated as an officer.
It is a clear and plain violation of the law to deprive the rank-and-file employee of the benefits like Premium Pay, Overtime Pay, and Holiday Pay appropriate and proper to his position by maliciously designating him as an officer or a managerial employee. The focal point to consider, in determining whether or not the employee is a managerial employee or not, is the actual work performed by the employee.
Premium Pay, Overtime Pay, and Holiday Pay must be given to all employees except to the specified persons duly provided for by law (LC, Arts 87,94). A managerial employee is included in the exception that is the reason why employers would want their employees, although not performing a managerial function nor an officer of the managerial staff, to be designated as a managerial employee. This is, however, a blatant disregard and ridicule of the law and ought not to be tolerated.
In order to be considered as a Managerial employee, the following conditions must be considered:
Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof.
They customarily and regularly direct the work of two or more employees therein.
They have authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to promotion or any other change of status of employees are given particular weight.
Likewise, to be considered as officers or members of a managerial staff, the following duties and responsibilities must be present:
The primary duty consists of the performance of work directly related to management policies of their employer;
Customarily and regularly exercise discretion and independent judgment; and
Regularly and directly assist a proprietor or managerial employee whose primary duty consist of the management of the establishment in which he is employed or subdivision thereof;
Who do not devote more than 20% of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs 1, 2, and 3 above. (Handbook on Workers Statutory Monetary Benefits)
In the absence of the following conditions and requirements, the employee cannot and should not be considered as a managerial employee in determining whether or not the employee is entitled to the above mentioned benefits. It is a patent infringement of the Labor Code and contrary to law.
I would therefore recommend that the employee immediately assert his right to full protection to labor (Labor Code, Art. 3) in order to impede the continuous disregard of his rights. The concern must be primarily brought to the company’s attention before going to the National Labor Relations Commission (NLRC) for arbitration to avoid early dismissal for failure to exhaust administrative remedy.
A formal letter should be addressed to the company for the immediate correction of the company policy and for the reimbursement thereof of payment not properly compensated.
Claudio Gripal Requiño II
For further queries please email
claude_requino@ispx.com.ph
