To-do list for the boss

The implementing rules and regulations for Batas Kasambahay, or Domestic Workers Act is a 20-page laundry list of what employers should or should not do for household employees.

The law, designed to give household employees a good work environment, was signed by President Benigno Aquino III Jan. 18, 2013, after it was passed in both houses of Congress in 2012.

In the House of Representatives, its more than 100 co-authors include Joseph Victor Ejercito, Emil Ong, and Juan Edgardo Angara. In the Senate, Jinggoy Ejercito Estrada was author and sponsor, with Loren Legarda as co-author and co-sponsor.

Households across the country are moving to comply with the new law’s requirements; failure to comply can earn employers fines of P10,000-P40,000, plus civil or criminal lawsuits. Yet, confusion covers many aspects of the law, raising frustration among employers.

Some clarification may be had through the IRR, while others may be addressed someday if the law is amended, or in the courts.

“The law is so new the courts have not yet made interpretations as applied to daily life,” notes labor lawyer Nikki Jimeno, author of A Primer on the Newly-Enacted Batas Kasambahay on the website smartparenting.

Here are some salient points of the law.

Who

Helpers, stay-in or stay-out, are covered by the new law: the all-around helper, yaya, cook, lavandera, gardener, and anyone who does domestic work in one household regularly and for a living. Excluded are service providers, family drivers, minors under foster family arrangements, and anyone who does work sporadically and not on an occupational basis.
Jimeno notes the law does not apply to those who work for multiple employers.

Wages

Monthly minimum wages are set at P2,500 in the National Capital Region; P2,000 in chartered cities and first-class municipalities; P1,500 for other cities. The Labor Code’s provision for non-diminution of benefits protects the kasambahay who gets more than the minimum wage: employers may not reduce the salary to minimum wage.

The kasambahay is entitled to 13th month pay, to be given no later than Dec. 24 or upon termination. Employers must pay the wages in cash at least once a month, and issue a payslip on pay day showing earnings and deductions. The payslip must be kept for three years.

“After three years, it is assumed employee and employer do not need it anymore. Three years is long enough,” says Jimeno.

The minimum wage will be reviewed a year from when the law became effective by the Regional Tripartite Wages and Productivity Boards, and periodically thereafter.

Benefits

One month after they are hired, helpers are entitled to membership in Social Security System, Philippine Health Insurance Corp., and the Home Development Mutual Fund, or Pag-IBIG. Employers must register themselves with these agencies as well.

Helpers who earn P5,000 a month – including those whose pay was raised to P5,000 –will pay their share of contributions. Otherwise, employers must cover all contributions.

In this instance, the Labor Code provision for non-diminution of benefits does not apply under the kasambahay law, Jimeno notes.

One reality employers have bumped into: some kasambahays do not have birth certificates, and thus cannot enroll in the government plans.

“I don’t think an employer should be liable if she can’t pay the benefits because the employee doesn’t have the birth certificate,” Jimeno says. However, she adds that alternate identification is acceptable.

The SSS, for instance, will accept alternative IDs such as a passport, driver’s license, baptismal certificate and others.

Deductions

Employers may not deduct more than 20 percent of the worker’s salary, and only with the worker’s written consent. This applies to damage caused by the worker, or repayment of loans.

Thus, in a scenario where trust is an issue, an employer has the discretion to refuse to advance a loan or one that exceeds 20 percent of the kasambahay’s pay, Jimeno says.

Time off

Employees get at least eight hours’ rest daily, a full day (24 hours) off every week, and five days’ paid vacation after a year’s service.

It is not uncommon for employees to decline the day off, because they have nowhere to go, or because going out is “gastos lang.”

“As long as your employee is amenable to alternate arrangements (which are) not against the employee’s rights,” says Jimeno, a kasambahay may waive the rest day, accumulate rest days for a longer break, or get paid for working on the day off. Employers should have a clear understanding with the kasambahay, especially if they are unable to pay more when the staff chooses to forego the day off.

Rights of the kasambahay

They are entitled to privacy, access to outside communication, three meals daily, medical assistance including rest and first aid for illnesses and injuries incurred at work, without loss of benefits.

Jimeno says it is okay to take the phone away during work hours, and give access during free time.

Helpers should be allowed to finish their education: elementary, high school or post-secondary learning. Employers may adjust work schedules to accommodate, without hampering the performance of services required. Providing financial assistance is optional.

This can be an issue for working moms who need babysitters during office hours. Classes in elementary and secondary schools are often the same time.

“The law says the employer can give opportunity or access. It is not mandatory if it conflicts with the employment agreement,” says Jimeno. “In such cases, the yaya can find an alternate schedule.”

The kasambahay may join labor unions, and be allowed to attend meetings during their free time.
For the boss: The picture for employers is now colored with various rights and obligations. Employers may require certain documents from applicants before hiring them (see Hiring).

Where there were deployment expenses, the employer may ask for reimbursement if the helper “leaves without justifiable reason within six months from employment.”

If the helper was hired through an employment agency, and leaves within a month of hiring, the employer may ask for a replacement without paying another fee. The agency should refund 75 percent of the fee if it is unable to offer a qualified replacement a month after the request is made.

The employer may terminate an employee under specified circumstances. (see Termination)

Meanwhile, employers should pay the minimum wage, give payroll slips on paydays, benefits, time off, decent lodgings, meals and medical assistance.

Employers may not tell the kasambahay to do non-household work. On the other hand, it is all right to ask a helper to work temporarily in another household – with pay – under a specified set of circumstances. This temporary arrangement may not exceed 30 days.

In addition, Jimeno notes employers have some flexibility in asking the kasambahay to do other tasks incidental to the job. For instance, if a family and their yaya have a meal at the grandparents’ home, it is all right to ask yaya to help with the cleaning up afterward.

Hiring

The new law forbids hiring minors under 15 years old. Minors aged 15-18 may not work more than eight hours a day, and 40 hours a week. They are entitled to the minimum wage, all benefits under the new law, and access to education.

Before hiring, employers may ask the job applicant for a birth certificate or other identification that shows the applicant’s age. Employers may also ask for medical, barangay, police and National Bureau of Investigation clearances. There must be an employment contract written in a language both parties understand.

Jimeno suggests the document must be in Filipino for the employee’s benefit. Employers who understand little Filipino may have the document translated into a language of their choice to ensure mutual understanding.

The contract should include various work-related information, including duties and responsibilities, length of employment, hours of work and time off, compensation and benefits.

Copies of the contract should be given to the employee and the punong barangay where the employer lives. The employer should also register with the barangay office all household employees.

However, the law does not stipulate a time frame. Nevertheless, Jimeno suggests to “do it within reasonable time: a week or two.”

Termination

Dismissing the staffer must be justified on various grounds, including misconduct and willful disobedience; committing a crime including theft or injuring a member of the household; neglect or inefficiency; breach of trust; and “any disease prejudicial to the health of the kasambahay, employer” or other household members.

If a helper is being terminated for other reasons, the employer must pay the full salary earned, plus a severance equal to 15 days’ wages. A helper getting married or pregnant is not grounds for termination.

After termination, an employer should issue a certificate of employment within five days of the kasambahay’s request.

Unlike the Labor Code, the new law does not say when a kasambahay becomes a permanent staffer.

“Since domestic employees have been given the same rights as regular employees, the Labor Code can be applied where the kasambahay law is silent,” says Jimeno. Thus, the Labor Code provision “of a six-month probation holds.”

When terminating a kasambahay, employers should “just pay earned compensation,” she says. “Give the severance if the kasambahay is a regular employee, employed six months or more, as under the Labor Code.”

She also advises that the employee’s release waiver be in Filipino.

“If a maid signs a waiver in Tagalog after receiving severance, then it will hold up in court. If the waiver is in English, then it may not hold up in court because the maid can say she didn’t understand (the document). Have witnesses co-sign the waiver that maid understood what she was signing,” Jimeno says.

On the flip side, a kasambahay may quit under certain circumstances, including abusive treatment. If she leaves without just cause, she forfeits “any unpaid salary due, not exceeding the equivalent of 15 days’ work,” according to the IRR.

On occasion, a kasambahay may not return after a day off, or as agreed after a longer break. When this happens, “the employer can assume she has abandoned the job, and may replace her,” Jimeno says.

In her article on smartparenting, Jimeno also notes that if an employment contract does not stipulate the length of service, either employer or employee may give five days’ notice to end the work relationship.

For more information, clickt Batas Kasambahay IRR for full tex, SSS for contribution schedule, PhilHealth, and Pag-ibig. Documents appended at the end of the IRR are forms: BK-1 Kontrata sa paglilingkod sa tahanan (employment contract in Filipino); BK-2 Payslip; BK-3 Certificate of employment.

First published in Tulay Fortnightly, Chinese-Filipino Digest 26, no. 4 (July 23-Aug. 5, 2013): 9-10.