If the Four-Fold test applies, the volunteer may be considered an employee.

Volunteers

Volunteers are generally those who offer their services without any exchange of compensation. They gratuitously offer their assistance in the hopes of helping out. With the services that they render to an establishment, is it possible that they can be considered as employees?

To answer the question, it is important to discuss how to identify whether one is an employee.

Who is an employee?

In the Labor Code, an employee includes “any individual employed by an employer.”[1] In contrast, an employer includes “any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the Government and all its branches, subdivision and instrumentalities, all government-owned or –controlled corporations and institutions, as well as non-profit private institutions, or organizations.”[2]

As you may readily observe, the definition of an employee is circular and does not give enough information. The Supreme Court has, thus, expanded the definition by providing for the Four-Fold test in determining whether there is an employer-employee relationship between the parties.

Four-fold test

The Four-Fold Test is used to determine whether there is an employer-employee relationship between the parties. These are the elements generally considered:

  1. The selection and engagement of the employee;
  2. The payment of wages;
  3. The power of dismissal; and
  4. The employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished.[3]

The last one or the “power of control” is the most important one.[4]Without the power to control the employee with respect to the means and methods by which his work is to be accomplished, there is no employer-employee relationship between the parties.[5]

Is a volunteer an employee?

Generally, a volunteer is not an employee – unless the Four-Fold test applies.

The Four-Fold test settles the issue on whether someone is an employee or not in an establishment. It is not the designation (e.g. volunteer, talent, etc.) but the law that ultimately decides the existence of employer-employee relationship between the parties. Thus, even if the parties agree to a volunteer arrangement but the Four-Fold test applies to them, the volunteer will be considered an employee and the establishment an employer.

The following case is instructive:

Filipinas Broadcasting Network, Inc. v. Mapa
G.R. No. 118892, 11 March 1998

Complainant claimed that he was an employee of respondent Filipinas Broadcasting Network, Inc. In defense, the company responded saying that the complainant was a volunteer radio reporter. “As a volunteer reporter, [Complainant] was not to be paid wages as an employee of DZRC but he was permitted to find sponsors whose business establishments will be advertised every time he goes on the air. Most importantly, [Complainant’s] only work consisted of occasional newsbits or on-the spot reporting of consisted of occasional newsbits or on-the spot reporting of incidents or newsworthy occurances, which was very seldom.”

HELD: The complainant was a volunteer.

Engagement and Payment of Wages

“Let us consider the circumstances of the [the Complainant’s] engagement in DZRC before January 16, 1992. [The Respondent] did not act on his application for employment as a radio reporter because [the Complainant] admittedly failed to present a clearance from his former employer. Nevertheless, [the Complainant] volunteered his services, knowing that he would not be paid wages, and that he had to rely on financial sponsorships of business establishments that would be advertised in his reports. In other words, [the Complainant] willingly acted as a volunteer reporter, fully cognizant that he was not an employee and that he would not receive any compensation directly from the petitioner, but only from his own advertising sponsors.

“The nature of [the Complainant’s] engagement is evident from theaffidavit of Allan Almario and Elmer Anonuevo who served under identical circumstances. The two affirmed the following:

“1. We personally know Simeon Jun Mapa, a volunteer reporter at DZRC just like us;

“2. As a volunteer reporters we know [sic] that we will not receive any salary or allowance from DZRC because our work was purely voluntary;

“3. As incentive for us, the management of DZRC allowed us to get our own sponsors whose business establishments we mention every after [sic] field report was made by us;

“x x x

“4. During our stint as volunteer reporters we had several sponsors each who paid us P300.00 per month.

“The above statement is corroborated by Carlito Baylon, one of private respondents advertising sponsors. In his affidavit dated June 10, 1993, he averred:

“2. I personally know Simeon Jun Mapa.

“Sometime in May, 1990, he went to me and asked if I could be one of his sponsors because he was accomodated by DZRC as volunteer reporter. He explained to me that, he will not be receiving any salary from DZRC[,] hence, he was soliciting my support;

“3. Taking pity on him, I agreed to be one of his sponsors. The condition was, I will have to pay him P300.00/month. In exchange thereto, he will have to mention the name of my restaurant everytime he renders a report on the air;

“4. My sponsorship lasted for about five (5) months after which I discontinued it when I rarely heard Jun Mapa in DZRC program.

“Indeed, private respondent himself admitted that he worked under the said circumstances. The bio-data sheet signed by Mapa himself, in which he acknowledged that he was not an employee, states in part:

“Work experiences:

“DWGW . Reporter/Newscaster 1970-1980

“DZGB . Reporter 1983-1990

“DZRC . Reporter 1990-1991

“for free not recognized due to no appointment.”

(Underscoring supplied.)

In his letter dated October 7, 1991, which he sent to the general manager of Filipinas Broadcasting Network (owner of DZRC), Mapa again acknowledged in the following words that he was not an employee:

“I am [sic] Mr. Simeon Mapa, Jr. respectfully request your good office to reconsider my previous application submitted last March 1990 as a reporter of DZRC AM.

“May I inform you that since the submission of such application I worked until September 6, 1991 for free of services [sic]. Hoping that Ill be given the chance to be recognized as a regular reporter.

“With this, I respectfully wish to follow up my application for recognition. (Italics supplied.)”

“There is no indication that these two circumstances were made under duress. Indeed, private respondent himself did not dispute their voluntariness or veracity. It is clear that he rendered services knowing that he was not an employee. Aware that he would not be paid wages, he described himself as a volunteer reporter who was, as evident from his letter, hoping for the chance to be recognized as a regular reporter. In fact, [the employer] acted favorably on this letter and accepted his application as an employee effective on January 16, 1992.

Power of Dismissal

“Likewise, the evidence on record shows that [the Respondent] did not exercise the power to dismiss [the Complainant] during the period in question. In September 1991, [the Complainant] ceased acting as a volunteer reporter, not because he was fired , but because he stopped sending his reports. Ignacio Casi, Office Supervisor of DZRC, declared in his affidavit that Mapa told him that he [was] quitting already because his sponsors were no longer paying him of [sic] his monthly contract with them. Mapa did not controvert this statement. In fact, his aforesaid letter of October 17, 1991 expressed his hope of being given the chance to be recognized as a regular reporter. [The Complainant’s] attitude in said letter is inconsistent with the notion that he had been dismissed.

Mapa Was Not Subject to Control of [the Employer]

“The most crucial test the control test demonstrates all too clearly the absence of an employee-employee relationship. No one at the DZRC had the power to regulate or control [the Complainant’s] activities or inputs. Unlike the regular reporters, he was not subject to any supervision by [the Respondent] or its officials. Regular reporters are required by the [the employer] to adhere to a program schedule which delineates the time when they are to render their reports, as well as the topic to be reported upon. The substance of their reports are [sic] oftentimes screened by the station prior to [their] actual airing. In contrast, volunteer reporters are never given such a program schedule but are merely advised to inform the station of the reports they would make from time to time.

“Indeed, DZRC, the [the Respondent’s] radio station, exercised no editorial rights over his reports. He had no fixed day or time for making his reports; in fact, he was not required to report anything at all. Whether he would air anything depended entirely on him and his convenience.

“The absence of [the Respondent’s] control over private respondent is manifest from the sworn statement of the traffic manager of petitioner, Ignacio Casi, who deposed in part:

“xxx xxx xxx

“4. Jun Mapa, just like the other volunteer reporters, was not obliged to render field reports, at a particular time and in a particular program. They render report as they wish or see fit;

“5. The management (DZRC) does not collect anything from the sponsors of Jun Mapa. They (sponsors) pay directly to him;

“6. Being the Office Supervisor, I know for a fact that Jun Mapa seldom renders report on the air. He has no assigned program either. He was on and off the air, so to speak;

“7. Finally, some time in September, 1991, Jun Mapa told me that he is quitting already because his sponsors were no longer paying him of his monthly contract with them.”

“In Encyclopedia Britannica (Philippines) Inc., v. NLRC, we reiterated that there could be no employer-employee relationship where the element of control is absent; where a person who works for another does so more or less at his own pleasure and is not subject to definite hours or conditions of work[;] and in turn is compensated according to the result of his efforts and not the amount thereof, we should not find that the relationship of employer-employee exists. In the present case, [the employee] worked at his own pleasure and [was] not subject to definite hours or conditions of work.

Given the above-discussed case, it is possible that a volunteer may later on claim to be an employee and file a labor complaint against the establishment. In the Filipinas Broadcasting Network case, the establishment was fortunate to have various documentation ordocumentary evidence to prove the volunteer agreement between the parties: (a) Affidavit of Allan Almario who is a volunteer, (b) Affidavit of Elmer Anonuevo who is a volunteer, (c) Affidavit of Carlito Baylon who is an advertiser, (d) Bio-Data of Complainant acknowledging that he was a volunteer, (e) Letter of Complainant acknowledging that he is a volunteer.

Without such documentary evidence, and if the establishment failed to establish lack of control, it could have had a different outcome – i.e. the Complainant could have been declared an employee and the employer would have been liable for illegal dismissal.

Employers should always bear in mind that in labor cases it all comes to down to documentary evidence. If the establishment fails to produce documentation in a labor case, it may lose that case – despite having had a different verbal agreement with the volunteer.

Best Legal Practices

As there is a risk of volunteers who may later on claim that they are employees, employers should observe the following best legal practices in relation to engaging volunteers.

1. Require a Signed Application Letter to Become a Volunteer

For anyone who wants to become a volunteer, he/she should submit asigned Application Letter to Become a Volunteer. This is to establish the intent of the volunteer in joining the organization. It is also the first documentation which will clearly establish the relationship between the parties.

2. Issue a Notice of Approval of Application

Issue a Notice of Approval for the Application and serve it to the would-be volunteer. Ensure that you have proof of service (e.g. receiving copy, affidavit of service, registry return card, etc.).

3. Fill-up a Company Form for Volunteers

Require the application to fill-up a Company Form for Volunteers in order to obtain the necessary personal information, skills, qualifications, and relevant information. Make sure to include a clause therein that the applicant agrees and accepts to his being a volunteer.

4. Execute a Volunteer Service Agreement

A Volunteer Service Agreement is a very important piece of document to shield establishments from potential labor complaints. Further, it should have the following contractual clauses for added protection of the establishment:

Subject-Matter – A statement detailing the subject matter of the agreement – which is on volunteering.

Representation of the Parties – A declaration by both parties wherein the establishment will indicate its nature of business and the volunteer stating therein that he/she is a volunteer and not an employee.

No employer-employee relationship – A stipulation clearing stating that there is no employer-employee relationship between the parties.

Release, Waiver, and Quitclaim – A clause wherein the volunteer releases, waives, and quits any and all claims or causes of action against the establishment arising out of or in connection with the volunteering.

Jurisdiction – A stipulation that any conflict or issues arising out of the agreement should be filed in the proper courts of the city where the establishment has principal place of business, and not with the Department of Labor and Employment.

5. Notarize the Vital Documents: Company Form, Volunteer Service Agreement

As with employment contracts, the Company Form and Volunteer Service Agreement should be notarized to convert it into a public document. As a public document, it will carry more weight as it will enjoy the presumption of regularity as to its execution. That is to say, the volunteer in fact voluntarily, willfully, and deliberately executed and signed the Volunteer Service Agreement without any force, duress, or intimidation.

6. Avoid Exercising Control over the Volunteer

As much as possible, avoid exercising control over the volunteer. Do note that the control test is the most important element of the four-fold test. Instead of controlling the volunteer, inform him/her of the policies of the establishment and the desired results/outcome for any work he/she is doing.

7. Avoid Paying Salaries to the Volunteer

As payment of salaries is also one of the elements in the four-fold test, avoid paying the volunteer salaries, emoluments, or have any form of profit-sharing. These practices could be interpreted later on as a circumvention of the employer-employee relationship.

8. Provide for Allowances or Reimbursements

Instead of salaries, you may pay for allowances or reimbursements to cover for their transportation, food, and other related expenses while being a volunteer for your establishment.

9. Require Clearance and Exit Documents for Outgoing Volunteers

As an added piece of documentation, it is best to require the outgoing volunteer to undergo a clearance process and have him sign exit documents which clearly state the end of his/her period of volunteering with your establishment.

10. In case of a labor complaint, generate documentation needed to establish volunteer arrangement.

If there is one important thing to learn from the Filipinas Broadcasting Network case – the establishment was very wise and prudent in generating several and various documents to establish the volunteer arrangement. They requested affidavits from other volunteers and of a sponsor to confirm that the complainant was a volunteer. These pieces of documents further corroborated their position on the case and helped in winning the labor case.

 

These are best legal practices when it comes to engaging volunteers. Always remember that labor cases ultimately comes down to documentation. With the possibility of a volunteer claiming to be an employee later on, you may want to take the necessary precautions and due diligence in avoiding liabilities arising out of a labor case.

*Comment or feedback: info@jdpconsulting.ph

References

[1] LABOR CODE. Article 97 (c).

[2] Ibid. Article 97 (b).

[3] “Brotherhood” Labor Unity Movement of the Philippines v. Zamora, G.R. No. L-48645, 07 January 1987.

[4] Ibid.

[5] Continental Marble Corp. v. Nasayao, G.R. No. L-43825, 09 May 1988.