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Burden of proof in labor cases

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1. Summary

  • Overtime pay is an additional pay of 25% of the hourly rate for work done in excess of eight (8) hours.
  • COLA is excluded from the computation
  • Burden of proof is on the employee to show he was duly authorized to do overtime work and in fact did such work.

2. Concept

Overtime pay is an additional pay of 25% of a covered employee’s hourly rate for work performed beyond eight (8) hours a day or for overtime work.

Work may be performed beyond eight (8) hours a  day provided that the employee is paid for the overtime work, an additional  compensation equivalent to his regular wage plus at least twenty-five percent (25%)  thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof (Article 87, P.D. 442, Labor Code)

a. General rule

The general rule is that no employee may be made to work beyond eight hours a day against his will. (Last paragraph, Section 10, Rule I, Book III, Omnibus Rules Implementing the Labor Code)

b. Exceptions: When overtime may be compulsory

In any of the following cases, an employer may require any of his employees to work beyond eight (8) hours a day, provided that the employee required to render overtime work is paid the additional compensation required by these regulations:

1) When the country is at war or when any other national or local emergency has been declared by Congress or the Chief Executive;

2) When overtime work is necessary to prevent loss of life or property, or in case of imminent danger to public safety due to actual or impending emergency in the locality caused by serious accident, fire, floods, typhoons, earthquake, epidemic or other disaster or calamities;

3) When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other causes of similar nature;

4) When the work is necessary to prevent loss or damage to perishable goods;

5) When the completion or continuation of work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer; or

6) When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon. (Section 10, Rule I, Book III, Ibid.)

Thus, to require overtime work without the employee’s consent, either one of the above circumstances must be present and invoked by the employer.

3. Coverage

The benefit applies to all employees except these “exempt employees”:

1. Government employees, whether employed by the National Government or any of its political subdivisions, including those employed in government-owned and/or controlled corporations with original charters or created under special laws;

2. Managerial employees, if they meet all of the following conditions:

2.1. Their primary duty is to manage the establishment in which they are employed or of a department or subdivision thereof;

2.1. They customarily and regularly direct the work of two or more employees therein; and

2.3. They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to hiring, firing, and promotion, or any other change of status of other employees are given particular weight.

3. Officers or members of a managerial staff, if they perform the following duties and responsibilities:

3.1. Primarily perform work directly related to management policies of their employer;

3.2. Customarily and regularly exercise discretion and independent judgment

3.3. (a) Regularly and directly assist a proprietor or managerial employee in the management of the establishment or subdivision thereof in which he or she is employed; or (b) execute, under general supervision, work along specialized or technical lines requiring special training, experience, or knowledge; or (c) execute, under general supervision, special assignments and tasks; and

3.4. Do not devote more than twenty percent (20%) of their hours worked in a workweek to activities which are not directly and closely related to the performance of the work described in paragraphs 5.1, 5.2, and 5.3 above;

4. Kasambahay and persons in the personal service of another;

5. Workers who are paid by results, including those who are paid on piece rate, takay, pakyaw, or task basis, and other non-time work, if their output rates are in accordance with the standards prescribed in the regulations, or where such rates have been fixed by the Secretary of Labor and Employment; and

6. Field personnel, if they regularly perform their duties away from the principal or branch office or place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

Employees who are not excluded are referred to as “covered employees.” (DOLE-BWC Handbook on Workers’ Statutory Monetary Benefits)

4. Computation

These are the steps on how to compute for holiday pay.

Step 1: Determine the employee’s hourly rate.

daily rate ÷ 8 hours = hourly rate

Example: Php800.00 ÷ 8 hours = Php100.00/hour

Step 2: To get the hourly overtime pay, compute for 25% of the hourly rate of a total of 125%.

hourly rate x 125% = overtime hourly rate

Example: Php100.000/hour x 125% = Php125.00/hour

Step 3: Multiply the overtime hourly rate against the hours worked (e.g. 2 hours).

overtime hourly rate x 2 hours of work = pay with overtime pay

Example: Php125.00/hour x 2 hours = Php250.00

Step 4: Add pay with overtime pay for ordinary hours rendered (e.g. 6 hours).

pay with overtime pay + pay for ordinary hours = day’s wage

Example: Php250.00 + Php600.00 = Php850.00

a. COLA, excluded

Cost of living allowance is excluded in the computation of overtime pay. (Ibid.)

5. Burden of proof: on the employee

Whether an employee worked overtime and be entitled to overtime pay must be proven by the employee.

In general, the burden of proof for paying monetary claims which are incurred in the normal course of business is on the employer. However, “for overtime pay, premium pays for holidays and rest days, the burden is shifted on the employee, as these monetary claims are not incurred in the normal course of business. It is thus incumbent upon the employee to first prove that he actually rendered service in excess of the regular eight working hours a day, and that he in fact worked on holidays and rest days.” (Minsola v. New City Builders, Inc., G.R. No. 207613, 31 January 2018)

A monetary claim that is incurred in the normal course of business refers to those that the employee would receive if there were no additional circumstances, such as rendering overtime work, doing work on a special day, and so on. Hence, an employee is entitled to his daily wage, 13th month pay, among others.

However, an employee does not usually receive overtime pay nor premium pay because they are conditioned on whether overtime work was done or whether work was performed on a rest day or special non-working day. Since an employer does not usually require overtime nor work on a rest day or special day, overtime pay and premium pay are not “incurred in the normal course of business.” If this is the case, it is the employee who has the burden of proof that he was duly and properly authorized to do overtime work or to render work on a rest day or a special non-working day. That is why in many companies, an overtime work form or a special work form is required to be filled-up by the employee and signed by his immediate supervisor as proof.

6. Employment contract, company policies, CBA

The above discussion may be superseded by any stipulation favorable to the employee via an employment contract, company policies, collective bargaining agreement, or analogous thereto.

References

  • Presidential Decree No. 442, a.k.a. Labor Code
  • Omnibus Rules Implementing the Labor Code
  • DOLE-BWC Handbook on Workers’ Statutory Monetary Benefits 
  • Jurisprudence or Supreme Court Decisions
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