Dear PAO,

My partner, Harry, is a law student. He told me that under the Labor Code, I am entitled to receive night shift differential pay from my company because I work from 10 p.m. through 7 a.m., which generally extend to a few more hours every day. I brought up this matter to my boss at the call center, but he refused to pay me any night shift differential and overtime. He told me that an operations manager like myself are precluded from receiving these monetary benefits. May I ask if my boss is correct? Harry insists that I get paid more.

Debbie

Dear Debbie,

Unfortunately, your employer may be correct. Managerial employees, as well as officers and members of the managerial staff, are not entitled to the payment of night shift differential and overtime pay.

Indeed, the Labor Code of the Philippines, as amended by Presidential Decree (PD) No. 850, dated December 16, 1975, states the following:

“Art. 82. Coverage. The provision of this Title shall apply to employees in all establishments and undertakings, whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, person in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations.

“As used herein, ‘managerial employees’ refers 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.

“xxx

“Art. 86. Night shift differential. Every employee shall be paid a night shift differential of no less than ten percent of his regular wage for each hour of work performed between ten o’clock in the evening and six o’clock in the morning.

“Art. 87. Overtime work. Work may be performed beyond eight 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 thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate for the first eight hours on a holiday or rest day plus at least thirty percent thereof.”

Relative thereto, the Supreme Court elaborated on the terms “managerial employees” and “officers or members of the managerial staff” in Clientlogic Philippines, Inc. vs. Benedict Castro, G.R. No. 186070, 11 April 2011, penned by Associate Justice Antonio Eduardo B. Nachura, viz.:

“Employees are considered occupying managerial positions if they meet all of the following conditions, namely:

“1) Their primary duty consists of management of the establishment in which they are employed or of a department or subdivision thereof;

“2) They customarily and regularly direct the work of two or more employees therein;

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

“They are considered as officers or members of a managerial staff if they perform the following duties and responsibilities:

“1) The primary duty consists of the performance of work directly related to management of policies of their employer;

“2) Customarily and regularly exercise discretion and independent judgment;

“(i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of management of the establishment in which he is employed or subdivision thereof; or

“(ii) execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or

“(iii) (iii) execute, under general supervision, special assignment and tasks xxx.”

You mentioned that you are an operations manager but you did not mention your duties and responsibilities. If your duties and responsibilities fall within the aforecited conditions, then your position precludes you from enjoying the payment of both night shift differential and overtime. These benefits are primarily paid to rank-and-file employees. On the other hand, if your duties and responsibilities do not meet the afore-cited conditions, then you are entitled to receive night shift differential and overtime pay.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]