Dear PAO,

I have been a loyal and hardworking security guard in a security agency since I was 19. However, I was no longer given a new assignment after the company where I was formerly assigned ceased operations. I was told that I was on a floating status. I tried looking for its meaning under the Labor Code but could not find it. What is floating status, and can I file a case for illegal dismissal against the agency?

Franky Monti

Dear Franky Monti,

The Supreme Court, in the case of Ador v. Jamila and Company Security Services, Inc. (GR 245422, July 7, 2020, penned by Associate Justice Amy Lazaro-Javier), pronounced that “[a]lthough the Labor Code does not provide a specific provision for temporary ‘off-detail’ or ‘floating status,’ the Court has consistently applied Article 292 of the Labor Code to set the period of employees’ temporary ‘off-detail’ or ‘floating status’ to a maximum of six (6) months.”

Article 292 of the Labor Code provides:

“ART. 292 (previously 286). When employment not deemed terminated. — The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.”

Citing an earlier case, the Supreme Court, in the case of Salvaloza v. NLRC (GR 182086, Nov. 24, 2010, penned by Associate Justice Antonio Eduardo Nachura), described what a temporary off-detail or floating status is and confirmed its legality, viz.:

“Temporary ‘off-detail’ or ‘floating status’ is the period of time when security guards are in between assignments or when they are made to wait after being relieved from a previous post until they are transferred to a new one. It takes place when the security agency’s clients decide not to renew their contracts with the agency, resulting in a situation where the available posts under its existing contracts are less than the number of guards in its roster. It also happens in instances where contracts for security services stipulate that the client may request the agency for the replacement of the guards assigned to it even for want of cause, such that the replaced security guard may be placed on temporary ‘off-detail’ if there are no available posts under the agency’s existing contracts. During such time, the security guard does not receive any salary or any financial assistance provided by law. It does not constitute a dismissal, as the assignments primarily depend on the contracts entered into by the security agencies with third parties, so long as such status does not continue beyond a reasonable time. When such a ‘floating status’ lasts for more than six (6) months, the employee may be considered to have been constructively dismissed.”

Your narration of facts does not specify when your floating status began. That status alone, however, does not automatically entitle you to file an illegal dismissal case. You may only file such case if there is no valid basis for placing you on floating status or if your floating status exceeds six months. In which case, you may be considered constructively dismissed, giving you a legal ground to file an illegal dismissal case against your employer before the National Labor Relations Commission (NLRC).

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.

Thank you for your continued 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].