Dear Attorney,

Good day!

I hope this message finds you well. I would like to seek legal advice regarding a problem I am currently facing at work. I am employed under an agency and am currently on floating status. One of my requirements for the correction of my gender marker on my birth certificate is a Certificate of Employment (COE). However, my agency's Human Resources (HR) department is refusing to issue me this document because I am still employed and on floating status, not yet resigned.

Given the importance of this document for my gender correction, I would like to know if there is any legal basis for their refusal and what steps I can take to secure this COE. Your guidance on this matter would be greatly appreciated.

Sincerely,
A Concerned Employee

Legal Analysis: Requesting a Certificate of Employment While on Floating Status Under Philippine Law

Introduction

In the Philippines, employment relationships are governed by various laws, rules, and regulations that protect the rights and interests of both employees and employers. One of the key documents that employees may require for various legal and administrative purposes is the Certificate of Employment (COE). This document confirms that an individual has been employed by a particular company, the position held, and the duration of the employment. However, complexities can arise when an employee requests a COE while still employed but placed on floating status—a situation often encountered by employees working under agencies or in industries where work is project-based, seasonal, or dependent on fluctuating demand.

This article will comprehensively address the following key legal aspects relevant to the concern:

What is Floating Status?
Legal Right to Request a Certificate of Employment.
Grounds for Denial of a COE by HR.
Available Legal Remedies for Employees.
Importance of a COE for Legal or Administrative Purposes.

1. What is Floating Status?

In Philippine labor law, floating status refers to the temporary suspension of an employee’s work without terminating the employment relationship. This situation often arises in industries where there is fluctuating demand or cyclical work, such as in the security, construction, or manpower service industries. Employees are placed on floating status when there is no available work for them due to business conditions or changes in client contracts.

According to Article 301 of the Labor Code of the Philippines (previously Article 286), the employer has the right to place an employee on temporary suspension of work for a period not exceeding six (6) months if such suspension is due to circumstances beyond the employer’s control, such as lack of client contracts, business downturns, or economic hardships. After the six-month period, if no work is provided, the employee may be considered to have been constructively dismissed, which could trigger legal remedies.

While on floating status, employees are not terminated from their employment but are temporarily not given work. This status is typically accompanied by the non-payment of wages because no work is performed. However, the employment relationship remains intact, and the employee is still entitled to certain rights, including the right to request a Certificate of Employment.

2. Legal Right to Request a Certificate of Employment

Under Section 10, Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code, every employee has the right to request and be issued a Certificate of Employment. This certificate must indicate:

The employee's date of hire.
The position held.
The date of separation from employment (if applicable).

Even though the separation date may not be indicated for current employees, there is no explicit legal provision that prevents an employee on floating status from requesting a COE. The purpose of the COE is to establish proof of employment, which is required for various administrative and legal processes, including the correction of personal records such as the birth certificate in this case.

It is important to note that DOLE Department Order No. 174, Series of 2017, which governs contracting and subcontracting arrangements, also provides protection to workers employed by agencies or contractors, such as those placed on floating status. Employers, including manpower agencies, are still required to provide documents, including COEs, as part of their duty to their employees.

3. Grounds for Denial of a COE by HR

HR departments may sometimes deny the issuance of a COE on various grounds, though many of these reasons may not have a solid legal basis. In the context of an employee on floating status, the following are some common reasons for refusal, and their legal evaluation:

Pending Employment Status: HR may argue that a COE can only be issued to employees who have resigned or have been terminated. However, the law does not distinguish between active employees and those who have separated from the company when it comes to issuing a COE. The fact that the employee is still on floating status should not be a valid reason to deny the request.
Company Policy: Some HR departments may cite internal policies that restrict the issuance of COEs to active employees. However, company policy cannot override labor laws that provide for the right of the employee to obtain a COE.
Fear of Misuse: HR may fear that issuing a COE to an employee on floating status could lead to misunderstandings about the employee’s current status, especially if the employee uses the COE to seek other employment. However, this concern does not exempt the company from fulfilling its legal obligation to issue the certificate.

4. Available Legal Remedies for Employees

If an employee's request for a COE is unjustifiably denied, the following remedies may be pursued:

Filing a Complaint with the Department of Labor and Employment (DOLE): The employee may file a request for assistance or complaint with the DOLE. DOLE provides assistance to employees whose rights under labor laws, including the right to obtain a COE, are violated. The Single Entry Approach (SEnA) program of DOLE is an accessible option for resolving such disputes through mediation without the need for a formal legal case.
Filing a Complaint for Unfair Labor Practice (ULP): If the refusal to issue a COE is part of a broader pattern of discriminatory or oppressive practices by the employer, the employee may consider filing a complaint for ULP under Article 258 of the Labor Code. While a single instance of refusal may not rise to the level of ULP, it could be indicative of an employer's intent to undermine the employee's rights.
Filing a Complaint for Damages: If the refusal to issue the COE results in specific damages to the employee, such as the inability to process legal documents like a gender correction, the employee may explore filing a civil action for damages under Articles 19, 20, and 21 of the Civil Code for abuse of rights. This would require proving that the denial caused harm and was done in bad faith.

5. Importance of a COE for Legal or Administrative Purposes

The COE plays a crucial role in various legal and administrative proceedings. In this case, the employee needs the COE to comply with the documentary requirements for correcting their gender marker on their birth certificate. Failure to provide the COE could delay or complicate this process, potentially leading to emotional distress, financial costs, or even legal challenges.

Moreover, as many legal processes in the Philippines involve strict documentary requirements, employees must be able to access their COEs when needed. Whether for employment verification, visa applications, bank loan applications, or civil registry corrections, the COE serves as an indispensable record of an individual’s professional history.

Conclusion

Under Philippine labor law, employees have a clear legal right to request and be issued a Certificate of Employment, regardless of their employment status. This right extends to employees on floating status, who remain employed but are temporarily without work. HR departments have no valid legal basis to refuse the issuance of a COE based solely on the fact that the employee has not yet resigned or been terminated. In situations where HR unjustifiably denies a request for a COE, employees may seek remedies through the DOLE or the courts.

The refusal to issue a COE not only violates labor laws but may also have significant negative implications for the employee, particularly when the COE is required for important legal or administrative processes, such as correcting gender information on a birth certificate.

For employees in this situation, taking the appropriate legal steps can help ensure that their rights are protected, and they can obtain the documents they need to fulfill their legal and personal obligations.

This response provides a comprehensive guide on requesting a Certificate of Employment while on floating status. If the HR department continues to refuse the issuance of the COE despite the legal basis presented, seeking legal assistance or filing a formal complaint may be necessary to protect the employee's rights.