Letter to Attorney
Dear Attorney,
I hope this letter finds you well. I would like to seek your legal advice regarding a matter concerning my 13th month backpay. I have recently resigned from my previous employer, and I want to understand how my 13th month pay should be computed and included in my backpay. Specifically, I am unsure if I am entitled to receive a prorated portion of the 13th month pay for the months I worked in the company prior to my resignation.
Moreover, I would like to inquire about the timeframe within which the company should release my backpay, including the 13th month pay. If possible, please provide some legal references or cases that discuss this topic.
Thank you very much for your assistance on this matter.
Sincerely,
A Concerned Employee
Legal Article: All You Need to Know About 13th Month Pay and Backpay in the Philippines
The 13th month pay and backpay are two crucial concepts for employees in the Philippines, especially when employment ends, either due to resignation, termination, or retirement. In this article, we will explore the legal framework surrounding the 13th month pay and backpay, the conditions under which employees are entitled to them, how they are computed, and any relevant case law or Department of Labor and Employment (DOLE) rulings that affect these areas of employment law.
1. What is the 13th Month Pay?
The 13th month pay is a mandatory monetary benefit provided to employees in the Philippines, as stipulated by Presidential Decree No. 851. It is a form of financial bonus that employers are required to pay their employees, equivalent to one-twelfth (1/12) of the basic salary earned by the employee within the calendar year.
According to Section 1 of PD No. 851:
"All employers are hereby required to pay all their rank-and-file employees receiving a basic salary of not more than one thousand pesos (P1,000.00) a month, regardless of the nature of their employment, and irrespective of the methods by which their wages are paid, a 13th-month pay not later than December 24 of every year."
While the decree was initially limited to those earning a basic salary of not more than P1,000 per month, subsequent issuances, including Memorandum Order No. 28 (1986), have expanded the applicability to include all rank-and-file employees regardless of their wage levels. This means that all employees, whether receiving the minimum wage or higher salaries, are entitled to the 13th month pay.
Rank-and-File Employees vs. Managerial Employees
It is important to clarify that only rank-and-file employees are entitled to the 13th month pay. Managerial employees are excluded from this entitlement. The distinction between rank-and-file and managerial employees is based on the job description and functions of the employee. Rank-and-file employees do not have the authority to lay down or execute management policies, while managerial employees are vested with such powers.
2. When is the 13th Month Pay Given?
The 13th month pay must be paid on or before December 24 of every year. Employers have the discretion to pay it in two installments, with the first installment given no earlier than June and the second installment paid out before the December 24 deadline. However, this does not limit employers from opting to pay the entire amount at once.
3. Computation of the 13th Month Pay
The computation of the 13th month pay is based on the employee's "basic salary." The term "basic salary" refers to the regular wages or compensation earned by the employee for services rendered. It excludes certain allowances and other monetary benefits such as overtime pay, night shift differential, holiday pay, and premium pay.
The formula for computing the 13th month pay is as follows:
[ \text{13th Month Pay} = \frac{\text{Total Basic Salary Earned}}{12} ]
For example, if an employee earns a basic monthly salary of ₱20,000 and has worked the entire year, the 13th month pay would be computed as:
[ \frac{20,000 \times 12}{12} = 20,000 ]
4. Prorated 13th Month Pay in Cases of Resignation or Termination
In cases where an employee does not complete the full year of service, such as in the event of resignation or termination, the 13th month pay is prorated based on the number of months worked during the calendar year.
If an employee resigns after working for only eight months, for example, the 13th month pay will be computed as:
[ \frac{\text{Total Basic Salary for 8 Months}}{12} ]
If the employee earns ₱20,000 per month and has worked for 8 months, the prorated 13th month pay would be:
[ \frac{20,000 \times 8}{12} = 13,333.33 ]
This computation ensures that employees who do not complete the full year of service still receive a proportionate share of the 13th month pay for the time they have worked.
5. When Should the 13th Month Pay Be Paid After Resignation?
The Department of Labor and Employment (DOLE) has clarified that employees who resign or are terminated before the year-end are still entitled to their prorated 13th month pay. This should be included in the employee's final pay, which is commonly referred to as the "backpay."
According to the Labor Code of the Philippines and DOLE guidelines, the employer is obligated to release the final pay, which includes any earned wages, unused leave credits, and the prorated 13th month pay, within a reasonable period after the employee's separation from the company. While the law does not specify a strict timeline, DOLE has issued advisory opinions suggesting that the backpay should be released within 30 days after the employee’s final day of service.
6. What is Backpay?
Backpay, in general, refers to the total amount of money owed to an employee upon separation from employment. This typically includes:
- Unpaid salaries for the days worked prior to resignation or termination.
- Payment for unused leave credits, such as vacation or sick leave.
- The prorated 13th month pay.
- Any other benefits or bonuses accrued during the period of employment.
Backpay is calculated based on the employee’s final compensation package, including all forms of remuneration that the employee is entitled to but has not yet received.
7. Legal Issues Surrounding Backpay
Employees often encounter issues regarding the delayed release of backpay. Employers may delay the processing due to internal policies, clearance procedures, or disputes over the amount owed. Employees should understand their rights to ensure that they receive what is due to them.
In some cases, if an employer fails to release the backpay within a reasonable timeframe, the employee may file a complaint with the Department of Labor and Employment (DOLE) or pursue legal action before the National Labor Relations Commission (NLRC). It is always advisable for both parties to attempt an amicable settlement first before resorting to formal legal processes.
8. Are There Exemptions to the 13th Month Pay?
Certain employees are exempt from receiving the 13th month pay under the law. These include:
Government employees – Employees of government agencies, whether performing governmental or proprietary functions, are not entitled to 13th month pay. However, these employees may receive other forms of bonuses as authorized by the Civil Service Commission or other relevant authorities.
Household helpers – Domestic workers or "kasambahay" are not covered by the 13th month pay law. However, the Kasambahay Law (Republic Act No. 10361) mandates that household helpers receive other benefits, including a separate annual bonus equivalent to one month's salary after a year of service.
Employees of private companies already receiving equivalent bonuses – If an employee is already receiving a Christmas bonus or other bonuses that are equivalent to or greater than the 13th month pay, the employer may claim an exemption from paying the additional 13th month pay.
9. What Happens if the Employer Fails to Comply?
Failure to comply with the 13th month pay law constitutes a violation of the employee’s rights under labor standards. If an employer refuses or fails to pay the 13th month pay, employees may file a complaint with DOLE. The employer could be held liable for damages, including the payment of the 13th month pay, moral damages, and other applicable penalties under the Labor Code.
10. Conclusion
The 13th month pay and backpay are both crucial components of employee compensation, especially at the end of an employment relationship. Understanding how they are computed and when they should be released is essential for both employers and employees. Employees must ensure that they receive their prorated 13th month pay upon resignation or termination, while employers must ensure compliance with the law to avoid legal disputes.
The legal framework is designed to protect the rights of employees while allowing employers some flexibility in terms of payment schedules. However, both parties should engage in clear communication and follow established procedures to avoid misunderstandings and disputes. In case of disagreements, legal remedies are available through DOLE and the National Labor Relations Commission.
By being informed of their rights and responsibilities, employees and employers can foster better relations and ensure a smoother transition when employment comes to an end.