Dear PAO,

I am a driver of Company AA engaged in the business of delivering the products of different companies to their respective clients. I have been employed with Company AA for five years now. However, I have not received the benefits that are given to regular employees because Company AA just renews my contract every seven months, based on my performance evaluation. Am I not already a regular employee? When I go to work during regular holidays, how much should be my salary for those days?

Nard

Dear Nard,

By now, you are considered a regular employee of Company AA. You have been working for it for more than one year already and your job is necessary and desirable to the business of Company AA. According to you, Company AA is engaged in delivering the products of its customers. Hence, it needs drivers so that it can continue its business operations.

According to Article 280 of the Labor Code, an employee shall be considered as a regular employee, where the employee has been engaged to perform activities, which are usually necessary or desirable in the usual business or trade of the employer. This provision applies even if there is a written or oral agreement between the employer and employee which does not observe this provision.

It is true that the long period of time an employee has been with the company does not automatically make such an employee a regular employee of the said company. However, the length of time by which an employee is employed can be used as a basis to determine whether the employee is hired for a specific undertaking only, in which case he is considered as a project employee, or if in fact the job is really necessary and indispensable to the business of the employer, in which situation the employee is considered as a regular employee.

The company could not just claim that you are merely a contractual employee because your contract is just renewed every seven months. An employee’s employment status is governed by law. The employer could not prevent an employee from acquiring the status of a regular employee by merely renewing the employee’s contract. The regular status of an employee is governed by Article 280 of the Labor Code and not by the contract between the employer and the employee.

You are entitled to a holiday pay during regular holidays, as long as the number of the employees of your company is not less than ten workers. That is the rule under Article 94 of the Labor Code.

The amount a worker receives as wages during holidays would vary depending on the circumstance. Under Memorandum Circular No. 01 (dated March 8, 2004), if the regular holiday is also the employee’s regular workday, the said employee would receive 100 percent of his or her salary if he or she does not work on the said regular holiday. If he or she works on the said day, he or she is entitled to receive an amount equivalent to 200 percent of his or her salary, during the first eight (8) hours of his or her work. If the said regular holiday is on an employee’s rest day or coincides with the employee’s rest day, the said employee is still entitled to receive 100 percent of his or her salary even if he or she does not work on the said regular holiday. However, if he or she works on the said regular holiday even if it is supposed to be his or her rest day, the said employee should be paid for the first eight hours of work with an amount equivalent to 200 percent of his or her salary, plus 30 percent of the said 200 percent. The following rules apply only to regular holidays. The rule is different for special non-working holidays. The same Memorandum Circular No. 01 provides for the guidelines during special non-working holidays.

We hope that we were able to answer your queries. Please be reminded that this advice is 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.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to This email address is being protected from spambots. You need JavaScript enabled to view it.