Labor Law: Title III; Chapter I Employment of Women Arts. 130 - 136
Working Conditions for Special Groups of Employees
Chapter I
Employment of Women
Arts. 131 - 138
Q: What special facilities have to be provided by the employer to women employees?
Q: Is it lawful for an employer to require resignation of an employee who marries a co-employee?
R.A. No. 10151 [approved on June 21, 2011] repealed Articles 130 and 131, thereby abolishing the prohibition against night work of women
Art. 130 [132]. Facilities for women.
The Secretary of Labor and Employment shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer to:
- Provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency;
- To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women;
- To establish a nursery in a workplace for the benefit of the women employees therein; and
- To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like.
Own Notes:
Article 130 [132] mandates the Secretary of Labor and Employment to enforce safety and health standards for women employees through:
- Provide seats proper for women, allowing their use during breaks and working hours if efficiency is not compromised.
- Establish separate toilet facilities for men and women, and at least a dressing room for women.
- Establish a nursery in a workplace for the benefit of women employees.
- Determine minimum age and other standards for retirement or termination in special occupations like flight attendants through regulations.
Art. 131 [133]. Maternity leave benefits.
Every employer shall grant to any pregnant woman employee who has rendered an aggregate service of at least six (6) months for the last twelve (12) months, maternity leave of at least two (2) weeks prior to the expected date of delivery and another four (4) weeks after normal delivery or abortion with full pay based on her regular or average weekly wages. The employer may require from any woman employee applying for maternity leave the production of a medical certificate stating that delivery will probably take place within two weeks.
The maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion or miscarriage, which renders the woman unfit for work, unless she has earned unused leave credits from which such extended leave may be charged.
The maternity leave provided in this Article shall be paid by the employer only for the first four (4) deliveries by a woman employee after the effectivity of this Code.
Notes:
Maternity Leave Under the Expanded Maternity Law
- Article 131 has been repealed by the "EML Law" officially known as the "105-Day Expanded Maternity Law" or R.A. No. 11210, approved on February 20, 2019.
Salient Points of the EML Law (R.A. No. 11210)
Coverage
What are the Expanded Maternity Leave Benefits?
Continuous Period
Regardless of Frequency or Civil Status
Eligibility for Maternity Leave in the Private Sector
- The Expanded Maternity Leave Law (EMLL) covers the following:
- Female workers m the Public Sector
- Female workers in the Private Sector
- Female workers in the Informal Economy
- Female members who are voluntary contributors to the Social Security System (SSS); and
- Female national athletes
- The discussion below pertains mainly to female workers employed in the private sector.
- For Childbirth:
- With pay: 105 plus 15 days
- All females, regardless of their civil status, employment status and the legitimacy of her child, shall be granted 105 days maternity leave, with full pay.
- Additional 15 days with full pay in case the female worker qualifies as a solo parent under Republic Act No. 8972, or the "Solo Parents’ Welfare Act."
- Without pay: additional 30 days
- In cases of live childbirth, an additional maternity leave of 30 days without pay can be availed, at the option of the female worker, provided that the employer shall be given due notice.
- Due notice to the employer must be in writing and must be given at least forty-five (45) days before the end of the female worker's maternity leave. However, no prior notice shall be necessary in the event of a medical emergency but subsequent notice shall be given to the employer.
- The above period of extended maternity leave without pay shall not be considered as gap in the service.
- For Miscarriage:
- With pay: 60 days
- In cases of miscarriage or emergency termination of pregnancy, 60 days maternity leave with full pay shall be granted.
- Enjoyment of maternity leave cannot be deferred but should be availed of either before or after the actual period of delivery in a continuous and uninterrupted manner.
- In all of the above instances, the maternity leave can be credited as combinations of prenatal and postnatal leave as long as it does not exceed one hundred five (105) days or sixty (60) days, as the case may be.
- In no case shall postnatal care be less than 60 days.
- Maternity leave shall be granted to a qualified female worker in every instance of pregnancy, miscarriage or emergency termination of pregnancy regardless of frequency or legitimacy of the child.
- Requirements. To qualify for the grant of maternity leave benefit, the female worker must meet the following requirements:
- She must have at least three (3) monthly contributions in the twelve-month period immediately preceding the semester of childbirth, miscarriage, or emergency termination of pregnancy.
- In determining the female member's entitlement to the benefit, the SSS shall consider only those contributions paid prior to the semester of contingency; and
- She shall have notified her employer of her pregnancy and the probable date of her childbirth, which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide.
- Amount of benefit.
- Covered female workers availing of the maternity leave benefits must receive their full pay. Full payment of the maternity leave benefit shall be advanced by the employer within 30 days from the filing of the maternity leave application.
- Reimbursement.
- The SSS shall immediately reimburse to the employer the maternity benefits advanced to the employed female member, only to the extent of 100% of her average daily salary credit for 105 days, 120 days or 60 days, as the case may be, upon receipt of satisfactory and legal proof of such payment.
- Bar to Recovery of Sickness Benefits.
- The payment of daily SSS maternity benefits shall be a bar to recovery of sickness benefits provided under Republic Act No. 11199 (SSS Law, 2018), for the same period for which daily maternity benefits have been received.
- Consecutive Pregnancies and Multiple Childbirths.
- The payment of the SSS maternity benefits in cases of consecutive pregnancies resulting in overlapping maternity leaves and in cases of multiple childbirths shall be governed by the following rules:
- In case of the overlapping of two (2) maternity benefit claims, the female member shall be granted maternity benefits for the two contingencies in a consecutive manner.
- However, the amount of benefit corresponding to the period where there is an overlap shall be deducted from the current maternity benefit claim; and
- The female member shall be paid only one maternity benefit, regardless of the number of offspring, per childbirth/delivery.
- Liability of the Employer.
- The employer shall pay to the SSS damages equivalent to the benefits which said female member would otherwise have been entitled to in any of the following instances:
- Failure of employer to remit to the SSS the required contributions for the female worker; or
- Failure of the employer to transmit to SSS the female worker's notification on the fact of pregnancy and probable date of childbirth.
Allocation of Maternity Leave Credits
Death or Permanent Incapacity of the Female Worker
- Allocation to the Child's Father or Alternate Caregiver
- A female worker entitled to maternity leave benefits may, at her option, allocate up to seven days of said benefits to the child's father, whether or not the same is married to the female worker.
- The allocated benefit granted to the child's father under this law is over and above that which is provided under Republic Act No. 8187, or the "Paternity Leave Act of 1996".
- Lawful marriage is not a requisite for "allocated leave."
- In case of death, absence, or incapacity of the child's father, the female worker may allocate to an alternate caregiver who may be any of the following, upon the election of the mother taking into account the best interests of the child:
- A relative within the fourth degree of consanguinity; or
- The current partner, regardless of sexual orientation or gender identity, of the female worker sharing the same household.
- Non-Applicability: The option to allocate maternity leave credits shall not be applicable in case the female worker suffers miscarriage or emergency termination of pregnancy.
- Allocation for the SSS-Covered Female Workers.
- In case the female worker avails of the option to allocate, the SSS shall pay her the amount of the maternity benefit corresponding to the period not allocated.
- As applicable, the father or, in his death, absence, or incapacity, the alternate caregiver shall be granted by his employer a leave with pay equivalent to a period from one to seven days, which may be enjoyed either in a continuous or in an intermittent manner not later than the period of the maternity leave availed of.
- The female worker shall notify her employer of her option to allocate with her application for maternity leave.
- The father or alternate caregiver, as the case may be, shall notify the employer concerned of his or her availment of the allocated leave and the inclusive dates therefor.
- This written notice to the employers shall be required even if the child's father or the alternate caregiver is employed in the public sector.
- In the event the beneficiary female worker dies or becomes permanently incapacitated, the balance of her maternity leave benefits, if any, shall accrue to the child's father or to a qualified alternate caregiver as provided in the preceding sections subject to the following conditions:
- That the maternity leave benefits have not yet been commuted to cash, if applicable; and
- That a certified true copy of the death certificate or medical certificate or abstract is provided to the employers of both the female worker and the child's father or alternate caregiver.
- In case the maternity leave benefits of the deceased or permanently incapacitated female worker have already been paid to the latter in full, the child's father or alternate caregiver shall be entitled to enjoy the remaining unexpired leave credits of the female worker, if there be any, without pay: Provided, That such leave without pay shall not be considered as a gap in the service of the child's father or alternate caregiver, in both the public and private sector.
Maternity Leave Benefit Even After Employment
Q: Is maternity benefit claimable after separation from employment? YES
- Maternity leave with full pay shall be granted even if the childbirth, miscarriage, or emergency termination of pregnancy occurs not more than 15 calendar days after the termination of an employee's service, as her right thereto has already accrued.
- Such period is not applicable when the employment of the pregnant woman worker has been terminated without just cause, in which case the employer will pay her the full amount equivalent to her salary for 105 days for childbirth and sixty 60 days for miscarriage or emergency termination of pregnancy based on her full pay, in addition to the other applicable daily cash maternity benefits that she should have received had her employment not been illegally terminated.
Maternity Leave of a Female Worker with Pending Administrative Case.
- The maternity leave benefits granted under Republic Act No. 11210 and this Rules shall be enjoyed by a female worker in the public sector and in the private sector even if she has a pending administrative case.
Paternity Leaves and Other Leaves
- Paternity leave, we know, is not for female employees but it is mentioned here because the leave is aimed at taking care of the employee's wife who has given birth or has had a miscarriage. The husband's leave is seven calendar days with full pay.
- The other leaves pertaining to women employees are:
- The Battered Woman Leave
- Anti-Violence Against Women and Their Children Act of 2004, R.A. No. 9262 (March 8, 2004)
- Allows a woman employee who is a victim of violence which may be physical, sexual or psychological to apply for the issuance of a "protection order" from the court to shield her from further violence and provided are updated reliefs.
- She's entitled to a paid leave of up to ten days, extendable and when necessity arise as specified in a protection order.
- Special Leave
- Section 18 of The Magna Carta of Women, R.A. No. 9710 (August 14 2009)
- Two months with full pay if a female employee had a gynecological surgery, provided she had served six months in the preceding 12 months.
- Solo Parent's Leave
- Solo Parent's Welfare Act of 2000, R.A. No. 8972 (November 28, 2000)
- Parental leave of not more than seven working days every year to be granted to a solo parent female employee who has rendered service of at least one (1) year.
Read more on these Special Laws here.
Art. 132 [134]. Family planning services; incentives for family planning.
Establishments which are required by law to maintain a clinic or infirmary shall provide free family planning services to their employees which shall include, but not be limited to, the application or use of contraceptive pills and intrauterine devices.
In coordination with other agencies of the government engaged in the promotion of family planning, the Department of Labor and Employment shall develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment or enterprise.
Art. 133 [135]. Discrimination prohibited.
It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex.
The following are acts of discrimination:
- Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value; and
- Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes.
Criminal liability for the willful commission of any unlawful act as provided in this Article or any violation of the rules and regulations issued pursuant to Section 2 hereof shall be penalized as provided in Articles 288 and 289 of this Code: Provided, That the institution of any criminal action under this provision shall not bar the aggrieved employee from filing an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other. (As amended by Republic Act No. 6725, May 12, 1989)
Art. 134 [136]. Stipulation against marriage.
It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.
Art. 135 [137]. Prohibited acts.
It shall be unlawful for any employer:
- To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code.
- To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy;
- To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.
Art. 136 [138]. Classification of certain women workers.
Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishment for purposes of labor and social legislation.
Own Notes:
- Art. 132 [134]. Family planning services; incentives for family planning.
- Establishments with clinics must offer free family planning services, including:
- contraceptive pills
- intrauterine devices
- Department of Labor and Employment shall develop incentive bonus schemes to encourage family planning among female workers.
- Art. 133 [135]. Discrimination Prohibited.
- Employers cannot discriminate based on sex in employment terms and conditions.
- Acts of discrimination:
- Payment of a lesser compensation for work of equal value; and
- Favoring a male employee solely on account of their sexes.
- Criminal liabilities for willful commission;
- Employees can file separate actions for money claims, including damages.
- Art. 134 [136]. Stipulation Against Marriage.
- Employers cannot require women employees not to marry or
- Employers cannot dismiss women employees due to marriage.
- Art. 135 [137]. Prohibited Acts.
- The following are unlawful:
- Denying a woman employee her benefits
- Discharging a woman employee to prevent enjoyment of her benefits
- Discharging a woman employee on account of her pregnancy
- Discharging or refusing admission of a woman employee for fear of future pregnancy
- Art. 136 [138]. Classification of Certain Women Workers.
- Women working in specific establishments under employer control for substantial period are considered employees for labor and social legislation purposes.
- Applicable to women workers in:
- night club
- cocktail lounge
- massage clinic
- bar
- similar establishment
Notes:
Sexual Harassment
- R. A. No. 7877 (February 14, 1995) punishes sexual harassment.
- Sexual harassment is committed when a person demands, requests or otherwise requires any sexual favors from another regardless of whether the demand, request or requirement for sexual favor is accepted or not.
- The victim of sexual harassment may be a male or a female, regardless of position or rank in the office or school.
- Commission of sexual harassment is a valid reason to dismiss an employee. (Villarama, September 2, 1994)
- This ruling, issued in 1994, shows that sexual harassment is wrong and punishable even before the passage of R.A. No. 7877 in 1995.
- Certain acts, like caressing the nape of the secretary, amount to sexual harassment "as generally understood by the public" which therefore justify the harasser's dismissal. (Libres, May 28, 1999)
- Delfin Villarama was employed as the Materials Manager by Golden Donuts, Inc.
- Villarama, along with two others, invited the female employees of the Materials Department for dinner. After dinner, they allegedly took Divina Gonzaga, to a motel without her consent.
- Villarama was charged with sexual harassment by Gonzaga, who later resigned due to the incident.
- Villarama voluntarily agreed to resign, but two days later sought reconsideration of his termination.
- Golden Donuts, Inc. denied his request and terminated his employment.
- Villarama filed an illegal dismissal case against Golden Donuts, Inc.
- Labor Arbiter: Ruled in favor of Villarama, stating that due process was not observed in his dismissal.
- NLRC: Reversed the decision of the Labor Arbiter.
Loss of trust and confidence is a good ground for dismissing a managerial employee. It can be proved by substantial evidence which is present in the case at bench.
As a managerial employee, petitioner is bound by a more exacting work ethics. He failed to live up to this higher standard of responsibility when he succumbed to his moral perversity. And when such moral perversity is perpetrated against his subordinate, he provides justifiable ground for his dismissal for lack of trust and confidence. It is the right, nay, the duty of every employer to protect its employees from over sexed superiors.
To be sure, employers are given wider latitude of discretion in terminating the employment of managerial employees on the ground of lack of trust and confidence.
- Carlos G. Libres, an electrical engineer and Assistant Manager at National Steel Corporation (NSC), was accused of sexual harassment by his subordinate, Susan D. Capiral.
- After internal investigation, the management held that touching a female subordinates hand and shoulder, caressing her nape and telling other people that Capiral was the one who hugged and kissed or that she responded to the sexual advances are unauthorized acts that damaged her honor.
- Libres was suspended for thirty (30) days without pay.
- Libres filed a complaint for illegal suspension and unjust discrimination against NSC and its officers before the Labor Arbiter, claiming denial of due process.
- Labor Arbiter: Ruled that due process was observed, and there was a positive finding of sexual harassment justifying Libres' suspension.
- NLRC: Upheld the decision of the LA.
The disparity in the periods of filing the complaints in the two (2) cases did not in any way reduce this case into insignificance. On the contrary, it even invited the attention of the Court to focus on sexual harassment as a just and valid cause for termination. Whereas petitioner Libres was only meted a 30-day suspension by the NLRC, Villarama, in the other case was penalized with termination. As Mr. Justice Puno elucidated, As a managerial employee, petitioner is bound by more exacting work ethics. He failed to live up to his higher standard of responsibility when he succumbed to his moral perversity. And when such moral perversity is perpetrated against his subordinate, he provides a justifiable ground for his dismissal for lack of trust and confidence. It is the right, nay, the duty of every employer to protect its employees from oversexed superiors. Public respondent therefore is correct in its observation that the Labor Arbiter was in fact lenient in his application of the law and jurisprudence for which petitioner must be grateful and not gripe against.
Fear of retaliation and backlash, not to forget the social humiliation and embarrassment that victims of this human frailty usually suffer, are all realities that Capiral had to contend with. Moreover, the delay did not detract from the truth derived from the facts. Petitioner Libres never questioned the veracity of Capirals allegations. In fact his narration even corroborated the latters assertion in several material points. He only raised issue on the complaints protracted filing.
- In a work-related or employment environment, sexual harassment is committed when:
- The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee.
- The above acts would impair the employee’s rights or privileges under existing labor laws; or
- The above acts would result in an intimidating, hostile or offensive environment for the employee.
- In an education or training environment, sexual harassment is committed:
- Against one who is under the care, custody or supervision of the offender;
- Against one whose education, training, apprenticeship, or tutorship is entrusted to the offender;
- When the sexual favor is made a condition to the giving of a passing grade, or granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or considerations; or
- When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.
Q: May the employer be charged with violating the sexual harassment law even if he himself is not the harasser?
- It is the duty of the employer or the head of the work-related educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution or execution of acts of sexual harassment.
- Towards this end, the employer or head of office is required to:
- Promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or student or trainees, through their duly designated representatives. Said rules and regulations shall prescribe the procedures for the investigation of sexual harassment cases and the administrative sanctions thereof.
- The said rules and regulations should include guidelines on proper decorum in the workplace and educational or training institutions.
- Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment.
- Create a Committee on Decorum and Investigation (CODI) of cases on sexual harassment. The committee shall conduct meetings or as the case may be, with officers and employees, teachers, instructors, professors, coaches, trainors and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of alleged cases constituting sexual harassment.
- In the case of work-related environment, the committee shall be composed of at least one representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees.
- In the case of the educational or training institution, the committee shall be composed of at least one representative from the administration, the trainors, teachers, instructors, professors or coaches and students and trainees, as the case may be.
- The employer or head of office of the educational or training institution is solidarily liable for damages arising from the acts of sexual harassment committed in an employment, education or training environment, if such employer or head of office or educational or training institution is informed of such acts by the offended party and no immediate action is taken there on.
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