Call Center - account went on EOL (end of life)

Hello Attorney!

I am working in a call center for 7 years already. The account that I am working with announced that they will be pulling out from the call center and our HR notified us that we will be put on temporary reserved status on a certain date. Hence while we are on reserved status (floating), we will not be entitled to receive salary and other benefits on the days that we have no work until they have identified a position where we are qualified.

With this, here are some questions regarding my issue:

1. Is it legal for us not to receive our salary on the days that we have been pulled out from the account? We are actually regular employees of the company based in our contract. The said account will end at the end of July and they removed people from the account batch by batch meaning, unti unti kaming tinanggal sa account kahit hindi pa naman totally nag end ang account.

2. We are required to attend the screening process in case we plan to stay in the company. Screening process includes interviews and exams. If in case hindi kami pumasa sa interview, patuloy kami hahanapan ng account na pwede namin applyan and we need to pass the screening process for us to be able to have a job within the company again

3. Our HR told us that we will be on reserved status in a period of 6mos pero hindi yung nakalagay sa notice na pinapirmahan sa amin. Sabi lang nila hahanapan lang nila kami ng account na papasukan pero hindi automatic transfer. Dadaan sa screening.

4. If in case we decide to file a case at NLRC, anong case ang ipa file namin at anong pwedeng maging relief?

5. Do we need to have a lawyer to support us with our allegations? If so, how much fees do we need to pay.

Thank you in advance for your reply!

Floating status not exceeding six (6) months is allowed under the Labor Code.

Under Article 286 of the Labor Code it is provided as follows:

ART. 286. When employment not deemed terminated. — The bonafide suspension of the operation of a business or undertaking for a period not exceeding six 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 month from the resumption of operations of his employer or from his relief from the military or civic duty.

In the event that your floating status exceeds six (6) months and you were not informed whether there is an available position or no notice of closure is served, you can file for an illegal dismissal case.

thank you so much for your reply Attorney! Actually, sinabihan lang kami na floating for 6mos at hahanapin kami ng work. But then, hindi ito naka black and white. Yung notice na natanggap namin hindi naka sulat dun kung hanggang 6mos. Basta sabi hahanapin kami ng account na lilipatan. Without pay dun sa mga araw na wala pa kaming trabaho.

Ang question po kasi, Since regular employee kami, why do we need to go through the screening process like sa mga new hires. The company is saying that we have hundreds of vacant seats but then conditional ang pag transfer sa amin ng trabaho. We need to pass the interviews and exams. Eh di para kaming new hire non? Yun po sana ang gusto namin malinawan.

Thanks again for your immediate response.

shimybons wrote:thank you so much for your reply Attorney! Actually, sinabihan lang kami na floating for 6mos at hahanapin kami ng work. But then, hindi ito naka black and white. Yung notice na natanggap namin hindi naka sulat dun kung hanggang 6mos. Basta sabi hahanapin kami ng account na lilipatan. Without pay dun sa mga araw na wala pa kaming trabaho.

It's not black and white on your float memo/notice because it's already written in the law.

The float status is really without pay unless the company is willing to (voluntarily) give your salary.

A fair day's wages for a fair day's work.

shimybons wrote:Ang question po kasi, Since regular employee kami, why do we need to go through the screening process like sa mga new hires. The company is saying that we have hundreds of vacant seats but then conditional ang pag transfer sa amin ng trabaho. We need to pass the interviews and exams. Eh di para kaming new hire non? Yun po sana ang gusto namin malinawan.

You need to undergo screening to find out if you will meet the requirements of the program being considered. There is such a thing as culture fit, aptitude, etc.

You might be endorsed to a sales account but if outbound is not one of your skills, it would be futile to put you on the production floor.

In a few CCs I know, they need a certain level of expertise for a gaming account. Experience is key, not just tenure.

Thanks again for your reply.

So really what they did to us is legal based on your explanations. What about those na nilipat po nila sa account na technical even though the person is not really techie. May mga ganun instances po kasi.

Also about po sa float status, may nabasa po kasi ako before na yung floating is applicable sa mga security guards kasi karamihan sa kanila ay hawak ng mga agencies. I am not sure with call center employees that is why I am seeking for legal advice here.

I have also read about constructive dismissal and I feel na yun ang nangyari sa amin. I am just not sure if this is what happened but based on my understanding, ganun na nga po ang nangyayari. Please enlighten me.

I am really thankful for your responses at nagkakaron na po ng linaw sa akin ang mga nangyayari. I am just really confused and I am praying to get answers here.

shimybons wrote:Thanks again for your reply.

So really what they did to us is legal based on your explanations. What about those na nilipat po nila sa account na technical even though the person is not really techie. May mga ganun instances po kasi.

That is all within their discretion.

shimybons wrote:Also about po sa float status, may nabasa po kasi ako before na yung floating is applicable sa mga security guards kasi karamihan sa kanila ay hawak ng mga agencies. I am not sure with call center employees that is why I am seeking for legal advice here.

It is applicable to call center employees as well. The labor code does not differentiate between types of employment or jobs.

Various rulings and opinions given by DOLE to different companies state that such a plan is a legitimate business decision. This privilege is inherent in the rights of employers to manage their businesses effectively.

shimybons wrote:I have also read about constructive dismissal and I feel na yun ang nangyari sa amin. I am just not sure if this is what happened but based on my understanding, ganun na nga po ang nangyayari. Please enlighten me.

Burden of proof ng constructive dismissal is on you. So far, your company is supported by the labor code and various rulings ng DOLE.

wow! Thanks for your explanation. Now I think I see where this is going. Thanks you again...

Please allow me to add my 2 centavo opinion. I believe that the employer is still required to prove that there is indeed a bona fide requirement to suspend the employment relationship and that operations are actually suspended.

I mention security guards because jurisprudence has allowed a special rule for them. The security agency did not close down, but there may be a situation where there are too many guards and not enough assignments. in this case, there was no actual suspension of operations of the security, but the Supreme Court allowed the application of Art. 286 pending the period between another assignment.

The difference I see with many BPOs is that they put employees on floating status, but there is continuous hiring of new applicants. To my mind, this negates the element of having a bona fide suspension of operations and a bona fide need for it. Moreover, instead of being simply reinstated without loss of seniority and benefits as per the labor code, the agent has to undergo an application process again to enter a new account.

When I was still advising a BPO, I recommended that they do not make use of the entire period of Art. 286 because so many agents were willing to file cases at NLRC because of the incredible hardship of being jobless for 6 months, and we were ending up paying them separation pay to settle. Instead, we applied a 1 month bench period to find them a new spot, and if none could be found, then they were paid separation pay. Cases decreased to zero.

attyILL, thanks for you additional thought. That's what's happening to us right now. And some of us were not given a job despite having us interviewed on a job fair within our office. I don't know why but I am sure there is no need for us to undergo interview since they will be giving us work anyway and the interviews come just for formalization. It just didn't make sense.

for now, i recommend you document these matters such as continuous hiring and availability of positions (especially internal advertisements) so that if you do file a case later on, you will have proof.

Thank you again. Will sure do!

+100 to attyLLL
Based on Article 286, the suspension must be "Bona Fide" or “in good faith” such as may occur in equipment check or repair, stock inventory or lack of raw materials. Pulling out of the account is not considered a Bona Fide suspension of operation; it is already a termination of the operation. Why do they need to be interviewed and transferred to another account if the operation is only suspended? Do you think they will still acknowledge the contract signed 7 years ago with the account that is to be pulled out? No. It will already be a new contract.

Since there is no Bona Fide suspension of operation and shimybons has already been removed the position even if the account he’s been working for is still operating till July, this could only mean Redundancy. In redundancy, the existing manpower of the establishment is in excess of what is necessary to run its operation in an economical and efficient manner. Separation pay is required to be paid to the employee when there is termination of employment by the employer for an authorized cause. In this case, redundancy which is one month’s pay for every year of service or one month pay, whichever is higher (art. 283, Labor Code).

Also, the employer has the burden of proving that the dismissal is legal. NOT the employee.

This is a good post, follow up attorney, the moment that we were put on floating status, can we decline the offer of being transferred to another program? if yes, can we get separation pay for that?

in my opinion, no. whether an employee should be declared redundant is a purely management prerogative. but you can challenge their decision to invoke art. 286