Call center agents are one of the higher paid workers in the Philippines today. Unfortunately, this enticement of higher pay has probably led some call center employers into thinking they could trifle with their employees’ rights and welfare.
With the employment crisis, there’s the practice of requiring employees to work on double shifts, say from 1 a.m. to 10 a.m. and then 8 p.m. the same day to 5 a.m. the next day. Some employees render overtime work without corresponding adjustments made in their salary to compensate for the extra working hours.
The following questions arise:
1. Is the second shift considered overtime work?
2. If yes, can the call center require employees to work in the second shift?
On the first question, yes the second shift should be considered overtime work and thus employees working in double shifts are entitled to corresponding overtime pay and night-shift differential. Normal hours of work shall not exceed 8 hours a day, says the law. Hours worked however do not include meal time if the employee is completely freed from duties during her meal period, which shall not be less than 1 hour. If the work performed exceeds 8 hours a day, the employee is entitled to overtime pay equal to her regular salary (compute the hourly rate) plus at least 25% thereof. When the employee is required or allowed to work between 10pm and 6am, she is entitled to a night-shift differential of not less than 10% of her regular wage for each hour of work performed within that time.
The law says a “day” is understood to be the 24-hour period which starts from the time the employee regularly starts to work. It is not necessarily the ordinary calendar day (like Monday, Tuesday, etc.). Thus, in the call center’s case, if the employee starts working from 1 a.m. to 10 a.m., the work day of such employee is from 1 a.m. to 1 a.m. the following day. In other words, the period from 1 a.m. to 10 a.m. is the regular working hours or shift of the employee while the period from 1 a.m. to 1 a.m. the following day is her work day. Any work in excess of 8 hours within that 24 hour period is considered as overtime work regardless of whether the work covers two calendar days (e.g. Monday-Tuesday).
So where the employee is required to work from 1 a.m. to 10 a.m. and come back 8 p.m. on the same day for the 8 p.m. to 5 a.m. second shift, the hours between 8 p.m. to 1 a.m. the following day is considered as overtime work for 5 hours (or 4 hours, subtracting the 1-hour meal period). Aside from overtime pay, the employee should also be paid a night-shift differential for work actually rendered between 10 p.m. to 5 a.m..
Now, the call center might claim that the employee’s overtime pay was already integrated in her basic salary which is way above the minimum wage. May the employer and employee agree that the latter’s regular salary already includes the overtime pay, such that when the employee actually works overtime she cannot claim overtime pay? No, unless there is an express agreement to that effect. Thus, first there must be a clear written agreement knowingly and freely entered into by the employee, and secondly, the mathematical result shows that the agreed legal wage rate and the overtime pay, computed separately, are equal to or higher than the separate amounts legally due. (Damasco vs. NLRC, G.R. 115755, as cited by Azucena).
On the second question: If the second shift is considered overtime work, can the call center require employees to work in the second shift? No, an employer cannot legally require his employee to render overtime work except in certain urgent cases stated in the law. In any case, the employee is always entitled to overtime pay if work exceeds 8 hours in a 24-hour period.
Notably, an employee may belatedly demand for unpaid extra compensation. Anytime she can file a claim for unpaid salary, benefits or overtime compensation for work rendered months or years back. The law recognizes that fear of losing one’s job is sometimes a very strong factor that gags the employee from demanding payment for such extra services and it may take her months or years before she could be made to present a claim against her employer. (Luzon Stevedoring vs. Luzon Marine Dept. Union, 101 Phil. 257, as cited by Azucena)
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