1. Floating Status (See also DO 215, s. 2020)

Floating Status

It is legal, such as in the case of security guards who have no assignment.

In security agency parlance, being placed “off duty” or on ‘floating” status means “waiting to be posted.”

Such a status should not exceed six months; if it does, it amounts to a dismissal. (Agro Commercial Services v. NLRC, G.R. No. 82823- 24, 1989)

Floating Status

• Labor Code When Employment not Deemed Terminated The bonafide suspension of the operation of a business or undertaking for a period not exceeding 6 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 (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. (Art. 301, LC) NOTE: The floating status of an Ee should last only for a legally prescribed period of time. When that floating status of an Ee lasts for more than 6 months, he may be considered to have been illegally dismissed from the service. Thus, he is entitled to the corresponding benefits for his separation. (Agro Commercial Security Services Agency, Inc. v. NLRC, G.R. Nos. 82823-24, 31 July 1989)
• DOLE D.O. 174-17 (Manpower Services) Effect of Termination of Employment Where the termination results from the expiration of Service Agreement, or from the completion of the phase of the job or work for which the employee is engaged, the latter may opt to wait for re-employment within three (3) months, or to resign and transfer to another contractor-employer. Failure of the contractor to provide new employment shall entitle the employee to separation benefits, as may be provided by law or the Service Agreement, whichever is higher, without prejudice to his/her entitlement to completion bonuses or other emoluments. Furthermore, the mere expiration of the Service Agreement shall not be deemed as a termination of employment of the contractor’s/subcontractor’s employee, who are the regular employees of the latter.
• DOLE D.O. No. 150-16 (Private Security Guards) Reserved Status If after a period of six (6) months, the Security Service Contractor/Private Security Agency cannot provide work or give an assignment to the reserved security guard, the latter can be separated from service and shall be entitled to separation pay. An assignment of the security guard and other private security personnel as a reliever for less than one-month shall not be considered as an interruption of the six (6) months period. (Sec. 10.3, DOLE D.O. No. 150-16)

NOTE: No security guard and other private security personnel can be placed in a workpool or on reserved status in any of the following situations:

• After expiration of a service agreement, if there are other principals where he/she can be assigned;
• As a measure to constructively dismiss the security guard; and
• As an act of retaliation for filing any complaint against the employer for violation of labor laws, among others.

Reinstatement of Ee on Floating Status

A bona fide suspension of business operations for not more than six months, or an Ee’s performance of military or civic duty, does not terminate employment (Art. 301 [286] of the LC).

The Er must reinstate the Ee to the former position without loss of seniority rights if the Ee indicates a desire to resume work within one month from the resumption of operations or relief from military or civic duty (Art. 301 [286] of the LC).

NOTE: An unjustified refusal to reinstate or deploy the Ee may constitute constructive dismissal; the appropriate monetary relief depends on the circumstances and the Ee’s entitlement (Arts. 300 [279] and 301 [286] of the LC; Seventh Fleet Security Services, Inc. v. Loque, G.R. No. 230005, 22 Jan. 2020).

Floating status cannot last beyond 6 months. Before the six-month floating-status period expires, the agency must deploy the security guard to a specific client; a general order to report to its office does not suffice.

Q: Loque was hired as a security guard by Seventh Fleet Security Services, Inc. Loque filed a complaint for constructive dismissal, and argued that since he was placed on floating status period of more than six months, he is deemed to have been constructively dismissed. To avoid liability for constructive dismissal, Seventh Fleet asserted that it had directed Loque "to report to Seventh Fleet's office for posting within 48 hours" through the letters dated 14 May 2014 and 28 May 2014. Seventh Fleet faulted Loque for not complying with its directive. On the other hand, Loque claimed that he went to Seventh Fleet's office to report for work on two occasions — on 19 May 2014 and 11 July 2014, but he was barred from entering the premises of Seventh Fleet. The Labor Arbiter found Seventh Fleet guilty of illegal constructive dismissal. The NLRC reversed the ruling of the LA and held that placing Loque on floating status was a valid exercise of Seventh Fleet's management prerogative. Is the NLRC correct?

A: NO. While there is no specific provision in the LC governing the "floating status" or temporary "off- detail" of Ees, the Court, applying Article 301 [286] of the LC by analogy, considers this situation as a form of temporary retrenchment or lay-off. Conformably with Art. 301, the placement of an Ee on "floating status" must not exceed six months. Otherwise, the Ee may be considered constructively dismissed. The burden of proving that there are no posts available to which the security guard can be assigned rests on the Er. However, the mere lapse of six months in "floating status" should not automatically result to constructive dismissal. The peculiar circumstances of the Ee's failure to assume another post must still be inquired upon.

In this case, Seventh Fleet was not able to show that Loque was not barred from entering its premises. The letters sent by Seventh Fleet to Loque are in the nature of general return to work orders. Such general return to work orders will not absolve Seventh Fleet since jurisprudence requires not only that the Ee be recalled to the agency's office, but that the Ee be deployed to a specific client before the lapse of six months. Considering that Loque was placed on floating status for more than six months without being deployed to a specific assignment, and that the letters sent by Seventh Fleet are bereft of any reference to any specific client or indication that he would be assigned to a specific client, Loque is therefore deemed constructively dismissed. It follows then that Loque could not have abandoned his employment with Seventh Fleet, for abandonment is incompatible with constructive dismissal. (Seventh Fleet Security Services, Inc. v. Loque, G.R. No. 230005, 22 Jan. 2020)

Q: Juan was alleged to have made disrespectful remarks to a superior Ee in TelTel business process outsourcing company. He was placed in preventive suspension. A company investigation was conducted and found that Juan is not liable. However, he was moved to another position on another branch but eventually told to go back again to the original branch. But this time, he was told that the company still needed to find an account for him. He was told that he was considered as a “floater” and he will not get paid unless his floating status has been lifted. In his desire to keep his job and to receive his salary, Juan exhausted his earned vacation leaves. Juan alleged that he had been constructively dismissed. Is TelTel correct?

A: NO. The floating status principle does not find application in the instant case. While it may be argued that the nature of the call center business is such that it is subject to seasonal peaks and troughs because of client pullouts, changes in clients' requirements and demands, and a myriad other factors, still, the necessity to transfer Juan to another practice/account does not depend on TelTel's third party-client/contracts. When the controversy arose, TelTel had several clients in its roster to which it can easily assign Juan as Quality Analyst without any hindrance. (Telus International Philippines, Inc And Michael Sy v. Harvey De Guzman, G.R. No. 202676, December 4, 2019, as penned by J. Hernando)