Placing employee on ‘floating status’ not unlawful per se

Dear PAO,
My sister works as a security guard. She was assigned to a private college in Manila. She was on that assignment for about 15 months already when the school asked her to return to her agency. It turned out that she was assessed to have a poor performance, for which reason the school asked for another guard to replace her.

My sister reported back to her agency but it has been three months now and she has been on floating status. She has not been given another assignment. Is this even valid considering that she is not receiving any salary? Please give us advice on this matter.
Dek

Dear Dek,
The term “floating status” suggests a situation where an employee is temporarily placed out of actual work. Although not particularly mentioned under our Labor Code, it is not per se unlawful or illegal. In fact, the code recognizes instances where an employer is allowed to place an employee on bona-fide suspension, but without severing their employer-employee relationship. As stated under Article 286, Id.:

“The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (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.”

Furthermore, the Supreme Court has recognized, in a long line of cases, the validity of placing employees, security guards in particular, on floating status. In one case, the High Court ruled:

“x x x While there is no specific provision in the Labor Code which governs the ‘floating status’ or temporary ‘off-detail’ of security guards employed by private security agencies, this situation was considered by this court in several cases as a form of temporary retrenchment or lay-off. The concept has been defined as that period of time when security guards are in between assignments or when they are made to wait after being relieved from a previous post until they are transferred to a new one. As pointed out by the CA, it takes place when the security agency’s clients decide not to renew their contracts with the agency, resulting in a situation where the available posts under its existing contracts are less than the number of guards in its roster. It also happens in instances where contracts for security services stipulate that the client may request the agency for the replacement of the guards assigned to it, even for want of cause, such that the replaced security guard may be placed on temporary ‘off-detail’ if there are no available posts under the agency’s existing contracts.

As the circumstance is generally outside the control of the security agency or the employer, the court has ruled that when a security guard is placed on a ‘floating status’” he or she does not receive any salary or financial benefit provided by law. x x x” (Exocet Security and Allied Services Corporation vs. Serrano, G. R. No. 198538, September 29, 2014)

In the situation that you have presented, we cannot immediately conclude that your sister’s employer has committed wrong against her by simply placing her on floating status. First, if the contract between her agency and the school allowed the latter to seek a substitute or replacement, then her recall is in order and her employer is bound to place another guard in her post. Second, as mentioned by the court, those on floating status do not receive salary during the period. Finally, the employer may not be forced to deploy her if there is really no other available assignment.

It should be stressed, however, that the floating status must not go beyond the six (6)-month period allowed by law. If her employer fails to assign her after the expiration of the six (6)-month period, she will be deemed to have been constructively dismissed. Consequently, she will be entitled to receive separation pay pursuant to Section 6.5 of the Department of Labor and Employment Department Order No. 14, Series of 2001.

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 dearpao@manilatimes.net