The following are the most frequently asked questions and their answers.
1) What is the difference between night shift differential pay and night shift pay?
There is no difference between night shift differential pay and night shift pay. Night shift differential pay is the legal term as provided in the Labor Code, while night shift pay is the business/corporate term.
2) Are all employees entitled to night shift differential pay?
No, only covered employees are entitled to night shift differential pay. On the other hand, there are employees who are excluded from the coverage of the benefit. For instance, certain/specific Government employees, kasambahay or domestic workers, managerial employees are not entitled to shift differential pay.
For a complete list, see: Night shift differential pay
3) May the night shift pay be increased?
For the private sector, the night shift pay may be increased from 10% to whatever may be stipulated in an employment contract, company policy, collective bargaining agreement (CBA), or other employment agreements.
For the government service, the night shift pay may only be increased if there is a law providing for such. If there is none, the employer and the employees cannot stipulate to a night shift pay that is higher than the current 20% rate. Any agreement to that effect shall be considered void for being contrary to law.
4) May the employer subsequently withdraw or decrease the previous increase of night shift pay?
No, the employer cannot subsequently withdraw or decrease the previous increase of night shift pay as this will violate the principle on non-diminution of benefits. Once the employer gives a benefit or increase the one provided for by law, it cannot anymore be withdrawn or decreased.
5) May the employer provide for night shift pay lower than that provided for by law?
No, the employer may not provide for night shift pay which is lower than that provided for by law as it will be contrary to law.
What the employer may do is to provide higher than that provided for by law as any benefit more favorable to an employee is generally valid and binding, with the exception of the Government.
6) What if an employee is unable to complete an hour during the night shift?
The employee shall be entitled to pro rata of the night shift differential pay. Otherwise stated, so long as a covered employee render work during the night shift duration (6:00 pm to 6:00 am the following day for those in the Government Service, and 10:00 pm to 6:00 am the following day for those in the private sector), the employee shall be entitled to night shift differential pay. There is no requirement that the employee should be able to complete an hour of work. If the employee is unable to do a full hour of work, then the employee will only be entitled to pro rata.
This follows the principle of full protection to labor under the 1987 Constitution.
7) Is an employee who worked from 2:00 am to 5:00 am entitled to night shift differential pay?
Yes, an employee who worked from 2:00 am to 5:00 am is entitled to night shift differential pay. What is important to note is that the work rendered by a covered employee is within the window period for the applicable night shift.
8) When should night shift differential pay be paid to the employee?
The night shift differential pay should be paid to the employee on the next pay cycle. The additional pay should be included in the employee’s compensation.
9) Is an employee who failed to follow company policy or procedure for night shift work entitled to night shift differential pay?
Yes, so long as the employee is able to prove via substantial evidence (e.g. CCTV, testimony of coworkers, log-time, etc.) the work rendered during a night shift work, then night shift differential pay is due. Notwithstanding, the employee may be held liable for violating the company policy or procedure for night shift pay. However, the penalty should not result in the forfeiture or non-payment of the employee’s night shift differential pay as it is a different matter.
To be clear, an employee who completed the conditions or requirements for entitlement of night shift differential pay as duly proven by substantial evidence, and even if the same is not in compliance with company policy or procedure, the employee nonetheless would be entitled to night shift differential pay. The reason is that the employee did in fact render such work, only that the company policy or procedure was not complied. Thus, the non-compliance is treated separately and may be the basis for administrative investigation and/or penalty against the employee.
10) What is the liability of an employer who refuses to pay the night shift differential pay?
For private sector employers, they may be liable for monetary claims which an employee may pursue via a SEnA request for assistance or a formal labor complaint.
For those in the Government service, the responsible offer may be held liable for violations under the office/agency’s policies or, in default, under civil services laws, rules, in particular the Revised Rules on Administrative Cases (RRACS).
⦁ Is equal protection violated for night shift pay between public and private employees?
⦁ Cited Labor Law Jurisprudence (a.k.a. Supreme Court Decisions)