If a person leaves your team, are you obligated to help them out afterwards? What do you owe them? A common question that pops up is about the certificate of employment, or a COE being requested by former employees.
Now this question from our website reader captures it perfectly. So let me read it. "Attorney, I went AWOL from my former employer. Now I'm applying with a new company and they need a certificate of employment from me. Can I still ask for a certificate of employment even if I left under bad terms?" This usually happens (Awkward!).
If you want to learn what the rules are regarding certificate of employment, then stick around as we share three tips for you. Stay tuned.
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Welcome to Legal Guide Philippines, where we simplify the law to help you make better choices. And in this video, we will be sharing three tips when it comes to the COE or certificate of employment. First step is, what is a certificate of employment? Let's get that sorted out, Attorney Ramon.
Tip 1: Think of it as a receipt
So one way of thinking of a certificate of employment is it's a receipt.
A receipt? It's a receipt of a transaction that's occurred.
So the transaction is an employee worked for a certain employer. So keep that in mind.
So the question that the certificate of employment is answering is, "Did you work for this employer? Yes or no?"
Yes. If the answer is yes, then yes, that shouldn't be reflected in the certificate of employment. That simple. Now, if you would notice, the receipt is not dependent on how you thought the transaction went. So for instance, if you went to a restaurant Atty Ramon, and you ordered food, what's your favorite food?
Right now, steak.
So does it work this way: if you're happy with the steak, you get the receipt?
Either way I get a receipt, because I- Even if you're unhappy with the steak? Yes, absolutely. Why? Because the receipt is not dependent on the experience, correct?
Yes. It's dependent on whether or not I paid for it. Or that if it happened.
So same thing with your employees. The question is: did that person work for this employer? If the answer is yes, then they are entitled to that certificate of employment. I hope that clears the concept up for a lot of you guys.
Tip 2: Can they ask for it?
Now, as I said, it's not dependent on how they left. Which needs me to tip number two, which is, can employees ask for it? What do you think, Atty. Ramon?
Well, they can definitely ask for it. The question- What's the legal basis?
Well, I mean, there's nothing illegal about requesting it.
No. But actually, there is. Under the labor code, employees are entitled to ask for a certificate of employment. However, there's a slight issue.
Okay, what's the issue?
Under the labor code, it wasn't specified how it was supposed to be given. So there was no time limit.
So what used to happen was, an employee, especially if the employee left under bad terms, employee requests for a certificate of employment, the employer goes, "Okay, that's noted." Six months down the line, there still isn't a certificate of employment being released.
Or I think sometimes, Attorney, I've heard of situations where they hold the certificate of employment hostage, because the employee still has, I don't know, debts to the company.
Or they haven't returned certain things. Does that happen? Yes, basically they weaponize the COE.
Well, the rules weren't that clear. It was a gray area, admittedly during that time. However, that has since been remedied. You know when?
When? With the Issuance of Labor Advisory number six, series of 2020. Now- 2020? That's very recent. It is.
So now the Department of Labor and Employment has clarified, upon request of the certificate of employment, the employer now has, how many days? What do you think?
One month? No. Shorter than that. What?
Three days. Three days within which to release the certificate of employment. Now, this makes sense if you tailor it with the first step.
Which is? Because in the first step, we clarified what the nature of the COE is. It's just a receipt. So basically you're just certifying to the fact that the employee worked, or is working for you. That's it. No other commentary or opinions needed.
Regardless of whether they left under bad terms or good terms. Is that correct? Because even if you left, the fact remains that you still worked during this period. And that's what the certificate of employment is try to attest. Does that make sense?
Yeah. And good job for the Labor Department for issuing that advisory.
It clarified a lot of things for most managers and HR practitioners. Now, this leads me to the third tip.
Tip 3: Can the employees dictate what's on the certificate of employment
What's the third tip, Attorney? Well, it's a question, actually. Can the employees dictate what's on the certificate of employment?
I would say, no. Because sometimes employees say, "Ma'am, can you make my salary a little bit bigger?"
So that they're applying for a higher salary?
Sometimes they use it for the next application. Or sometimes if they're currently employed, they use it for credit card applications.
Oh, okay. Or for Visa applications. It can happen.
That's lying. That's bad. That's bad.
So going back, can the employees dictate what goes on the certificate of employment? Definitely not. Yes. Correct.
It's a certificate being issued by the management. Basically they're putting their name on it. So they have control of what goes on it. Okay? So another question there is, if ever the employee went under not so ideal terms... Supposing they had a fight, or AWOL.
Or went to a competitor, or whatever it is. Can you put derogatory remarks down in the certificate of employment suppose- "Always late." Or, "This person was fired. This person stole from us." Or whatever. "Always lying."
Okay. So right now I'm going to discuss three schools of thought regarding this. Regarding what to put into ... If you can put derogatory things in the certificate... or whatever it is.
Aside from the fact that the person worked for the employee. On one extreme, and this is pretty extreme, you put everything there. So, "Certificate of employment. Mr. Blah, blah, blah, worked for us from this year to this year as a position. Please note that this person was terminated for stealing, blah, blah, blah." Or, "Was terminated for sexual harassment." Anything embarrassing.
So that's one point of view. Can you do that? Well, the rules aren't really that clear about it. There's nothing prohibiting you from doing that explicitly. Especially if it's probably factual.
So theoretically, yes, you can. However, one problem is, it may be too... Harsh. That's a good word, harsh. Because let's face it, if a person presents that kind of certificate of employment to the next employer, what are the chances that they can get hired? Zero.
Zero, right? So it may be too harsh. And some HR professionals actually call it unprofessional to do that. So it's a matter of opinion. All I'm saying is there's nothing explicitly prohibiting you from doing that. Now, on the other end of the spectrum here is being too light about it.
Okay. What's light? Not saying anything. So you just say- So even if this was the worst employee ever. He stole it from you. Always late. Insubordinate. Sexually harasses everyone.
I think it would be unfair to the next employer if they have no warning that that's the kind of employee applying with them.
No, that's true. I wouldn't want that to happen to me. "I have no warning that this is the type of employee that I'm talking to." Yeah. And you don't really find out everything in an interview. That's at least my experience.
That's true. So on the other end of the spectrum, there are disadvantages there as well. So given those two, I'm going to propose a third way, which is the middle way. Sounds very zen. Yeah. Or a Goldilocks and the three bears.
So here's my suggestion. And this is what I recommend. In the certificate of employment, you can actually put a notation down in the bottom that says, "This is not a clearance. For more information you may contact the employer for details."
I like that. I like that. That's smart. So there's a middle ground.
It's a middle ground. You don't explicitly disqualify the former going from applying with other work. But at the same time, I think it's a soft warning for other companies to ask you if ever there's anything there that would be relevant for their hiring process, right?
I really like that. I'm going to use that when I advise clients. So please consider the three schools of thought, whatever fits with your situation, feel free to use it. Now as an added tip, this is pro level tips. Okay?
So if ever another company calls you for details, what I would ask for is a waiver. A waiver. For data privacy purposes.
So what it means, so I'm calling- I was the former employer. Okay, okay.
"Hello, former employer. This Mr. Johnathan is applying here. I saw that in the certificate, you said to call you if I have any more questions. So I have questions."
"Oh, hi. I'm very happy to accommodate you. So for us to be able to disclose certain matters, do you mind presenting me with a waiver so that I can be open with you, and discuss with you the details."
"Who is waiving? Me or the employee?"
"The employee for data privacy purposes."
"Okay. I will get that waiver and I will get back to you."
"Thank you very much." That's pro level right there.
Recap
Yeah, so I hope that is useful for you guys. So let's do a recap Atty. Ramon.
Yeah, sure. So we've talked about three things today. The first thing that we talked about is what exactly is a certificate of employment? In your analogy, it's a receipt of a transaction that happened. Or basically, it's a certification that somebody worked for somebody. Right. So simple as that.
Next is, can they request for it, the employees?
That's right. So that's the next thing that we talked about. Can they request for it? And the answer is, absolutely. And in fact, the Labor Department has clarified that when they do request for it, you need to issue it within three days. Correct?
Working days or calendar days? I would say calendar days.
Calendar days. Okay. Yeah, issue that. And the third is ... The third question is, can the employee dictate what's on the certificate of employment? And the answer is, no. It is a certificate issued by the employer. So whatever is on there is their control. Except that maybe they just shouldn't lie, right? And Attorney Erwin taught us the schools of thought, the extreme school of thought where you can say all their misdemeanors and stuff like that.
And the other school of thought where you just say, "Yes, they worked for me on this date to this date, with this position." And then you have the middle ground, which states at the bottom that, "This does not act as a clearance. For more information, please contact us at, blah, blah, blah." I love that. I love that middle ground, that Goldilocks solution.
Other Resources
I hope you guys learned a lot from that. And if you want to learn more about the COE and the rules around it, please go to info.legalguide.ph/discipline, to learn more about the disciplinary process as a whole.
Well, I guess that's it for this episode. If you liked this video, please give us a like, and subscribe. It lets us know that we are able to help you. And of course it encourages us to make more videos. If you learned something, please share it with your family and friends, so it helps them as well. If you want us to answer your question on our show, go to legalguide.ph to submit your question.
One last thing, even if an employee is no longer with you, I feel that there's value in treating them with respect. If they asked this thing such as a COE, consider making it easy for them. Not only are you legally required to do so, but you're planting the seeds of goodwill. You never know when the help you provide will come back to you. It may be through the employee. It may be through another channel. But one thing's for certain, by demonstrating that you treat former employees with respect, you're showing who you really are as a leader.
So wasn't that simple? Now go make better choices.
