If an employee demands a Certificate of Employment, are you required to provide it? Are they entitled to a Certificate of employment as a matter of right? In what instances? Let's tackle this question in today's article.
I got a question recently which goes:
Attorney, our employee is asking for a Certificate of Employment because he is planning to apply for a credit card. He says that it is his right to get a copy of this and it should be released right away. What's worse, he wants his friend who lives near the office to claim it from our office because the employee is out working in the field. Is this correct?
I like the question because it will allow us to discuss some finer points when it comes to the issuance of a Certificate of employment. Before we proceed, be sure that you've already read my previous article which discussed What a Certificate of Employment is so we're on the same page here.
Can an employee demand the issuance of a Certificate of Employment while working for you?
To answer this question, it would be best to see what the law says. The labor code states:
SECTION 10. Certification of employment. — A dismissed worker shall be entitled to receive, on request, a certificate from the employer specifying the dates of his engagement and termination of his employment and the type or types of work on which he is employed. (Omnibus Rules Implementing the Labor Code, [May 27, 1989])
This provision lays out the rules with regard to the right to a Certificate of Employment. I want to highlight an important word here: dismissed.
That tells me that upon dismissal (or by analogy, separation from employment), that's the time that the ability to ask for a Certificate of Employment becomes a right. Only when you are already dismissed.
Update: Labor Advisory 6-20
Before, the labor code was clear that the right pertained to “dismissed” employees. There is no right to the issuance of the Certificate of Employment for current employees. It is therefore discretionary on the part of the employer to release this or not.
However, this was changed when Labor Advisory 6-20 was issued by DOLE. The advisory states:
For purposes of this advisory, an employee whose employment is not yet terminated may also ask for a Certificate of Employment.
Now, even if the employee has not been dismissed, they are given the same right to request Certificates of employment just like dismissed employees.
Can you refuse to release a Certificate of Employment to a person other than your employee?
Now that we've tackled whether you should issue the Certificate of Employment, let's talk about the right person to release the document to.
You can refuse the release of employment documents to people other than your employees. In the case of the person who asked, there was no written authorization presented by the claimant. Therefore, in the interest of being prudent, the company has the right to ask for the proper paperwork to accommodate the request.
This will also protect you down the line. At least you have documentation on record giving you a legal ground for releasing the person's information. Remember that we now have laws in place to protect personal details and without the proper authority to release information, you may be held liable.
What is the safest way to do this?
If they want to go about this the right way, then the employee should submit a formal request for the Certificate of Employment and attach a written authorization letter in favor of the person who will be claiming this.
You want to be safer? Then you can require that the authorization be a Special Power of Attorney which should be notarized. This should help you sleep at night in case you are suspicious about why the employee is requesting the Certificate of Employment in the first place. The SPA will protect you from releasing it to a person other than the employee.
Recap
There you have it, folks. Hope I was able to explain the dynamics of Certificates of Employment better. Here's what we tackled:
- Is the issuance of a Certificate of Employment a right?
- When does it become a right?
- Who is entitled to claim it?
Now we've simplified this, go out there and make better choices!
