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 issueance 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 codes 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.
Therefore, the legal implication is that while you are still employed, there is no right to the issueance of the Certificate of Employment. It is therefore discretionary on the part of the employer to release this or not.
While the person is still employed, the issuance of the Certificate is covered by Managment Prerogative. Meaning, you can treat the "demand for the release of the Certificate of Employment" as a request and you are free to gauge whether the release is ok as far as the company is concerned. If not, then feel free to refuse.
An open letter to those involved
Having said this, I want to share some thoughts with the people in this story: the employer and the employee.
For the employer
I know that discretionary on your part, but I invite you to take a hard look at this request. If there's nothing "off" about it and the reason for the request seems legitimate, I advise that you go for it and release the Certificate of Employment.
If you feel that it would really help improve the quality of your employee's life, then I don't see why you should withold it. Visa applications for family vacations, bank loans, credit card applications, let's support them in their life outside work!
However, be on the look out whether the Certificate of Employment will be used for immoral or illegitimate purposes. Some employees use it to misrepresent the company or to make it appear that they are earning more than they are actually receiving. Be wary of these, and if the request doensn't feel right, stand your ground and respectfully refuse.
For the employee
Guys, I would advise you against being overzealous. Be careful how you ask for favors. There is a tendency to misapprehend laws sometimes, and you end up mixing the words supposed to be used. Be aware of the difference between a right and a privilege.
In this case, you are invoking a privilege, not a right. Simply put, the employer can refuse your request at any time because you are not entitled to it. Therefore, be careful in the way you phrase the request. Avoid strong and demanding words, and try to explain why you need the Certificate so that your chances of getting it increase.
At the end of the day, we are trying to ask your employer for a favor and I don't think using demanding words and strong-arming your way into it would do the job. Arm your request with the right tone.
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 sasked, there was no written authorization presented by the claimant. Therefore, in the interest of being prudent, the company has the right to ask for 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 for the Certificate of Employment in the first place. The SPA will protect you from releasing it to a person other than the employee.
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 Certiticate 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!