Power to hire: Is this an absolute prerogative of the employer?

It is the right of an employer to hire its own employees. Labor laws do not, generally, authorize interference with the employer’s judgment in the conduct of its business. Thus, the determination of the qualifications and fitness of workers for hiring are exclusive prerogatives of management. The employer is free to determine, using his own discretion and business judgment, all elements of employment, "from hiring to firing," except in cases of unlawful discrimination, or those which may be provided for by law (NFL, et. al., v., NLRC, 202 SCRA 346 [1991]).

Now, are there existing laws which regulate, or restrict the exercise of the prerogative of an employer to hire its own employees?

Let us first check our Labor Code. Under this Code, we have Article 136 which prohibits an employer from requiring as a condition of employment that a woman employee shall not get married. Another provision is Article 139 which prohibits an employer from employing any person below 18 years old in an undertaking which is hazardous, or deleterious in nature. DOLE Department Order 04, Series of 1999, entitled "Hazardous Work/Activities Of Persons Below 18 Yrs" clearly defines and enumerates what are considered as hazardous workplaces. In other words, only persons 18 years of age or above can be employed in these hazardous, or deleterious workplaces. The code also has Article 248 which considers as unfair labor practice an act of the employer to require as a condition of employment that a person or employees shall not join a labor organization.

As regards the employment of children below 15 years of age, Republic Act No. 7610 otherwise known as "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act," as amended by Republic Act No. 7658, expressly defines the conditions under which a child below 15 years old may be employed. Thus, Sec. 12 thereof states that children below 15 years of age shall not be employed except: 1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer’s family are employed: Provided, however, That his employment neither endangers his life, safety, health and morals, nor impairs his normal development: Provided further, That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or 2) When a child’s employment or participation in public entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract is concluded by the child’s parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: and Provided, That the following requirements in all instances are strictly complied with:

(a) The employer shall ensure the protection, health, safety, morals and normal development of the child;

(b) The employer shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and

c) The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child.

In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements.

The same Act also provides in Sec. 14 thereof that no person shall employ child models (below 18 years old) in all commercials or advertisements, promoting alcoholic beverages, intoxicating drinks, tobacco and its by-products, and violence.

Aside from the above, there are other "labor-related" special laws. Thus, under Republic Act No. 7877, otherwise known as the "Anti-Sexual Harassment Act of 1995", an employer is prohibited from asking sexual favor as a condition in the hiring or in the employment of an individual. The employer is also prohibited from discriminating against a qualified disabled person by reason of his disability in regard to hiring. This is contained in Republic Act 7277 otherwise known as "Magna Carta for Disabled Persons." The more recent "labor-related" piece of legislation is Republic Act No. 8791 otherwise known as the "General Banking Laws of 2000." This law contains a provision which states that no bank shall employ casual or non-regular personnel, or too lengthy probationary personnel in the conduct of its business involving deposits.

It is therefore clear that while an employer has the prerogative to hire, such power is not absolute as there are existing laws which regulate, or restrict the exercise thereof.

(The author is the resident partner of the Cebu branch of the Abello Concepcion Regala & Cruz Law Offices (ACCRALAW). He is also a professor of Labor Law at the University of San Carlos College of Law, Cebu City. He can be contacted at tel. No. (032) 231-4223; fax No. (032) 231-3614 or e-mail: [email protected].)