Coffee and lunch breaks

By Leonard Vinz O. Ignacio, 30 July 2009

Labor concerns in the BPO industry Part 3
Read Part 1 | Part 2

"I never drink coffee at lunch. I find, it keeps me awake in the afternoon." ~ Ronald Reagan, 40th President of the United States

Call centers and other segments of the business process outsourcing (BPO) sector usually cater to the needs of worldwide clients operating in various time zones.

Hence, call center agents sleep mostly during the day and are awake most of the night till the next morning. They usually start their day (or night) by logging on to their computers and waiting for customers to call in with their queries.

Because of the peculiarity of the nature and exigencies of this special type of business, it becomes necessary for call centers and other BPO firms to keep their seats manned in order to service the continuous inflow of customer queries, thus, a need to devise and implement shorter breaks and meal periods.

Article 85 of the Labor Code mandates a 60-minute or one hour timeoff for meals, which is considered non-compensable. Section 7, Rule I, Book III of the Omnibus Rules Implementing the Labor Code reiterated the same rule, but cited exceptional cases where employees may be given a meal periods of not less than 20 minutes which is credited as compensable hours worked, as follows:

• Where the work is non-manual work in nature or does not involve strenuous physical exertion;
• Where the establishment regularly operates not less than sixteen hours a day;
• In cases of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer will otherwise suffer; and
• Where the work is necessary to prevent serious loss of perishable goods."

Thus, the general rule is that, employees must be given at least a one-hour meal period a day which will be considered non-compensable.

However, in those exceptional cases where shorter meal periods of not less than 20 minutes are allowed, such shorter meal periods will be counted as compensable working hours of the employees.

It will be noted that shortened meal periods are compensable, but not the one-hour regular meal period which is non-compensable. Why is the treatment different?

The rational behind this rule on non-compensability of the one-hour meal period has been expressed in various commentaries and rulings issued by the Department of Labor and Employment (DoLE).

According to DoLE, the one-hour meal period refers to a bona fide meal period where the employee is totally relieved from duty. An employee is relieved from duty when the employee’s time is not spent predominantly for the benefit of the employer. In other words, if during the meal period, the employee’s time and attention are primarily occupied by a private or personal pursuit, such as relaxing or eating, then the employee is relieved from duty.

On the other hand, if during the meal period the employee’s time or attention is taken up principally by work responsibilities that prevent his/her from comfortably and adequately passing the mealtime, then the employee has not been relieved from duty.

Conversely, in the case of the shorter meal periods, the same are considered compensable since it will seem that in those exceptional cases where it is allowed, the employees are expected to be on call and are therefore prevented from comfortably and leisurely spending their break time for their personal benefit.

Although the wordings of Section 7 on the compensability rule of shorter meal periods is explicit, the DoLE in certain cases, qualified the application of this rule and have allowed the grant of non-compensable shorter meal periods in cases where the employees are totally relieved from their duties during such period.

The question now is how will the above rules apply to call centers and other BPO firms? Do these firms fall within the above exceptions and, therefore, may be allowed to give their employees shorter meal periods? And can these shorter meal periods be considered non-compensable?

I believe that the nature and exigencies of the global outsourcing business will qualify BPOs and call centers to avail of the exemption from the general rule provided under Article 85 of the Labor Code.

Thus, since call centers and other BPO firms operate on a 24-hour/seven-day basis and keep numerous work shifts per day, they may be allowed to provide their employees shorter meal periods of not less than 20 minutes.

I also believe that the shorter meal periods may be deemed non-compensable, provided the employees are not on call and are allowed to adequately spend such short meal periods for their own personal comfort and benefit and are not prevented from doing so.

However, if the exigencies of the work will require the employees to stay at their post all the time ,such that they may even have to take their meals while working, such short meal periods must be compensable.

There is no clear jurisprudence yet on this issue in the Philippines.

However, various US jurisprudence interpreting the US Labor Code, after which our Labor Code has been substantially patterned, have been issued allowing the grant of non-compensable short meal periods where the employees are totally relieved from their duties.

In my view, the grant of compensable shorter meal periods, which is not mandated in the Labor Code but only in the IRR, should only be a general rule and should not be applied uniformly to all businesses. Provided the non-compensable nature of the short meal period can be properly justified, employers should be given this option.

However, call centers and other BPO firms adopting this policy must exercise prudence in its implementation. Basically, the policy of non-compensation shorter meal periods must be institutionalized in all employment contracts and must be properly explained to the employee before he/she signs the contract. Moreover, the policy must also be clearly spelled out in the company’s manual of policies to formalize it as a valid management prerogative. Lastly, in the absence of Philippine jurisprudence on this matter, it may be wise to secure a prior ruling from the DoLE before this policy is implemented to avoid unnecessary labor issues in the future.