In 2019, as a response to a viral #UniversityDoBetter movement, a university announced that it would create the position of independent gender auditor answerable only to the university’s Board of Regents. The #UniversityDoBetter movement had arisen when a high school student started to post on social media complaints alleging sexual improprieties by some professors. Others soon followed with their own stories. Even traditional media outlets covered their stories. True to its promise, the university engaged one of its former professors with profound feminist views as gender auditor. The contract stipulated a performance review after five months of the gender auditor’s being engaged. The gender auditor’s performance was never the subject of any assessment by the Board of Regents. For about two years, the gender auditor submitted several candid findings on the behavior of some members of the university’s faculty and administration. In January 2021, the gender auditor submitted a report that the university’s management, including the Board of Regents, enabled and facilitated a hostile environment not only for women but also for those whose sexual orientation, gender identity, or gender expression were considered “nonconforming,” i.e., members of the lesbian, gay, bisexual, transgender, queer, intersex, asexual, and other gender and sexual minorities (LGBTQIA+) community. This report leaked and stirred a controversy, causing the university president to be dismissed from their post. In January 2022, after the president’s dismissal, the gender auditor received a letter from the Board of Regents, requiring the submission of a performance assessment to determine whether the gender auditor can be considered a regular employee. The gender auditor seeks your advice because you passed the #BestBarEver2020_21 and were recognized for exemplary performance. Is the gender auditor still a probationary employee? Explain briefly.
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No, the gender auditor is no longer a probationary employee. Under Article 296 of the Labor Code, probationary employment shall not exceed six (6) months from the date the employee started working. An employee who is
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Quick check
Under Article 296 of the Labor Code, what is the statutory maximum duration of a probationary employment period?
Article 296 of the Labor Code provides that probationary employment shall not exceed six months from the date the employee started working.
What is the legal consequence when an employee is allowed to work beyond the six-month probationary period without evaluation or notice of termination?
An employee allowed to work beyond the six-month probationary period automatically becomes a regular employee by operation of law.
When must the employer communicate the reasonable standards for regularization to a probationary employee?
The employer must make known the reasonable standards for regularization at the time of engagement.
Can an employer require a performance assessment to determine regularization two years after the employee was hired without prior evaluation?
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Why is the gender auditor in the university considered a regular employee rather than a probationary worker after rendering two years of service?
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1. Probationary Employment Duration
Under Article 296 of the Labor Code, probationary employment shall not exceed six months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The purpose of a probationary period is to allow the employer to observe the fitness and competence of the employee while affording the worker an opportunity to prove qualification for regular employment. An employer must make known the reasonable standards for regularization to the employee at the time of engagement; otherwise, the worker is deemed a regular employee from the very beginning.
2. Regularization by Operation of Law
An employee who is allowed to work after the lapse of the maximum six-month probationary period without being evaluated or served a notice of termination automatically becomes a regular employee by operation of law. Security of tenure attaches immediately upon attaining regular status. Consequently, management cannot belatedly conduct a performance assessment long after the expiration of the statutory six-month period to determine regular status, nor can it retroactively extend or reinstate probationary status once regular employment has already vested by law.
3. Security of Tenure
Under the Labor Code, an employer-employee relationship is determined using the four-fold test: selection and engagement, payment of wages, power of dismissal, and power of control over the worker's conduct. While independent contractors possess specialized skills and operate independent businesses free from principal control, an in-house auditor or officer answerable directly to corporate management who renders continuous personal service over an extended period is legally classified as an employee, entitled to security of tenure and statutory labor protections.