1) The probationary employment framework in the Philippines

1.1 What “probationary employment” means

Probationary employment is a trial period where an employer assesses whether a worker meets the reasonable standards for regularization. A probationary employee is still an employee with labor rights (wages, hours, benefits required by law, OSH protections, statutory leaves if qualified, etc.). Probation is not “casual” status by default; it is a specific arrangement with specific rules.

1.2 Maximum length and extensions

As a general rule, probationary employment may not exceed six (6) months. Extensions are risky and usually disallowed unless justified by recognized exceptions (e.g., some apprenticeship/learnership arrangements, or where the nature of the work and applicable rules legitimately provide otherwise). In ordinary roles, “we’ll extend your probation” is often treated as legally ineffective—after six months, the employee may be deemed regular if they continue working.

1.3 The critical requirement: standards must be made known at engagement

A foundational rule: the standards for regularization must be communicated to the employee at the time of engagement (e.g., job offer, contract, onboarding documents). If the employer fails to do this, the employee may be treated as regular from day one.

What counts as “standards”?

Measurable performance metrics (quality, productivity, KPIs)
Attendance/tardiness standards
Behavioral/competency standards tied to job duties
Training/probation milestones and required certifications

Vague standards (“must be efficient,” “must fit culture”) are weak unless supported by concrete, job-related criteria and documentation.

1.4 Termination during probation: allowed grounds

A probationary employee may be terminated for:

Failure to meet the reasonable standards made known at engagement; or
Any just cause (e.g., serious misconduct, fraud, willful disobedience, gross negligence, breach of trust/loss of confidence where applicable, commission of a crime related to work); or
Any authorized cause (e.g., redundancy, retrenchment, closure—noting that authorized causes have procedural steps and separation pay rules).

Even during probation, termination is not “at will.” The employer must still observe substantive and procedural due process.

2) Disclosure duties: what applicants and probationary employees must (and need not) reveal

There is no single statute that lists a universal “duty to disclose everything” to an employer. Disclosure obligations typically come from:

Contractual commitments (application forms, employment contracts, handbooks)
Role-related duties (fiduciary positions, regulated professions, roles handling funds/data)
General principles against fraud/misrepresentation

The practical rule is: You must not lie, and you must not conceal material facts when you have a duty to disclose them (because the employer reasonably relies on them for hiring or job-risk decisions).

2.1 Common areas of disclosure

(A) Identity and credentials

Correct name, address, government IDs
Educational attainment, licenses, certifications
Work experience and positions held

Misstating credentials is one of the most common “termination for cause” triggers (often treated as fraud or dishonesty).

(B) Past employment and separation history Employers often ask if you resigned, were terminated, or have pending administrative cases with prior employers. If asked, answer truthfully. If not asked, you generally don’t have to volunteer every detail—unless non-disclosure becomes fraudulent (e.g., you actively conceal a fact that makes your claims misleading).

(C) Criminal cases, convictions, or pending charges This is sensitive. Employers may ask; you should not lie if you answer. But whether you must volunteer information unprompted depends on role and policy:

For positions involving security-sensitive functions (cash handling, fiduciary roles, childcare, security work, critical infrastructure), employers can justify more stringent disclosures.
For many roles, broad “any criminal history ever” questions can be disproportionate and raise data-privacy and fairness concerns.

(D) Conflicts of interest Typically material, especially where:

You have a side business that competes
You are related to vendors/clients or decision-makers
You hold another job that affects hours, confidentiality, or performance If policies require disclosure, comply. If not, it may still be material if it creates real conflict, misuse of confidential information, or scheduling deception.

(E) Health-related matters Health data is highly protected. In general:

You may be asked for fitness-to-work or job-related medical clearance where lawful.
You should not be compelled to disclose conditions unrelated to job requirements.
Special laws (discussed below) restrict specific health disclosures/testing.

2.2 “Materiality” is the core concept

A fact is “material” if a reasonable employer would consider it important in deciding to hire, place, assign, or entrust responsibilities—especially where it relates to:

Qualifications/licensing
Trust, integrity, or fiduciary responsibility
Safety and security
Legal compliance (regulated roles)

If a disclosure is material and you intentionally misrepresent it, termination risk increases substantially—even during probation.

2.3 Silence vs. misrepresentation

Silence (not volunteering information) is not always wrongdoing.
Misrepresentation includes half-truths, altered documents, fake certificates, “inflated” job titles, or omissions that make your statements misleading.

3) Background checks in the Philippines: what employers commonly do—and what’s lawful

3.1 Typical background-check components

Identity verification (IDs, address)
Employment verification (dates, position, reason for leaving—if prior employer will confirm)
Education verification
Reference checks
Online presence checks (public profiles)
NBI clearance and other clearances, where relevant
Credit checks (less common; high justification needed)
Medical pre-employment exam (role-dependent)

3.2 The legal anchor: data privacy and fair processing

Background checks are primarily governed by privacy and fairness principles under the Data Privacy Act and related issuances enforced by the National Privacy Commission.

Key principles that affect background checks:

Transparency: applicants should know what data is collected and why
Legitimate purpose: the check must be job-related and lawful
Proportionality: collect only what is necessary, not “everything”
Security: protect stored data, limit access, set retention limits

Criminal history information is generally treated as sensitive personal information, demanding higher care and stronger legal basis.

3.3 Consent: important, but not the whole story

Employers frequently rely on signed consent forms. However:

Consent should be informed, specific, and freely given.
In employment, “freely given” can be complicated because the applicant may feel compelled—so best practice is to rely not only on consent but also on a clear, job-related lawful basis and strong transparency.

3.4 Third-party background check providers

If a company uses an outside investigator or screening firm:

There should be a data processing agreement
The provider should only collect what’s authorized
Results should be handled confidentially and retained only as long as needed

3.5 Reference checks and defamation risk

Employers contacting prior employers or references should:

Stick to job-relevant information
Avoid speculative accusations
Document communications carefully Prior employers giving references should also be cautious: false statements can trigger liability; overly broad disclosures can raise privacy concerns.

4) Clearances and criminal history: how they interact with hiring and probation

4.1 National Bureau of Investigation clearance: common but not automatically disqualifying

Many employers request an NBI clearance. Practical realities:

“Hit” status may require verification and does not always mean conviction.
Employers should avoid knee-jerk decisions without context (identity mismatches happen; cases may be dismissed).

4.2 Pending cases vs. convictions

A pending case is not the same as guilt. In a fair process:

Employers should consider relevance to the job, recency, and disposition status.
Automatic disqualification for any pending matter can be disproportionate unless the role is highly sensitive.

4.3 When criminal history becomes a legitimate job issue

Criminal history is more likely to be job-relevant when:

The offense relates to honesty (e.g., fraud/theft) for finance/cash roles
The role involves vulnerable populations (children, patients)
The job requires high security clearance
The role is regulated with disqualification rules

4.4 Workplace misconduct vs. off-duty conduct

Not all off-duty conduct justifies termination. A common legal lens is whether the conduct:

Is work-related or impacts trust inherent in the role
Damages the employer’s legitimate business interests
Creates a real safety/security risk
Violates a lawful and reasonable company policy

5) Company policies during probation: what matters most

5.1 Probation policy essentials

A legally safer probation program includes:

Written probation period and position
Written performance standards and evaluation schedule
Documented coaching/feedback
Clear criteria for regularization or termination

5.2 Disclosure and honesty policies

If a company wants to enforce disclosure duties, it should have:

A clear rule on accuracy of application information
A definition of “falsification/misrepresentation”
A process for correcting mistakes (e.g., amend application details)
A proportional discipline matrix (not all errors merit dismissal)

5.3 Background check policy essentials

A compliant policy usually covers:

What checks may be conducted (and for which roles)
What data may be collected and for what purpose
How long results are retained
Who can access results (typically HR/security only)
How adverse findings are evaluated (contextual review, not automatic rejection)
Applicant’s opportunity to explain discrepancies

5.4 Codes of conduct that commonly affect probationers

Attendance and punctuality rules
Confidentiality and data protection
Anti-harassment and respectful workplace rules
Conflict of interest / gifts and entertainment
Use of company assets and IT systems
Social media guidelines (as applied to legitimate business interests)

Policies must still be reasonable, lawful, and consistently applied.

6) Misrepresentation and nondisclosure: consequences and legal treatment

6.1 Grounds employers commonly invoke

When an employee lies or falsifies records, employers may classify it as:

Fraud or willful breach of trust
Serious misconduct/dishonesty
Loss of confidence (for positions of trust)

Even if discovered during probation, misrepresentation can be a just cause basis for termination, separate from performance standards.

6.2 Material vs. immaterial inaccuracies

Not every discrepancy is terminable:

Minor date errors may warrant correction, not dismissal, especially if not intentional.
Fabricated degrees, fake licenses, or forged clearances are typically treated as severe.

6.3 Procedural due process still applies

Even for probationary employees, employers should observe:

Notice of the charge(s) and supporting facts
Opportunity to explain (written explanation and/or hearing conference)
Notice of decision

For failure-to-meet-standards termination, documentation of evaluations and communicated standards is critical.

7) Special Philippine laws that shape what can be asked or required

7.1 Anti-discrimination measures (selected)

Several laws and policies constrain how background information can be used:

Anti-age discrimination in employment
Disability rights (reasonable accommodation, non-discrimination)
Sex/gender-based protections and workplace harassment rules

Using background checks to screen out protected groups—especially without job-related justification—creates legal risk.

7.2 HIV-specific protection

Philippine law generally prohibits requiring HIV testing as a condition for employment and strongly protects confidentiality of HIV status. Employers should avoid policies that effectively compel disclosure of HIV status.

7.3 Data protection duties inside the workplace

Even after hiring, employers should limit access to sensitive information. For example:

Managers usually don’t need to see raw background check reports
Disciplinary decisions should cite job-related grounds, not unnecessary personal details

8) Practical guidance

8.1 For employees on probation

Treat all application and onboarding forms as legal documents: don’t guess—verify dates, titles, credentials.
If you discover an honest mistake (wrong date, incomplete role description), correct it in writing promptly.
If asked about sensitive matters (cases, health), request clarity on purpose and scope; provide only what’s necessary and truthful.
Keep copies of your job offer, probation standards, evaluation forms, and coaching notes.

8.2 For employers and HR

Put regularization standards in the contract or a signed onboarding document at day one.
Use tiered background checks: more intrusive checks only for roles that justify them.
For adverse findings, apply a documented “relevance test” (job-relatedness, recency, severity, rehabilitation, and accuracy verification).
Avoid blanket policies like “any pending case = no hire” unless a specific role truly requires it.
Train staff on privacy: background results should be handled on a need-to-know basis only.
When terminating a probationer, choose the correct ground (standards vs. just cause vs. authorized cause) and document it properly to reduce disputes before the National Labor Relations Commission and review by the Supreme Court of the Philippines.

9) Frequently asked questions

Q1: Can my employer fire me anytime because I’m probationary? No. Probationary employees can be terminated only for legally recognized grounds, and the employer must observe due process.

Q2: If I didn’t disclose a past termination, can I be dismissed? If you were asked and you lied, or if your omission amounted to a material misrepresentation, dismissal risk is high. If it was not asked and it’s not material to your role, the legal risk is more context-dependent.

Q3: Can an employer require an NBI clearance? Often yes, especially where job-related. But handling and evaluation of the information should follow privacy and fairness principles; a “hit” should be verified and assessed for relevance.

Q4: Can an employer check my social media? They can view publicly available content, but using it for decisions should still be job-related and non-discriminatory. Employers should avoid collecting excessive personal data and should document legitimate business reasons if it affects employment decisions.

Q5: If standards weren’t explained at hiring, what happens? The employee may be treated as regular from the start, and termination for “failure to meet standards” becomes much harder to justify.

10) Bottom line

In the Philippine setting Philippines, probation does not erase employee protections. The legality of disclosure demands and background checks turns on truthfulness, materiality, job-related necessity, privacy compliance, and documented, fair application of company policies. Misrepresentation can justify termination even during probation—but employers must still ground decisions on lawful causes and follow due process.