Maternity Leave Salary Differential: How to File a Complaint with DOLE (Philippines)

This article explains what the “salary differential” is under the 105-Day Expanded Maternity Leave Law, who must pay it, common employer defenses, how to compute it, deadlines, documents you need, and the exact steps to enforce your rights through DOLE’s SEnA and, if needed, the NLRC. Philippine context; private-sector focus.

1) Quick primer: what the “salary differential” is

Expanded Maternity Leave (EMLL). Female workers in the private sector are entitled to:
- 105 calendar days with full pay for live childbirth;
- 60 calendar days with full pay for miscarriage or emergency termination of pregnancy (ETP);
- An extra 15 calendar days with full pay if the mother is a solo parent;
- Optional extension of 30 calendar days without pay (upon written notice to employer).
Full pay means the worker receives her full salary during the leave period (basic pay plus the fixed/regular allowances and mandatory wage-related benefits normally received), less the cash maternity benefit paid by SSS.
SSS pays the maternity benefit (based on 100% of the average daily salary credit, capped by SSS). The employer must advance the full pay on regular paydays, then recover from SSS the reimbursable portion.
The salary differential is the gap between the worker’s full pay and the SSS maternity benefit. Employers must shoulder this differential, except if they qualify under narrow exemptions (see Section 4).

2) Who is covered

All female workers in the private sector, regardless of civil status, birth order, or employment status (probationary, regular, project, seasonal, casual, or fixed-term), so long as there is an employer–employee relationship.
Coverage includes domestic workers (kasambahay) and informal economy workers who are employees (with an employer).
For freelancers/self-employed without an employer, there is no salary differential to claim (only the SSS benefit).

3) When the differential becomes due

On your regular payroll schedule during the period of maternity leave (and not after SSS reimburses).
If the employer delays, short-pays, or refuses to pay the full pay (after netting the SSS portion), you can demand the salary differential and pursue remedies below.

4) Limited exemptions for employers (what they often claim—and how to assess)

An employer may be exempt from paying the differential only if it squarely falls under one of the recognized exemptions and can prove it with documents (often subject to DOLE verification). The commonly invoked categories are:

Distressed establishments (e.g., serious losses per audited financials for the relevant period);
Retail and service establishments with not more than 10 workers;
Registered Barangay Micro Business Enterprises (BMBE);
Those already providing a more favorable maternity pay (i.e., at least full salary for the entire paid leave period—so there is no “gap” left to cover).

Notes:

Exemptions are construed strictly. An employer must present proof (e.g., BMBE Certificate, audited FS, headcount records).
Even if exempt from the differential, the employer still must advance and remit the SSS maternity benefit properly.
Government employees follow separate civil service rules; this guide is for private sector.

5) How to compute the salary differential (practical)

Step A — Determine “full pay”:

Start with basic daily rate × entitled leave days, then add fixed/regular allowances (e.g., COLA, guaranteed transportation or meal allowance if ordinarily paid regardless of work performed).
Exclude purely contingent/variable pays (e.g., overtime premium, night differential not regularly guaranteed, commissions tied to sales unless contractually fixed).

Step B — Determine SSS maternity benefit:

SSS computes 100% of the Average Daily Salary Credit (ADSC) times the number of leave days (105/60/120), subject to SSS caps. This is the reimbursable portion.

Step C — Salary Differential = Full Pay – SSS Maternity Benefit

Worked example (illustrative only):

Monthly basic salary: ₱25,000; fixed allowance: ₱2,000; total monthly fixed: ₱27,000.
Daily equivalent (for illustration using 30 days): ₱27,000 ÷ 30 = ₱900/day.
Full pay (105 days): 105 × ₱900 = ₱94,500.
Assume SSS pays ₱70,000 (based on ADSC and caps).
Salary Differential: ₱94,500 − ₱70,000 = ₱24,500 (chargeable to employer).

Tax and contributions (typical treatment):

SSS maternity benefit is not subject to income tax/withholding.
The salary differential is usually treated as taxable compensation (since it is “salary”), with normal payroll deductions (tax, PhilHealth, Pag-IBIG, SSS employee share if any, subject to current rules). Employers must still remit contributions for the paid leave months.

6) Deadlines (prescriptive periods) you should know

Money claims for unpaid salary differential generally prescribe in three (3) years from the date they became due (i.e., the payroll dates covering your maternity leave).
Do not wait. File as soon as you confirm underpayment or non-payment.

7) Evidence you should gather before filing

Collect copies (or clear photos/scans) of:

Company ID and any proof of employment (contract/appointment, payslips, timekeeping or HRIS printouts).
Proof of pregnancy and delivery/ETP (medical certificate, ultrasound, child’s birth certificate if available; or medical record for miscarriage/ETP).
SSS Maternity Notifications/claim forms and any SSS benefit advice or receipt.
Payroll proofs: payslips during the leave months; bank credits; payroll summaries; any email from HR; booklet or policy on maternity leave.
Demand letter/email you sent asking the employer to pay the differential (keep proof of sending).
Any employer claim of exemption (e.g., BMBE certificate, “distressed” documents) if they showed you copies.

8) Step-by-step: Filing a complaint with DOLE (SEnA first)

The Single Entry Approach (SEnA) is mandatory before a formal case. It is a speedy, non-litigious conciliation–mediation process run by DOLE.

Step 1 — Try an internal demand (optional but helpful)

Send HR/payroll a short written demand citing your EMLL full-pay entitlement and asking for payment of the salary differential within a reasonable period (e.g., 5–10 working days). Attach your computation.

Step 2 — File a Request for Assistance (RFA) under SEnA at the DOLE Regional/Field Office

Go in person to the DOLE Regional/Field Office with jurisdiction over your workplace (or where you reside), or file through their publicized channels (email/online intake—availability varies by region).
State the issues: “Non-payment/underpayment of maternity leave salary differential under EMLL; delayed advancement of SSS maternity benefit (if applicable).”
Attach or bring evidence (Section 7).
DOLE will schedule a conciliation conference (often within a few working days).

Step 3 — Conciliation–mediation conferences

A SEnA Desk Officer (SEADO) facilitates.
The employer appears; the SEADO clarifies the law (differential duty and narrow exemptions), and explores settlement (full payment or a written, dated installment agreement).
If the employer claims exemption, the SEADO may require documents to substantiate it.

Step 4 — Settlement or non-settlement

If settled, insist on a written settlement agreement that is clear on amount, due dates, and mode of payment (cash/bank transfer), and ask for penalty on delay (e.g., legal interest) if payments are staggered. Keep a copy.
If no settlement, the SEADO issues a Referral or SEnA Certificate of Non-Settlement, enabling you to elevate the matter.

9) After SEnA: Two main routes

Route A — NLRC (Labor Arbiter) complaint for money claims

Appropriate where you seek pure monetary relief (salary differential, damages/attorney’s fees if warranted).
File a complaint with the NLRC Regional Arbitration Branch that covers the workplace. Attach the SEnA non-settlement certificate, your evidence, and computation.
Proceedings involve position papers, mandatory conferences, and eventual decision. Writ of execution can be issued if the employer does not comply.

Route B — DOLE labor standards enforcement via complaint/inspection

You may also file with DOLE to trigger an inspection for possible labor standards violations (e.g., non-payment of statutory benefits).
If violations are found, DOLE may issue compliance orders and assess administrative penalties. This is useful if multiple workers are similarly affected.

(You can pursue both tracks in sequence—SEnA, then NLRC; or inspection if systemic.)

10) What to expect, practically

Timeline: SEnA aims to conclude within about 30 days from the first conference (extendable by agreement). NLRC timelines vary but expect several months to decision.
Attendance: If the employer fails to appear at SEnA, you still get the non-settlement certificate and proceed.
Proof burden: You must show employment, entitlement, SSS benefit received (or due), and your computation; the employer must prove any exemption.
Interest: If the case proceeds to adjudication, legal interest may be awarded on the unpaid amounts from the time they fell due.
Retaliation: Dismissal or adverse action because you asserted maternity rights may ground a separate illegal dismissal or discrimination claim.

11) Common employer arguments—and how they usually fare

“We will pay after SSS reimburses us.” Not valid. Employers must advance full pay on regular paydays and recover later from SSS.
“We are exempt as distressed/BMBE/small.” Maybe—but strictly proven. Exemptions are narrow and document-dependent. Absent solid proof, DOLE will require payment.
“You are on probationary/fixed-term/project.” Still covered. Employment status does not remove entitlement if there is an employer–employee relationship.
“You gave late notice to SSS.” Notice/claims issues may affect SSS reimbursement, but they do not erase the employer’s duty to grant maternity leave with full pay (subject to statutory requirements). Employers must manage their SSS compliance; workers should not be penalized for employer lapses.

12) Clean, simple demand template (you can adapt)

Subject: Demand for Payment of Maternity Leave Salary Differential (EMLL)

Dear HR/Payroll, I availed of [105/60/120] days maternity leave from [start date] to [end date]. Under the Expanded Maternity Leave Law, I am entitled to full pay, with the employer shouldering the salary differential (the difference between my full pay and the SSS maternity benefit).

My computation is attached. Kindly release ₱[amount] as salary differential within [5/10] working days. Otherwise, I will seek assistance from DOLE (SEnA) and, if needed, file a case with the NLRC.

Thank you, [Your name, position] Employee No./ID: Contact:

13) Checklist before you go to DOLE

Computation worksheet (showing Full Pay, SSS benefit, Differential)
Supporting payslips/payroll proofs
SSS maternity notice/claim documents (or SSS benefit credit advice)
Medical/birth records (or certificate of miscarriage/ETP)
Employment proof (ID, contract, HR emails)
Copy of demand letter/email and proof of sending
Any employer “exemption” document they relied on (if any)

14) Practical tips

File early—do not let the 3-year prescriptive period lapse.
If you’re a solo parent, assert the additional 15 paid days (and remember: the differential applies to those extra days too).
If your employer is cash-constrained, you can settle on installments only if: (a) the schedule is short, (b) the total equals your full claim, and (c) the agreement is written, dated, and witnessed at DOLE.
Keep digital copies (PDF/photos) of everything you submit or sign.
For group cases, workers similarly situated can file together (helpful for inspections).

15) FAQs

Q: Can my employer force me to use my leave credits to “top up” my pay? A: No. EMLL pay should be separate. You may apply available service incentive leave/vacation for days beyond the paid entitlement or for the 30-day unpaid extension, but not to replace the employer’s differential duty.

Q: I didn’t receive the SSS maternity benefit yet. Can I still demand the differential? A: Yes. The employer’s obligation is to advance full pay. SSS reimbursement issues are between SSS and the employer.

Q: We are paid semi-monthly. How should the full pay be released? A: On the regular paydays covering the leave period (e.g., semi-monthly runs), like normal salary.

Q: Does the 7-day allocation to the father/alternate caregiver affect my pay? A: No. That allocation is from your paid entitlement, but your full pay for the total paid days remains your entitlement. How the employer handles the allocated days is an internal payroll matter.

16) Bottom line

If you are a private-sector employee who gave birth or suffered miscarriage/ETP, you are entitled to maternity leave with full pay.
Employers pay the full amount on time and get reimbursed by SSS for the maternity benefit portion.
The salary differential—the gap between your full pay and the SSS benefit—is for the employer’s account, save for narrow, provable exemptions.
To enforce: Demand → DOLE SEnA → Settlement or NLRC/DOLE enforcement.
Act within 3 years, keep your documents, and be precise with your computation.