Payment for Partial Performance of Interview Work in the Philippines (A practitioner-oriented legal explainer – updated as of 13 June 2025)
1. Why this topic matters
Philippine employers—especially in media, design, BPO/IT-BPM, and R&D—often ask job-seekers to produce “sample output,” “test projects,” or even a few hours of actual billable work before a formal hiring decision is made. When the applicant carries out all or part of that assignment, two questions quickly arise:
- Is it “work” under the Labor Code?
- If so, what must be paid, when, and how?
Failing to answer correctly exposes the company (and its officers) to wage-and-hour claims, double indemnity, and—in extreme cases—criminal prosecution.
2. Controlling sources of law
| Layer | Key provisions & concepts |
|---|---|
| 1987 Constitution | Art. XIII §3: guarantees workers a “living wage” and special protection “regardless of the nature of their employment.” |
| Labor Code (PD 442, as amended) | • Art. 97(f): “Wage” means any compensation “for work performed or to be performed,” covering time spent under the employer’s control. • Art. 102-103: wages must be paid in legal tender at least once every two weeks or twice a month. • Art. 118 & 303(c): criminalizes withholding wages thru force, stealth, or fraud. |
| Civil Code | Art. 2142-2176: quantum meruit and negotiorum gestio—basis for recovery when one party benefits unjustly from another’s work. |
| Apprenticeship & Learnership provisions | Even bona fide apprentices must be paid ≥ 75 % of the minimum wage (Art. 75). Anything less is illegal. |
| Special wage orders | Regional Tripartite Wage and Productivity Boards (RTWPB) fix minimums; failure to pay the correct rate triggers double indemnity under R.A. 8188. |
Bottom line: Once the task confers a discernible benefit to the company—no matter how small or preliminary—the output creator is entitled to compensation equivalent to the value received.
3. Recent policy clarifications (DOLE & CSC)
| Instrument | Substance |
|---|---|
| DOLE Labor Advisory No. 06-23 – “Payment of Wages for Pre-Employment Training, Trial, or Orientation” | Reiterates that any “productive work” rendered before signing a regular or probationary contract must be paid not lower than the prevailing statutory minimum wage, pro-rated to actual hours worked. |
| DOLE Labor Advisory No. 04-24 – “Guidelines on Test Projects in Creative & IT-BPM Recruitment” | (a) Limits unpaid assessments to one hour of hypothetical tasks; (b) mandates a written disclosure that the output will not be commercially exploited; (c) anything beyond that must be covered by (i) a consultant agreement or (ii) daily-rate payroll with SSS, PhilHealth, and Pag-IBIG. |
| Civil Service Commission (CSC) MC No. 12-2022 | For government recruiters, forbids “take-home assignments” that exceed three hours unless an honorarium is budgeted and paid via Advice of Sub-Allotment (ASA). |
Although some advisories post-date the Code, agencies treat them as authoritative administrative interpretation—courts defer to them so long as they do not defeat the statute.
4. Key jurisprudence
| Case | G.R. No. / Date | Holding relevant to interview work |
|---|---|---|
| Mabeza v. NLRC | 118506, 18 Apr 1997 | “Trainees” who performed the same functions as regular sales staff were employees ab initio and entitled to full wages. |
| Abbott Laboratories v. Alcaraz | 192571, 23 Jul 2013 | Even during probation, the employee already enjoys all wage-and-hour protections; probation is for security of tenure, not for wage reduction. |
| Mercado v. Steritex | 200431, 26 Mar 2014 | The Court applied quantum meruit to award pay for “probationary” work done under management control even though the formal hiring was later nullified. |
| DM Consunji v. NLRC | 119792, 20 Aug 1998 | Employers cannot invoke “test period/no contract” as a defense once work has been rendered. |
Doctrine distilled: Control + benefit = compensable labor—regardless of the title (“applicant,” “intern,” “demo,” etc.).
5. How to compute pay for partial performance
Establish the relevant minimum wage. Use the RTWPB rate for the location where work was done. Example (NCR, as of June 2025): ₱645/day ≈ ₱80.63/hour (8-hour divisor).
Multiply by hours spent on the assignment, including necessary prep (reading briefs, setting up software) if mandated by the employer.
Formula: Hourly rate × Actual hours = Basic test-task pay
Add differentials if the work qualified for: ▸ Night-shift (10 pm-6 am) +10 % ▸ Holiday or rest-day premium ▸ Overtime (> 8 hrs/day) +25 % (or +30 % if rest day/holiday)
Optional tokenized pricing (common in creative gigs): lawful only if (a) the rate ≥ minimum, and (b) the applicant knowingly accepts in writing.
No deductions except for lawful contributions if the relationship is deemed employer-employee. Where the company treats the pay as an honorarium (i.e., no control, purely voluntary), only 10 % withholding tax on professional fees may apply.
6. Administrative and criminal liability for non-payment
| Violation | Legal basis | Sanction |
|---|---|---|
| Failure to pay any wage for interview work that created value | Art. 102-103, Labor Code; R.A. 8188 | • Double indemnity (unpaid wage × 2) • Fine ₱25k-₱100k and/or 2-4 years’ imprisonment |
| Paying below regional minimum | Wage Order + R.A. 8188 | Same double indemnity + fine/jail |
| Coercing “free work” under threat of losing job offer | Art. 118 (Unfair labor practices) | Criminal action independent of wage claim |
| Misclassification to evade SSS/PhilHealth | SSS Law (8282), UHC Law (11223) | 6-12 years’ imprisonment + fine ₱5k-₱20k/day of violation |
7. Enforcement pathways for aggrieved applicants
- Single-Entry Approach (SEnA) – File a Request for Assistance with the DOLE Field/Provincial Office; free mediation within 30 days.
- NLRC money-claim case – If SEnA fails, docket with the NLRC Arbitration Branch (3-year prescriptive period from accrual).
- Small-claims court (if purely contractual and ≤ ₱400k).
- Bureau of Working Conditions (BWC) complaint for systemic or nationwide practices.
- Ombudsman / CSC route when the recruiter is a state agency.
8. Employer compliance checklist
| Step | Good practice |
|---|---|
| A. Pre-assignment disclosure | Give written brief stating: purpose strictly evaluative, estimated hours, and whether output will be used commercially. |
| B. Limit unpaid practical tests | Keep it hypothetical; cap at 1 hour (following LA 04-24). |
| C. Pay promptly for extended tasks | Issue payroll voucher or BIR-2307 (professional fees) within 15 days from service. |
| D. Option: Consultancy contract | For longer “project-based auditions,” execute a straightforward service agreement complying with the Civil Code and the applicable withholding-tax schedule. |
| E. Keep time-records | Use a simple time sheet signed by the applicant (paper or e-log) to avoid later disputes. |
| F. Avoid IP pitfalls | If you intend to own the test output, spell out an IP assignment clause and ensure consideration (payment) is clearly stated. |
9. Special sectors & FAQs
| Situation | Is pay mandatory? | Notes |
|---|---|---|
| Creative agencies demanding a full storyboard | Yes. | Storyboards are commercially exploitable; must pay at least pro-rated min-wage or agreed creative fee. |
| BPO “mock call” lasting <30 data-preserve-html-node="true" min | Generally No, if purely simulated and not recorded for real clients. | |
| Software firm asking applicant to fix a live bug | Yes. | Direct benefit to firm’s codebase triggers wage-entitlement. |
| Government hiring panel assigning an Excel model overnight | Yes, plus honorarium via ASA if >3 hrs (CSC MC 12-2022). | |
| Applicant walks out halfway | Pay only for hours actually rendered (quantum meruit); employer still liable to tender payment. | |
| Zero-rated VAT status? | Wage payments are not subject to VAT. Professional fees may be, depending on annual gross receipts. |
10. Intersection with social-protection laws
Once the arrangement crosses the line into employment (control test + payment of wages), the recruiter must remit:
| Contribution | Statute | Employer share (%) | Effective when |
|---|---|---|---|
| SSS | R.A. 11199 | 8-9.5 % (tiered) | First day of compensable service |
| PhilHealth | R.A. 11223 | 4 % (shared) | Same |
| Pag-IBIG | R.A. 9679 | 2 % | Same |
Failure triggers surcharges and personal liability of corporate officers.
11. Comparative glance (optional benchmarking)
| Jurisdiction | Approach to “spec work” |
|---|---|
| U.S. (California) | Cal. Lab. Code §201.79 requires payment for any pre-employment task that produces company value; voiced in 2024 Uber settlement. |
| EU (Directive (EU) 2019/1152) | Broad “transparent and predictable working conditions” directive—unpaid pre-employment production may violate Art. 4. |
| Singapore | MOM Advisory 2023 encourages at least a nominal honorarium (SGD 75/day) for tasks >4 hours. |
The Philippine framework is therefore aligned with emerging global norms.
12. Practical tips for applicants
- Ask upfront: “Will this assignment be paid if it exceeds one hour?”
- Keep evidence: emails, Slack instructions, time stamps, version history.
- Invoice if hired as consultant: use BIR-registered receipt; cite TIN.
- File within three years: wage claims prescribe after 3 years under Art. 306.
13. Conclusion
Under Philippine law, any productive labor rendered during the recruitment stage—whether completed or only partially performed—creates an immediate, enforceable right to remuneration. The measure is at least the pro-rated regional minimum wage, plus statutory premiums and benefits where an employment relationship is implied.
Employers that continue to rely on “free test work” risk stiff financial and even criminal penalties, while workers can invoke a robust mix of constitutional, statutory, and jurisprudential tools to secure just payment.
Rule of thumb: If the company could monetize or otherwise benefit from the output, the applicant must be paid—no ifs, buts, or HR fictions.
(This article is educational commentary and does not constitute formal legal advice. For circumstances involving large sums or complex IP issues, consult counsel and/or the Department of Labor and Employment.)