It is the right of an employer to hire its own employees.

Labor laws do not,

generally, authorize interference with the employer’s judgment in the
conduct of its business. Thus, the determination of the qualifications and
fitness of workers for hiring are exclusive prerogatives of management. The
employer is free to determine, using his own discretion and business
judgment, all elements of employment, "from hiring to firing," except in cases
of unlawful discrimination, or those which may be provided for by law (NFL, et.
al., v., NLRC, 202 SCRA 346 [1991]).

Now, are there existing laws which regulate, or restrict the exercise of the
prerogative of an employer to hire its own employees?

Let us first check our Labor Code. Under this Code, we have Article 136
which prohibits an employer from requiring as a condition of employment that
a woman employee shall not get married.

Another provision is Article 139 which prohibits an employer from employing

any person below 18 years old in an undertaking which is hazardous, or
deleterious in nature.

DOLE Department Order 04, Series of 1999, entitled "Hazardous

Work/Activities Of Persons Below 18 Yrs" clearly defines and enumerates
what are considered as hazardous workplaces. In other words, only persons
18 years of age or above can be employed in these hazardous, or deleterious
workplaces.

The codezalso has Article 248 which considers as unfair labor practice an act
of the employer to require as a condition of employment that a person or
employees shall not join a labor organization.

As regards the employment of children below 15 years of age, Republic Act

No. 7610 otherwise known as "Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act," as amended by Republic Act No.
7658, expressly defines the conditions under which a child below 15 years old
may be employed. Thus, Sec. 12 thereof states that children below 15 years
of age shall not be employed except: 1) When a child works directly under the
sole responsibility of his parents or legal guardian and where only members of
the employer’s family are employed: Provided, however, That his
employment neither endangers his life, safety, health and morals, nor impairs
his normal development: Provided further, That the parent or legal guardian
shall provide the said minor child with the prescribed primary and/or
secondary education; or 2) When a child’s employment or participation
in public entertainment or information through cinema, theater, radio or
television is essential: Provided, The employment contract is concluded by the
child’s parents or legal guardian, with the express agreement of the
child concerned, if possible, and the approval of the Department of Labor and
Employment: and Provided, That the following requirements in all instances
are strictly complied with:

(a) The employer shall ensure the protection, health, safety, morals and
normal development of the child;

(b) The employer shall institute measures to prevent the child’s

exploitation or discrimination taking into account the system and level of
remuneration, and the duration and arrangement of working time; and

c) The employer shall formulate and implement, subject to the approval and
supervision of competent authorities, a continuing program for training and
skills acquisition of the child.

In the above exceptional cases where any such child may be employed, the
employer shall first secure, before engaging such child, a work permit from
the Department of Labor and Employment which shall ensure observance of
the above requirements.

The same Act also provides in Sec. 14 thereof that no person shall employ
child models (below 18 years old) in all commercials or advertisements,
promoting alcoholic beverages, intoxicating drinks, tobacco and its by-
products, and violence.

Aside from the above, there are other "labor-related" special laws. Thus,
under Republic Act No. 7877, otherwise known as the "Anti-Sexual
Harassment Act of 1995", an employer is prohibited from asking sexual favor
as a condition in the hiring or in the employment of an individual.

The employer is also prohibited from discriminating against a qualified

disabled person by reason of his disability in regard to hiring. This is
contained in Republic Act 7277 otherwise known as "Magna Carta for
Disabled Persons."

The more recent "labor-related" piece of legislation is Republic Act No. 8791
otherwise known as the "General Banking Laws of 2000." This law contains a
provision which states that no bank shall employ casual or non-regular
personnel, or too lengthy probationary personnel in the conduct of its
business involving deposits.

It is therefore clear that while an employer has the prerogative to hire, such
power is not absolute as there are existing laws which regulate, or restrict the
exercise thereof.
Sec. 35. Discrimination in the workplace. – Discrimination in any
form from pre-employment to post-employment, including hiring,
promotion or assignment, based on the actual, perceived or suspected
HIV status of an individual is prohibited. Termination from work on
the sole basis of actual, perceived or suspected HIV status is deemed
unlawful.