What is the greatest asset an employment can be grateful for? Employees! In any field, the employees are responsible for all the basic groundwork. Only when employees are efficient, the employer benefits from his business.During the course of their employment, all employees are entitled to certain rights. These basic rights are proportional to employer’s duty to make the workplace as comfortable and employee-friendly as possible. These rights safeguard the employee from discrimination based on age, gender, race or religion, protect their interest and entitles them with the right to privacy and fair remuneration.
Written employment agreements are in essence employment contracts. Before starting to work for someone, employees have to make sure to enter into such contracts. Having a valid employment contract has become an essential part of employment nowadays. The contract establishes the employee-employer relationship. It contains the terms and conditions regarding the following:
> Job Designation
> Place of working
> Work hours
> Non-disclosure of confidential information and trade secrets
> Dispute resolution methods
Both the employer and employee have to fulfill the terms and conditions of the contract. The employment contract helps in the enforcement of both the employer and employee’s rights.
Every employee working in the organized sector has a right to a minimum wage. A minimum wage not only guarantees bare sustenance but also provides for education, medical requirements and some level of comfort.
This Minimum Wages Act provides this guarantee. The Act fixes the minimum wage for some scheduled employments. For these employments, this Act applies to the whole of India. The minimum wages are given under this Act apply to both skilled as well as unskilled labourers. This minimum wage is not uniform for all sectors across the country. Both the Central Government and State Government have the power to fix minimum wages according to the following factors:
> Type of work
> Working hours
> Cost of living
> Capacity of the employer to pay
This rate is notified for every applicable industry by the appropriate Government in the Gazette.
Sexual harassment at workplace is a very serious issue. After a landmark Supreme Court judgment, we got the Sexual harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013. It is a criminal offence punishable by the IPC for up to three years with or without fine. Sexual harassment includes one or more of the following:
> Physical contact and advances
> A demand or request for sexual favours
> Making sexually coloured remarks
> Showing pornography
> Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.
The problem with women employees is most of them are afraid to report sexual harassment at workplace. They fear for the security of their job especially when the person harassing is a senior employee or employer. But women employees should have in mind that their safety and dignity comes first.
Many laws in India provide for a specific work hour and the amount of overtime wages. The major rules, are available in the Factories Act. The working hours are different for adults (above 18 years of age), women and young children (aging from 14 to 18).
An adult cannot work for more than 48 hours in a week and not more than 9 hours in a day. If the employee works overtime, he is entitled to twice his regular wages for the extra time.
However, employment for women is restricted from 7:00 PM to 6:00 AM. This can be relaxed to 10.00 PM to 5:00 AM with proper permission. Working hours of child workers are limited to 4.5 hours a day. Female child workers are prohibited to work between 7:00 PM to 8:00 AM.
In addition to this, a weekly holiday is necessary for the employees. An interval period of rest for at least half an hour is also available to the employees. The work shall be arranged such that it does not exceed 12 hours on any day.
Generally, an employee is given the following leaves during the course of his or her employment:
Casual Leave: This is provided to an employee to take care of urgent or unseen matters like a family emergency; for example, employees can apply for casual leave to attend a parent-teacher meeting called for by their child’s school.
Sick Leave: Sick leave is provided when an employee gets sick.
Privilege or Earned Leave: Privilege or earned leaves are long leaves that are planned for in advance.
Other Leaves: Apart from the above mentioned leaves, there are some other paid, unpaid or half-paid leaves which are provided at the discretion of the company. Study leave and bereavement leave are two such examples.
Medical Certificate for one-day sick leave
In one of its judgements, the Supreme Court mentioned that an employee will not necessarily seek medical attention if he or she is ill for just a day.
Leave during notice period: An employee can take leave during notice period, provided it is for a genuine reason like maternity, health issues, etc.
The Delhi High Court, in one of its judgement, said that an employee can take leave during the notice period if nothing is mentioned in the appointment letter which bars the employee from taking leave during the notice period, if he has leave to his credit and is entitled to the same.
Recently, the maternity leave was raised from 12 weeks to 26 weeks. Out of 26 weeks, a maximum of 8 weeks is available as pre-natal leave.
Even adoptive, surrogate and commissioning mothers have the right to avail maternity leave. The number of days varies for each though. The Maternity Benefit Act deals with the rules regarding maternity pay.
The Central Government provides for child care leave and paid parental leave. But there is no such legal obligation on the private sector to provide parental leave. It is the sole discretion of the employer.
Republic Day (January 26), Independence Day (August 15) and Gandhi Jayanti (October 2) are the three national holidays observed in India. It is mandatory to grant leave to all employees on all the three days irrespective of the establishment.
If they want their establishment to work on these days, they need to seek prior permission from the appropriate authority. The employer also must provide compensatory leave or double wages to employees working on those days. Moreover, the compensatory leave should be given within 90 days of such national holiday.
Each State has its own regional festival holidays. Employees have the right to get to paid day-offs during those holidays as well.
We do not have the concept of vacation pay in India. It is called annual leave/earned leave. Every employee in India working for at least 240 days in a year is entitled to 12 days of annual leave. This duration varies for adults and young children. An adult worker can avail one day of earned leave for every 20 days of service. A young worker can avail one day of earned leave for every 15 days of service. Thus, adults get 15 working days as annual leave and young workers get 20 working days as annual leave.
The normal pay is given to the employees for the annual leave days also. The worker can carry over the annual leave to the next year. However, it is not possible to carry over more than 30 days of leave.
Our Constitution mandates equal pay for equal work for both men and women under Article 39 (d). Equal pay means not only the basic salary but also the other benefits and allowances. The Equal Remuneration Act, 1976 obligates the employer to pay equal pay for equal work. However, the employer cannot reduce the pay of the employees in order to show equal pay.
The Payment of Wages Act directs the employers to pay wages within a specified time. If the employee is not receiving remuneration within that time, he can approach the Labour Commissioner or file a civil suit. For employees getting a salary above Rs. 18,000, a civil action against the employer is also available.
Also, payment of wages below the minimum wage rate amounts to forced labour. Our Constitution prohibits forced labour. The employee can also file a case if he does not get the minimum wage.
When the employers change due to sale, acquisition or merger, the conditions of service relating to wages, paid holidays, work hours, etc., should not be changed without giving prior notice to the employees.
A probation period for employees is usually 6 months. The employer has the discretion to extend it for another 3 months. But the maximum probation period cannot exceed 2 years.
An employer is free to terminate the services of the employee only when the employee is not suitable for the job or his work is not satisfactory. However, an employee has the right to receive proper notice before termination. An employee also has the right to ask for a proper inquiry of the problem if the reason for termination is other than unsatisfactory work.
It is the Government’s duty to regulate all workplaces regarding healthy and safe working conditions. The Factories Act provides numerous rules regarding the health, safety, and welfare of the workers. It has provisions for the following:
> Disposal of wastes and effluents
> Ventilation and temperature
> Dust and fume
> Clean drinking water
> Latrines and urinals, and
It is the responsibility of an employer to provide instruction, training, and supervision. This is necessary to ensure health and safety at work of his employees. In hazardous workplaces, the employer needs to give protective equipment like goggles, hand gloves, etc.
The tools and machinery used in the establishment should guarantee safety and repaired at regular intervals. If anything happens to the employee in the workplace because of the negligence of the employer, then the employer will have to pay according to the rules in the Employees Compensation Act.
Gratuity is one of the retirement benefits for employees. It is a lump sum provided by the employer to the employee when the employee leaves the employment. The number of years of service of the employee is the criteria for deciding the gratuity amount. The Payment of Gratuity Act, 1972 provides the rules for giving gratuity to employees. Under this Act, the minimum years of service for getting gratuity are 5 years. There is no contribution from the part of employees in this regard. It is a way of showing gratitude to the employers for their service. If the employer wishes to provide gratuity benefits other than the statutory amount, he may do so. Gratuity is not taxable subject to a limit of ten lakh rupees.
Payment of gratuity to the employee is on account of either of the following:
> Disablement due to accident or illness
> Death of the employee (gratuity paid to employee’s nominees)
However, dismissal of an employee from the services due to lawless or disorderly conduct, acts of violence, offences involving moral turpitude (subjecting a woman to cruelty, killing her for dowry, conviction for a charge of attempt to murder, etc) in the course of employment, it amounts to forfeiture of the gratuity. The employee should be found guilty of such acts for forfeiture.
The Employee’s Provident Fund (EPF) is a scheme providing certain benefits to salaried employees. The Employees Provident Fund Organisation of India (EPFO) oversees and regulates this scheme. The employees can use it for the following:
> Medical Care
> Family obligation ( like marriage expenses)
> Education of Children
> Financing of Insurance Policies
Both the employer and the employee contribute equally to the provident fund. Every month the contribution is at the rate of 12% of the basic salary and dearness allowance. Yearly interests are credited to the fund at a rate fixed by the Government.
This is a voluntary payment but an employee may opt out of this scheme only at the start of the job. Even if one-month contribution is made by the employee, it is not possible to opt out of it. The amount can be withdrawn subject to a waiting period of maximum two months for emergent needs and necessary expenses. The rules specify limits of withdrawal and the necessary years of service for each purpose. For example, an employee can withdraw 50% of the EPF contribution only after 7 years of service. This is also possible only for 3 times during the employment.
The employees are provided with the Right to go on a strike without giving a notice, however if the said employee is a public utility employee, then he would be bound by the prohibitions laid down in the Industrial Disputes Act 1947, Section 22(1) lays down certain conditions on Strikes by public utility employees, the conditions includes giving out prior notice to the employer six weeks before going on such strike.
Every employee will have the right to be insured by the employer under the Employee State Insurance Act 1948, in case of any kind of injury or miscarriage occurring during the course of employment.