Employment Law Training and Law Advisory

To accomplish their duties well, today’s HR teams and Business managers require a variety of training. One such training is labor and employment law training. Employers will benefit greatly from such training in terms of avoiding or at the very least minimising legal exposure for employment-related disputes.

Such as

• Basic labor and employment laws
• Interviewing, selection, and hiring
• Discipline and discharge
• Performance management
• Documentation and record-keeping
• Discrimination, harassment, and retaliation
• Attendance and leaves
• Disabilities, pregnancy, and religious beliefs
• Safety and health
• Electronic communications and employee privacy
• Unionized workforce
• Contract Labor Deployment and Management

Employment Law Advisory

We provide continued employment law advisory for our client organizations. Our specialized lawyers provide advice to our clients regarding Policy, Process, Organization restructuring, separation, Reduction in force, and other critical decisions. We aim to provide advisory that shall avoid disputes. Also, we provide pre-litigation dispute resolution and defend clients in disputes with employees, unions, works councils, and government agencies at tribunals and other platforms.

We advise our clients on the applicability of Labor / Employment laws, their obligations and compliances, and the consequences of non-compliance, as well as issues such as The Employees’ Compensation Act, The Trade Unions Act, The Payment of Wages Act, The Industrial Employment (Standing Orders) Act, The Industrial Disputes Act, The Minimum Wages Act, The Employees’ State Insurance ActThe Factories Act, The Plantation Labour Act, The Mines Act, The Employees’ Provident Funds and Miscellaneous Provisions Act, The Working Journalists and Other Newspapers Employees (Conditions of Service) and Miscellaneous Provisions Act, The Working Journalists (Fixation of rates of Wages) Act, The Employment Exchange (Compulsory Notification of Vacancies) Act, The Motor Transport Workers Act, The Maternity Benefit Act, The Payment of Bonus Act, The Contract Labour (Regulation and Abolition) Act, The Payment of Gratuity Act, The Equal Remuneration Act, The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, The Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, The Cine Workers Welfare Fund Act, The Dock Workers (Safety, Health and Welfare) Act, The Child and Adolescent Labour (Prohibition and Regulation) Act, The Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by Certain Establishments) Act, The Building and Other Constructions Workers’ (Regulation of Employment and Conditions of Service) Act, The Building and Other Construction Workers Welfare Cess Act, 1996, state-specific Shops & Establishments enactments, Transgender Persons (Protection of Rights) Act, and others, to name a few, are all applicable in India covering complete hire to retire cycle of employee.

Labor laws in India with Penal clauses i.e. Imprisonment

Labor laws in India are designed to regulate employment relationships, protect workers' rights, and ensure fair and equitable treatment of employees. Many labor laws in India have provisions for penal clauses, which outline penalties and consequences for employers who violate these laws. Here are some key labor laws in India with penal clauses:

Industrial Disputes Act, 1947:

This law governs the resolution of industrial disputes and layoffs. It includes provisions for penalties in case of illegal strikes, lockouts, or unfair labor practices.

Penalties can include fines or imprisonment for both employers and employees involved in illegal strikes and lockouts.

Employees' Provident Funds and Miscellaneous Provisions Act, 1952:

This act regulates the establishment and management of the Employees' Provident Fund (EPF) scheme. It ensures that employers contribute to the EPF for their employees.

Penalties for non-compliance include fines and imprisonment for employers who fail to deposit contributions or submit required documentation.

Employees' State Insurance Act, 1948:

The ESIC Act provides for the establishment of the Employees' State Insurance Corporation, which provides medical and cash benefits to employees and their families.

Penalties include fines for employers who do not register with ESIC or fail to contribute their share to the fund.

Minimum Wages Act, 1948:

This act sets the minimum wage rates that employers must pay to workers in certain scheduled employments. Non-compliance can lead to penalties.

Penalties can include fines and imprisonment for employers who pay less than the prescribed minimum wages.

Payment of Gratuity Act, 1972:

This law mandates the payment of gratuity to employees who have completed at least five years of continuous service with an employer.

Penalties include fines and imprisonment for employers who fail to pay gratuity as required.

Factories Act, 1948:

The Factories Act regulates the conditions of work in factories. Violations of safety, health, and welfare provisions can lead to penalties.

Penalties may include fines and, in some cases, imprisonment for employers who do not comply with safety regulations.

Child and Adolescent Labor (Prohibition and Regulation) Act, 1986:

This act prohibits the employment of children in certain hazardous occupations and regulates the working conditions for adolescents.

Penalties include fines and imprisonment for employers who employ children or violate the regulations.

Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (PoSH Act):

This act aims to prevent and address sexual harassment in the workplace. Employers are required to comply with its provisions and create a safe environment.

Penalties for non-compliance can include fines and legal action against employers.

It's important to note that the specific penalties and consequences under these labor laws can vary depending on the severity of the violation and the specific provisions of each law. Employers are encouraged to comply with all labor laws to avoid legal consequences and ensure fair treatment of their employees. Employees who believe their rights have been violated can file complaints with the appropriate labor authorities.

Suspension of Employee in India

In India, the suspension of an employee can be done under certain circumstances as per labor laws and company policies. Employee suspension typically means placing an employee on temporary leave from work with pay or without pay, pending an investigation or inquiry into alleged misconduct or other issues. Here are some common situations in which an employee can be suspended in accordance with Indian labor laws, and the related salary dues:

1. Pending Disciplinary Inquiry:

• If an employee is alleged to have committed a serious act of misconduct or violation of company policies, they may be suspended pending a disciplinary inquiry or investigation.

• During suspension pending inquiry, the employee may be entitled to receive a subsistence allowance, which is typically a fraction of their regular salary.

2. Criminal Proceedings:

• If an employee is involved in criminal proceedings, such as being charged with a criminal offense, the employer may suspend the employee during the pendency of the case.

• In such cases, the employee's salary dues may be paid as per the company's policy, which could include partial or full payment during suspension.

3. Investigation of Allegations:

• If there are allegations of financial irregularities, harassment, or other serious workplace issues involving an employee, the employer may suspend the employee temporarily while conducting an investigation.

• Salary dues during suspension in such cases may vary, and it's usually determined by the terms of the employment contract or company policies.

4. Pending Legal Actions:

• In some cases, when a legal dispute or case involving the employee is pending, the employer may opt to suspend the employee temporarily.

• Salary dues during suspension in these situations are typically outlined in the employment contract or company policies.

It's important to note that the specific terms of suspension, including the payment of salary dues, can vary from one company to another and may depend on the circumstances surrounding the suspension and the terms of the employment contract. Therefore, it is essential for both employers and employees to refer to the employment contract, company policies, and relevant labor laws to understand the rights and obligations during a suspension.

Employees who believe they have been unjustly suspended or who have concerns about salary dues during suspension should seek legal advice and assistance to protect their rights and interests. Similarly, employers should ensure that any suspension actions are carried out in compliance with labor laws and regulations to avoid legal repercussions.

Employment Law - If your employer doesn't release pending dues in India, you can take the following steps

If your employer doesn't release pending dues in India, you can take the following steps:

1. Check Employment Contract: Review your employment contract to understand the terms and conditions related to payments, notice periods, and dues. Ensure you have clear documentation of the dues owed.

2. Send a Reminder: Politely remind your employer about the pending dues through written communication, such as an email or a formal letter. Include details of the outstanding amount and request a specific date for payment.

3. Contact HR or Payroll: If your company has an HR or Payroll department, reach out to them for assistance. They may be able to expedite the process or provide information about the status of your dues.

4. Labour Commissioner: In India, you can file a complaint with the local Labour Commissioner's office. They can mediate between you and your employer to resolve payment disputes.

5. Labour Court: If the issue persists, you can file a case in the labor court. You may need to engage a lawyer experienced in labor law for this process. Be prepared to provide evidence of your employment and the outstanding dues.

6. Collective Action: If multiple employees are facing similar issues with the same employer, consider joining together to address the matter collectively. This can increase your bargaining power.

7. Stay Persistent and Document: Keep detailed records of all communication, including emails, letters, and payment receipts. Persistence and a well-documented case can be crucial in resolving the issue.

Remember that Indian labor laws can be complex and vary depending on the state and industry. It's advisable to seek legal counsel early in the process to ensure you take the appropriate steps for your specific situation.

Compliance with the Employees' Provident Fund (EPF) in India

Compliance with the Employees' Provident Fund (EPF) in India is essential for employers to ensure that their employees receive retirement benefits. The EPF is governed by the Employees' Provident Funds and Miscellaneous Provisions Act, of 1952. Here are the key aspects of compliance for employers with regard to EPF:

1. Registration:

• Employers are required to register with the Employees' Provident Fund Organization (EPFO) within one month of employing the first eligible employee. This includes obtaining an Employer Identification Number (EPF code).

2. Eligibility and Coverage:

• All establishments employing 20 or more employees are generally required to provide EPF coverage. However, certain establishments with fewer employees can also opt for voluntary coverage. It's essential to determine eligibility and cover all eligible employees.

3. Employee Contribution:

• Employers are responsible for deducting the employee's share of the EPF contribution (currently 12% of the employee's basic wages plus dearness allowance) from their salary and depositing it into their EPF account.

4. Employer Contribution:

• Employers are required to contribute an equal amount to the EPF account of the employee. This contribution includes 3.67% toward the EPF and 8.33% toward the Employee Pension Scheme (EPS). The remaining 0.5% goes to the Employees' Deposit Linked Insurance (EDLI) scheme.

5. Administrative Charges:

• Employers are also responsible for paying administrative charges to the EPFO, which are currently 0.5% of the employee's monthly wages.

6. Declaration and Nomination Forms:

• Employers should ensure that all new employees fill out the necessary declaration and nomination forms for EPF and EPS. These forms provide details about the employee's family and nominees for benefits.

7. Monthly Contribution Deposit:

• Employers are required to deposit the total EPF contributions (employee and employer shares) along with administrative charges by the 15th of the following month. This can be done electronically through the EPFO's online portal.

8. Record Maintenance:

• Employers must maintain accurate and up-to-date records of employees' EPF contributions, wages, and other relevant details. These records should be retained for a specific period (usually seven years).

9. Annual Returns and Reporting:

• Employers should submit annual returns, including details of contributions and new employees, to the EPFO. This helps in maintaining compliance and updating records.

10. Transfer of Accounts:

• In case an employee changes jobs, their EPF account should be transferred to the new employer. Employers should facilitate this process.

11. Nomination and Withdrawals:

• Employers should guide employees on the nomination process and assist them with EPF withdrawals for specific purposes like retirement, marriage, education, etc.

12. Inspection and Audits:

• Employers should be prepared for inspections and audits conducted by EPFO officials to ensure compliance with EPF regulations.

13. Penalties and Legal Consequences:

• Non-compliance with EPF regulations can result in penalties, fines, and legal actions against the employer. Ensuring compliance is crucial to avoid such consequences.

It's essential for employers in India to stay informed about changes in EPF regulations and to maintain proper records and documentation to facilitate compliance. Regularly checking with the EPFO and using their online portal for various transactions can help employers stay on top of their EPF responsibilities.

How does government do ESIC inspections

The Employees' State Insurance Corporation (ESIC) in India conducts inspections to ensure compliance with ESIC regulations. These inspections are carried out by ESIC officials to verify that employers are adhering to the provisions of the ESIC Act. Here's how the government typically conducts ESIC inspections:

1. Pre-Inspection Notice:

• ESIC authorities may provide advance notice to employers about an impending inspection. This notice is usually issued in writing and includes the date, time, and purpose of the inspection.

2. Inspection Team:

• An inspection team comprising ESIC officials and inspectors is assigned to carry out the inspection. The team may include officials from various departments, such as compliance, finance, and legal.

3. Document Verification:

• During the inspection, the team will review the employer's records and documents related to ESIC compliance. This may include:

• Employee records, including attendance and salary/wage details.

• Payroll records to verify deductions and contributions made to ESIC.

• Register of employees eligible for ESIC benefits.

• Contribution statements and challans showing timely payment of contributions.

• Any other documents related to ESIC compliance.

4. Interviews and Interactions:

• Inspectors may conduct interviews with employees to verify their awareness of ESIC coverage and benefits.

• Employers may also be interviewed to clarify any discrepancies or seek additional information.

5. Physical Verification:

• Inspectors may physically visit the workplace to assess the working conditions, check attendance records, and ensure that all eligible employees are covered under ESIC.

6. Reporting and Findings:

• After the inspection, ESIC officials compile their findings, including any non-compliance issues or violations observed during the inspection.

7. Compliance Assessment:

• Based on the findings, ESIC authorities assess the level of compliance with ESIC regulations. This includes evaluating whether contributions have been made accurately and on time and whether all eligible employees are covered.

8. Notice of Non-Compliance:

• If violations or non-compliance issues are identified during the inspection, the employer may be issued a notice specifying the areas of non-compliance and the corrective actions required.

9. Penalties and Actions:

• Employers who fail to address identified non-compliance issues may face penalties, fines, or legal actions, as specified under ESIC regulations.

10. Appeal Process:

• Employers have the right to appeal against any adverse findings or penalties imposed during the inspection. They can follow the established appeal process to seek a resolution.

It's important for employers to cooperate fully with ESIC inspectors during the inspection process. Non-compliance with ESIC regulations can result in penalties, fines, and legal actions, so addressing any issues identified during inspections promptly is advisable.

Employers should also proactively ensure compliance with ESIC regulations to minimize the likelihood of violations and potential penalties. This includes maintaining accurate records, making timely contributions, and regularly reviewing ESIC guidelines for any updates or changes.

eSignature Legality in India in corporate and commercial contracts

The Information Technology Act of 2000 ("ITA"), the Indian Contract Act of 1872 ("ICA"), and the Electronic Signature or Electronic Authentication Technique and Procedure Rules of 2015 ("ESEATPR") all recognise electronic signatures as valid legal documents in India.

 

The ITA, the ICA, the ESEATPR, the Indian Stamp Act of 1899, and the pertinent state stamp acts are the pertinent legislation and regulations pertaining to the usage of electronic signatures in India. These laws provide the framework for:

 

What "electronic signatures" are accepted by the government of India;

What paperwork or agreements cannot be made electronically;

What requirements all contracts, including those using electronic signatures but not in compliance with the ITA's officially recognised standards, must satisfy; and

Whether stamp duty is required to be paid on a specific electronic transaction.

 

A contract cannot be denied enforceability solely because it was executed electronically, according to the ITA, as long as it satisfies the requirements of a legal contract under the ICA.

Section 10 of the ICA lists the prerequisites for a legal contract. These components are listed below:

 

It is entered into by persons who are legally able to do so; it results from their free will (i.e., a valid offer and acceptance); it provides for reciprocal consideration between the parties; and it does not call for the performance of any illegal acts.

An electronic signature, according to the ITA, is "authentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule and includes digital signature."

 

According to the ITA, a "digital signature" is the "authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3 [of the ITA]."

 

An "electronic signature" must meet certain requirements to be lawfully accepted under the ITA.

 

"Reliable" behaviour 

 

Utilise a method of authentication listed in the Second Schedule to the ITA.

 

An electronic signature is considered “reliable” if:

·       The signature creation data or the authentication data are, within the context in which they are used, linked to the signatory or to the authenticator and to no other person;

·       The signature creation data or the authentication data were, at the time of signing, under the control of the signatory or the authenticator and of no other person;

·       Any alteration to the electronic signature made after affixing such signature is detectable;

·       Any alteration to the information made after its authentication by electronic signature is detectable;

·       There is an audit trail of steps taken during the signing process; and

·       The digital signer certificates are issued by a Certifying Authority recognized by the Controller of Certifying Authorities appointed under the IT Act.

·       The Second Schedule provides that an “electronic signature” or electronic record can be authenticated by using either of the following methodologies:

·       Aadhaar e-KYC services, or

·       A third-party service by subscriber's key pair-generation, storing of key pairs on hardware security modules and creation of digital signature provided that the trusted third party providing such services shall be offered by any of the licensed Certifying Authority.

·       To create a digital signature, a user obtains a digital certificate from a licensed Certifying Authority.