Drafting HR Policies in Gurgaon: A Comprehensive Guide

Human Resource (HR) policies form the foundation of a well-structured and legally compliant workplace. In Gurgaon, a thriving corporate and industrial hub, businesses must carefully draft HR policies to ensure compliance with labor laws, enhance employee satisfaction, and foster a productive work environment.

Understanding the Need for HR Policies

HR policies serve multiple purposes:

• Establish clear guidelines for employees and management.
• Ensure compliance with state and national labor laws.
• Minimize workplace disputes and legal risks.
• Enhance organizational efficiency and employee satisfaction.

Key Considerations While Drafting HR Policies

When drafting HR policies in Gurgaon, businesses must consider:

1. Compliance with Indian Labor Laws

Gurgaon falls under Haryana’s jurisdiction, and HR policies must align with:

• The Shops and Establishments Act (Haryana Shops and Commercial Establishments Act, 1958)
• The Factories Act, 1948 (for manufacturing units)
• The Industrial Disputes Act, 1947
• The Payment of Wages Act, 1936
• The Maternity Benefit Act, 1961
• The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952
• The Employees’ State Insurance Act, 1948

2. Workplace Policies

HR policies should define workplace regulations, including:

• Code of Conduct: Ethical standards, professional behavior, and disciplinary procedures.
• Working Hours & Leave Policy: Define working hours, overtime, holidays, and different leave categories (sick leave, casual leave, maternity leave, etc.).
• Anti-Sexual Harassment Policy: In compliance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
• Remote Work & Hybrid Policies: Post-pandemic, many businesses in Gurgaon have adopted flexible work arrangements, and policies should clearly define remote work guidelines.

3. Compensation and Benefits

• Salary structure, minimum wages compliance, and statutory benefits.
• Provident fund (PF), gratuity, and employee insurance.
• Performance-based incentives and bonuses.

4. Employee Onboarding and Exit Policies

• Recruitment procedures and background verification.
• Notice period, resignation, termination policies, and full & final settlement.
• Non-disclosure agreements (NDAs) and non-compete clauses.

5. Data Protection and Confidentiality

With the rise of data-driven businesses in Gurgaon, HR policies must address:

• Protection of employee and company data.
• Compliance with the Digital Personal Data Protection Act, 2023.
• Customizing HR Policies for Gurgaon-Based Businesses

Different industries may have specific HR needs. For example:

• IT & Tech Companies: Emphasis on remote work, intellectual property rights, and cybersecurity policies.
• Manufacturing Units: Stringent safety policies and compliance with factory labor laws.
• Startups & SMEs: Flexible work policies and employee stock ownership plans (ESOPs).

Legal Consultation for HR Policy Drafting

Drafting HR policies requires legal expertise to avoid non-compliance risks. Employers in Gurgaon should consult legal professionals to ensure their policies are up to date with current labor laws and industry best practices.

Conclusion

Well-defined HR policies are crucial for maintaining a transparent, compliant, and employee-friendly workplace in Gurgaon. Businesses must proactively draft and update their HR policies to align with evolving legal requirements and workplace dynamics.

If you need assistance in drafting HR policies for your business in Gurgaon, our legal experts can help ensure compliance and effectiveness.

Website: https://kanchankhatanaandassociates.com/

Email: contact@kanchankhatanaandassociates.com

Phone: +91-9958484845

Labor law Rights : Gig and Platform Workers’ Rights

Gig and Platform Workers’ Rights: Shaping the Future of Work.

The rise of the gig economy has transformed traditional employment models, offering flexibility but often at the cost of social security. Recognizing this, the Code on Social Security, 2020, marks a progressive step toward integrating gig and platform workers into the social security framework. This legislation aims to provide protections such as insurance, gratuity, and welfare schemes, ensuring a safety net for this rapidly growing workforce.

Who Are Gig and Platform Workers?

1. Gig Workers:

• Individuals engaged in work arrangements outside the traditional employer-employee relationship. 
• Examples include freelancers, independent contractors, and temporary workers.

2. Platform Workers:

• Workers who provide services through digital platforms, such as food delivery personnel, ride-share drivers, and e-commerce delivery agents.

Key Features of the Code on Social Security, 2020

1. Definition and Recognition:

• The Code formally recognizes gig and platform workers as distinct categories, ensuring they are eligible for specific social security benefits.

2. Social Security Schemes:

• Includes provisions for life and disability cover, health and maternity benefits, old-age protection, and provident fund schemes.

3. Central and State Welfare Boards:

• These boards are tasked with formulating and implementing social security schemes for gig and platform workers.

4. Funding Mechanism:

• Contributions may come from aggregators, central and state governments, and workers themselves. 
• Aggregators are mandated to contribute 1-2% of their annual turnover towards social security for gig workers.

5. Coverage Expansion:

• Provisions extend to both organized and unorganized sectors, reflecting inclusivity.

Objectives of the Legislation

1. To address the vulnerabilities of gig and platform workers by providing a safety net.

2. To reduce disparities between traditional employees and gig workers in terms of benefits and protections.

3. To foster sustainable growth in the gig economy by promoting worker welfare.

Landmark Judgments on Gig and Platform Workers’ Rights

1. Ola and Uber Drivers v. United Kingdom Supreme Court (2021)

While not an Indian case, this judgment is significant globally. The UK Supreme Court ruled that Uber drivers are entitled to minimum wage and paid leave, influencing discussions on gig workers’ rights in India.

2. Food Delivery Workers’ Protests (Various States)

In recent years, protests by food delivery workers across India have highlighted issues like unfair pay, lack of job security, and absence of benefits, bringing gig worker rights to the forefront.

3. Zomato and Swiggy Drivers v. State of Karnataka (2022)

This case emphasized the need for legal recognition of gig workers, compelling state authorities to push for legislative reforms under the Code on Social Security.

Challenges in Implementation

1. Lack of Awareness:

Many gig workers are unaware of their rights and entitlements under the Code.

2. Aggregator Compliance:

Resistance from platform companies regarding financial contributions and accountability.

3. Enforcement Gaps:

Weak monitoring and enforcement mechanisms hinder the effective implementation of the Code.

4. Informal Nature of Work:

High turnover and informal work arrangements complicate the process of extending benefits. 

The Way Forward

1. Strengthening Policy Frameworks:

Developing clear guidelines for implementing social security schemes for gig workers.

2. Public Awareness Campaigns:

Educating gig workers about their rights and available benefits.

3. Collaboration with Aggregators:

Encouraging platform companies to participate proactively in welfare initiatives.

4. Leveraging Technology:

Using digital tools to streamline registration, contributions, and benefit disbursement.

5. Global Best Practices:

Drawing insights from countries with advanced gig worker protections, such as the UK and Australia.

Conclusion

Including gig and platform workers under the Code on Social Security, 2020, is a significant milestone in India’s labor law reforms. By extending social security to these workers, the legislation acknowledges their economic contribution and addresses their vulnerabilities. However, effective implementation and collaboration among stakeholders are essential to realizing the full potential of these reforms. Protecting gig workers’ rights will enhance their livelihoods and ensure sustainable growth in the evolving world of work.

Maternity Leave Law: Ensuring Rights and Welfare for Working Mothers

Maternity Benefit Act

The Maternity Benefit Act, of 1961, is a landmark legislation in India aimed at protecting the rights of women employees during pregnancy and post-childbirth. With its 2017 amendment, the Act has been significantly enhanced to address the needs of working mothers, ensuring a supportive work environment and safeguarding their health and employment rights. Key Features of the Maternity Benefit Act

1. Maternity Leave:

• Increased from 12 to 26 weeks for women employed in establishments with 10 or more employees.
• Up to 8 weeks of leave can be availed before the expected delivery date, and the remaining after childbirth.
• Women with two or more children are entitled to 12 weeks of leave.

2. Adoption and Surrogacy:

Provides 12 weeks of leave for women adopting a child below three months of age or commissioning mothers using surrogacy.

3. Workplace Facilities:

• Establishments with 50 or more employees must provide crèche facilities for children up to the age of six years.
• Mothers are entitled to four visits a day to the crèche, including intervals for rest.

4. Protection from Dismissal:

• Prohibits employers from dismissing a woman during her maternity leave.
• Ensures that women are not assigned arduous tasks or work that may affect their pregnancy.

5. Wages During Maternity Leave:

Women are entitled to full wages during maternity leave, calculated based on the average daily wage for the period of actual absence.

Objectives of the Act

1. To safeguard the health and well-being of pregnant women and nursing mothers.

2. To ensure that women can balance their professional and personal responsibilities without fear of discrimination.

3. To promote gender equality in the workplace by addressing the unique needs of women employees.

Landmark Judgments on Maternity Benefits

1. Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000)

The Supreme Court held that female workers on muster rolls (temporary workers) are entitled to maternity benefits under Article 42 of the Constitution, which emphasizes the provision of just and humane working conditions.

2. Neera Mathur v. Life Insurance Corporation of India (1992)

The Court ruled that an employer cannot deny maternity benefits or dismiss a woman for not disclosing her pregnancy during the hiring process, reinforcing the right to privacy and equality.

3. B. Shah v. Labour Court, Coimbatore (1977)

The Supreme Court clarified that maternity benefits must be provided irrespective of the mode of wages (daily, monthly, or piece rate), ensuring coverage for all working women.

4. J.K. Industries Ltd. v. Chief Inspector of Factories (1996)

This case underscored that maternity benefits are not contingent on the duration of service, as long as the woman fulfills the eligibility criteria under the Act.

Challenges in Implementation

1. Informal Sector Coverage:

A significant portion of India’s female workforce is employed in the informal sector, where the Act’s provisions are often not enforced.

2. Awareness Gap:

Many women, especially in rural areas, are unaware of their rights under the Act.

3. Employer Resistance:

Some employers view maternity benefits as a financial burden, leading to reluctance to hire women or non-compliance.

4. Creche Implementation:

Lack of infrastructure and clarity on guidelines pose challenges in setting up creche facilities.

The Way Forward

1. Extending Coverage:

Expanding the scope of the Act to include women in the informal sector through targeted policies and incentives.

2. Awareness Campaigns:

Conducting nationwide awareness drives to educate women about their rights and entitlements.

3. Incentivizing Compliance:

Offering tax benefits or subsidies to employers who adhere to the Act’s provisions.

4. Monitoring and Enforcement:

Strengthen labor inspections and establish grievance redressal mechanisms to ensure compliance.

Conclusion

The Maternity Benefit Act, of 1961, and its 2017 amendment signify a progressive step toward empowering women and promoting gender equality in the workplace. Landmark judgments have further reinforced the Act’s principles, ensuring that women are protected during one of the most critical phases of their lives. India can create a more equitable workforce by addressing implementation challenges and extending its reach.

Employment law in India - Employee Provident Fund (EPF) and Social Security

Employee Provident Fund (EPF) and Social Security: Safeguarding Workers' Future

The Employees’ Provident Funds and Miscellaneous Provisions Act, of 1952, is a cornerstone of India’s social security framework. It ensures financial security for employees by mandating contributions towards provident funds, pensions, and insurance benefits. The Act covers a wide range of employment sectors and provides a safety net for employees and their families, especially in times of need.

Key Features of the EPF Act

1. Provident Fund (PF):

• Employers and employees contribute equally to the Provident Fund.
• The accumulated amount and interest are payable to the employee upon retirement, resignation, or specified contingencies.

2. Employee Pension Scheme (EPS):

• A portion of the employer’s contribution is directed toward the pension scheme.
• Provides monthly pension to employees upon retirement or to their dependents in the event of the employee’s demise.

3. Employee Deposit Linked Insurance Scheme (EDLI):

• Provides a lump-sum insurance benefit to the nominee in case of the employee’s death during the service period.
• The benefit amount is linked to the employee’s last drawn salary.

4. Applicability:

• The Act applies to establishments employing 20 or more persons.
• Covers employees earning up to a specified wage ceiling, though voluntary coverage is available for higher earners.

Objectives of the Act

1. To ensure financial independence and stability for employees post-retirement.

2. To provide a safety net for employees’ families in unforeseen circumstances.

3. To promote a culture of savings and long-term financial planning among workers.

Landmark Judgments on EPF and Social Security

1. Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Co. (1962)

The Supreme Court held that the EPF Act is a beneficial legislation aimed at securing the welfare of employees. The Court emphasized that its provisions must be interpreted liberally to fulfill its objectives.

2. Manipal Academy of Higher Education v. Provident Fund Commissioner (2008)

This case clarified the definition of "basic wages" to calculate EPF contributions. The Court ruled that allowances forming part of the regular wages must be included in the calculation, ensuring fair contributions.

3. Surya Roshni Ltd. v. Employees Provident Fund (2019)

The Supreme Court reiterated that special allowances paid to employees must be included as part of "basic wages" for EPF contribution purposes, ensuring transparency and fair practices.

4. M/S Himachal Pradesh State Forest Corporation v. Regional Provident Fund Commissioner (2008)

The Court highlighted that even contract workers engaged through intermediaries are entitled to EPF benefits, underscoring the Act’s inclusive nature.

Challenges in Implementation

1. Compliance Gaps: Many small and medium enterprises struggle to comply with the Act due to administrative or financial constraints.

2. Informal Sector Exclusion: Many of India’s workforce is informal, limiting the Act’s reach.

3. Lack of Awareness: Employees often lack understanding of their entitlements under the EPF scheme.

4. Delay in Claims: Procedural delays can hinder timely access to benefits.

The Way Forward

1. Expanding Coverage: Extending the applicability of the EPF Act to include informal sector workers and smaller establishments.

2. Streamlining Processes: Simplifying claim procedures through digitization and automation.

3. Awareness Campaigns: Educating employees and employers about the benefits and obligations under the Act.

4. Strengthened Enforcement: Enhancing monitoring mechanisms to ensure compliance and address grievances efficiently.

Conclusion

The Employees’ Provident Funds and Miscellaneous Provisions Act, of 1952, plays a pivotal role in India’s social security landscape. By providing financial security through provident funds, pensions, and insurance benefits, the Act safeguards employees and their families against uncertainties. While significant progress has been made, addressing implementation challenges and expanding its coverage can further strengthen its impact, ensuring a secure and dignified future for India’s workforce

Labor law in India - Right to Minimum Wages

Right to Minimum Wages: Protecting Workers' Economic Security

The right to minimum wages is a cornerstone of labor rights in India. It ensures that workers receive fair compensation for their efforts. Enshrined in the Minimum Wages Act of 1948, this legislation is a critical tool to combat exploitation and establish a baseline standard of living for workers across various industries.

Key Provisions of the Minimum Wages Act, 1948

The Minimum Wages Act empowers both the Central and State Governments to:

1. Fix Minimum Wages: The Act mandates the payment of minimum wages to employees in scheduled employment. These wages may differ based on location, skill level, and industry.

2. Review and Revise Wages: Governments must review and revise minimum wages periodically to reflect changes in living costs.

3. Applicability: The Act covers employees in both the organized and unorganized sectors, including workers in agriculture, construction, and domestic work.

4. Penalties for Non-Compliance: Employers who fail to pay the prescribed minimum wages face legal penalties, ensuring accountability.

Objectives of the Act

The Act aims to:

1. Protect workers from exploitation by ensuring they receive wages sufficient to meet basic needs.

2. Reduce income inequality by setting a wage floor.

3. Promote economic stability by increasing workers' purchasing power.

Landmark Judgments on Minimum Wages

1. Bijay Cotton Mills Ltd. v. State of Ajmer (1955)

In this case, the Supreme Court upheld the validity of the Minimum Wages Act, rejecting the argument that it interfered with the employer’s right to contract. The Court emphasized that the Act aims to prevent labor exploitation and is in the interest of public welfare.

2. People’s Union for Democratic Rights v. Union of India (1982)

This case, commonly known as the "Asiad Workers Case," highlighted the plight of workers employed in constructing facilities for the Asian Games. The Supreme Court held that non-payment of minimum wages violates Article 23 of the Constitution, which prohibits forced labor.

3. Unichoyi v. State of Kerala (1961)

The Supreme Court ruled that fixing minimum wages does not violate the fundamental rights of employers under Article 19(1)(g) (right to practice any profession). It reaffirmed that the legislation aims to ensure social justice.

4. M.C. Mehta v. State of Tamil Nadu (1991)

In this case, concerning child labor, the Court directed employers to pay minimum wages. It mandated the creation of a fund for the education and rehabilitation of children employed in hazardous industries.

Challenges in Implementation

1. Informal Sector Coverage: A large portion of India’s workforce operates in the informal sector, where enforcement of minimum wage laws remains weak.

2. Wage Disparities: Variations in minimum wages across states and industries lead to inconsistencies and potential exploitation.

3. Lack of Awareness: Many workers, particularly in rural areas, are unaware of their rights under the Act.

4. Weak Enforcement Mechanisms: Limited resources and oversight often allow employers to evade compliance.

The Way Forward

To strengthen the implementation of the right to minimum wages, the following measures are crucial:

1. Awareness Campaigns: Educating workers about their rights and the provisions of the Minimum Wages Act.

2. Strengthened Monitoring: Enhancing enforcement mechanisms, including regular inspections and penalties for non-compliance.

3. Uniform Wage Structure: Working towards reducing disparities in minimum wages across states and sectors.

4. Technology Integration: Leveraging digital platforms for wage payment and monitoring compliance.

Conclusion

The Minimum Wages Act, of 1948, represents a vital commitment to protecting workers from economic exploitation and ensuring a dignified standard of living. Landmark judgments have further reinforced the importance of this right, establishing it as a key component of social and economic justice. However, achieving universal compliance requires concerted efforts by the government, employers, and civil society. By addressing implementation challenges and fostering awareness, India can uphold the spirit of the legislation and empower its workforce.

Understanding Employment Law: A Guide for Employers and Employees

Employment law is a crucial aspect of the workplace, shaping the relationships between employers and employees. It encompasses a wide range of legal issues and regulations, ensuring fair treatment, safety, and compliance. Whether you’re an employer or an employee, understanding employment law can help you navigate the complexities of the modern workplace. This blog will provide an overview of key concepts and common issues in employment law.

1. Employment Contracts

An employment contract is the foundation of the employer-employee relationship. It outlines the terms and conditions of employment, including job responsibilities, compensation, benefits, and termination procedures. Contracts can be written, oral, or implied, and they protect both parties by setting clear expectations.

Key Elements of an Employment Contract:

Job Title and Description: Clear definition of the role and responsibilities.

Compensation and Benefits: Details on salary, bonuses, health insurance, and other perks.

Work Hours and Location: Specified working hours and the location of the job.

Duration: Whether the employment is at-will, for a fixed term, or indefinite.

Termination Clauses: Conditions under which either party can terminate the contract.

2. Employee Rights

Employees are entitled to a range of rights and protections under employment law. These rights are designed to ensure fair treatment and a safe working environment.

Common Employee Rights:

Minimum Wage and Overtime: Laws set minimum wage rates and overtime pay requirements.

Discrimination and Harassment: Protection against discrimination based on race, gender, age, disability, and other protected characteristics. Employees also have the right to a workplace free from harassment.

Leave Entitlements: Rights to various types of leave, including sick leave, maternity/paternity leave, and family leave.

Health and Safety: Regulations to ensure a safe and healthy work environment.

Privacy: Protection of personal information and freedom from unwarranted surveillance.

3. Employer Responsibilities

Employers have to comply with employment laws and ensure their practices uphold the rights of their employees. Non-compliance can result in legal action, fines, and damage to reputation.

Key Employer Responsibilities:

Compliance with Wage Laws: Adhering to minimum wage and overtime regulations.

Non-Discrimination: Implementing policies that prevent discrimination and promote diversity and inclusion.

Health and Safety: Providing training and resources to maintain a safe workplace.

Accurate Record-Keeping: Maintaining accurate records of hours worked, wages paid, and other employment-related data.

Responding to Complaints: Establishing procedures for employees to report and address grievances promptly.

4. Common Employment Law Issues

Both employers and employees may encounter various issues that require legal intervention or guidance. Understanding these common issues can help in seeking the right solutions.

Common Issues Include:

Wrongful Termination: Claims that an employee was terminated in violation of the terms of the contract or employment law.

Discrimination Claims: Allegations of unfair treatment based on protected characteristics.

Wage and Hour Disputes: Conflicts over unpaid wages, overtime, or misclassification of employees.

Workplace Harassment: Issues involving harassment by colleagues, supervisors, or third parties.

Retaliation: Actions taken against employees for exercising their legal rights, such as reporting a violation.

5. Staying Informed and Compliant

Employment law is dynamic, with regulations evolving to address new challenges in the workplace. Both employers and employees must stay informed about current laws and best practices.

Tips for Staying Compliant:

Regular Training: Conduct training sessions on employment law and workplace policies.

Consult Legal Experts: Seek advice from employment law attorneys to navigate complex issues.

Stay Updated: Keep abreast of changes in employment law through reputable sources and professional organizations.

Develop Clear Policies: Create and maintain comprehensive workplace policies that reflect current laws and standards.

Conclusion

Understanding employment law is essential for fostering a fair and compliant workplace. By being aware of their rights and responsibilities, employers and employees can work together to create a positive and productive work environment. Whether drafting contracts, addressing grievances, or ensuring safety, knowledge of employment law empowers all parties to navigate the intricacies of the modern workplace effectively.

Navigating Retrenchment: Compliance and Risk Mitigation in Indian Employment Law.

Retrenchment, the termination of employees for reasons such as redundancy or economic downturn, is a challenging but sometimes necessary step for organizations to adapt to changing business environments. In India, retrenchment is governed by specific legal provisions aimed at protecting the rights of employees and ensuring fair treatment. In this article, we explore retrenchment under Indian law and strategies for management to mitigate risks and avoid litigation.

Understanding Retrenchment in Indian Law

Retrenchment in India is primarily regulated by the Industrial Disputes Act, of 1947, which outlines the conditions under which employers can retrench employees and the procedures they must follow:

Grounds for Retrenchment: Employers can retrench employees for reasons such as surplus manpower, closure of business operations, technological changes, or economic reasons. However, retrenchment must be a last resort after exploring alternatives such as redeployment, retraining, or offering voluntary retirement schemes.

Notice and Compensation: Employers must provide employees with a notice period or payment instead of notice before retrenchment, as specified in the Act or relevant employment contracts. Additionally, retrenched employees are entitled to compensation, which typically includes severance pay based on their length of service.

Consultation with Employees: Employers must engage in meaningful consultations with employees or their representatives before implementing retrenchment measures. This includes providing reasons for retrenchment, discussing alternatives, and considering feedback from affected employees.

Government Approval: In certain cases, employers may need to seek prior approval from government authorities, such as labor departments or industrial tribunals, before proceeding with retrenchment, especially in establishments with a specified threshold of employees.

Strategies for Risk Mitigation

To minimize the risk of litigation and ensure compliance with retrenchment regulations, management can adopt the following strategies:

Legal Compliance: Familiarize themselves with the provisions of the Industrial Disputes Act and other relevant labor laws governing retrenchment. Ensure that retrenchment decisions are made according to legal requirements, including notice periods, compensation calculations, and consultation procedures.

Documentation: Maintain comprehensive documentation of the retrenchment process, including records of consultations, notices served to employees, compensation calculations, and any communications with government authorities. Clear documentation is evidence of compliance and can help defend against potential legal challenges.

Transparency and Communication: Maintain transparency throughout the retrenchment process by communicating openly with employees about the reasons for retrenchment, available alternatives, and the criteria for selection. Encourage dialogue and address employee concerns to mitigate potential disputes.

Fair Selection Criteria: Develop objective criteria for selecting employees for retrenchment, such as performance evaluations, skills assessments, or length of service. Avoid discriminatory practices or biases in the selection process to minimize the risk of legal challenges based on unfair treatment.

Offer Support Services: Support retrenched employees, such as career counseling, job placement assistance, or access to training programs. Demonstrating a commitment to employee well-being can help mitigate negative repercussions and maintain positive employer-employee relations.

Conclusion

Retrenchment is a sensitive issue that requires careful consideration of legal requirements, employee rights, and organizational needs. By ensuring compliance with relevant labor laws, maintaining transparent communication, documenting the retrenchment process thoroughly, using fair selection criteria, and offering support services to affected employees, management can mitigate the risk of litigation and uphold fairness and integrity in the retrenchment process. Ultimately, prioritizing compliance, fairness, and empathy is crucial for successful retrenchment management under Indian law.

Termination by Cause: Mitigating Risks and Ensuring Compliance.

Terminating an employee for a cause—due to poor performance, misconduct, or violation of company policies—can be a complex and sensitive process for employers. While termination by cause is often necessary to maintain a productive and compliant workplace, it also carries inherent risks of legal challenges and litigation if not handled properly. In this article, we explore key considerations for employers when terminating employees for cause and strategies to mitigate risks effectively.

Understanding Termination by Cause

Termination by cause refers to the dismissal of an employee due to specific reasons, such as:

Poor Performance: Persistent failure to meet job expectations, achieve targets, or perform duties adequately despite warnings or performance improvement plans.

Misconduct: Violation of company policies, code of conduct, or ethical standards, including dishonesty, harassment, discrimination, theft, or insubordination.

Breach of Contract: Non-compliance with employment agreements, terms of employment, or contractual obligations, such as confidentiality agreements or non-compete clauses.

Key Considerations for Employers

When terminating employees for cause, employers must prioritize compliance with applicable labor laws, fairness, and due process. Here are essential considerations to mitigate risks and ensure legal compliance:

Documentation: Maintain thorough documentation of the employee's performance or misconduct issues, including performance evaluations, warning notices, disciplinary actions, and any relevant correspondence. Clear and detailed documentation serves as evidence to support the termination decision and defend against potential legal challenges.

Consistent Enforcement: Apply disciplinary policies and procedures consistently and fairly across all employees. Ensure termination decisions are based on objective criteria and not influenced by personal biases, favoritism, or discriminatory practices.

Due Process: Provide employees with notice of performance or conduct deficiencies, opportunities for improvement, and a reasonable chance to address concerns through performance improvement plans or corrective actions. Employees should be allowed to respond to allegations or provide their side of the story before making any termination decision.

Legal Review: Seek legal guidance or consult employment law experts to review termination decisions, assess compliance with labor laws, and evaluate potential legal risks. Legal counsel can provide valuable insights into the legal implications of termination by cause and help mitigate risks of litigation.

Conclusion

Termination by cause is a critical aspect of managing a workforce effectively, but it requires careful planning, documentation, and adherence to legal requirements to minimize risks and ensure compliance. By maintaining clear documentation, applying consistent enforcement of policies, providing due process to employees, seeking legal guidance, and offering fair severance packages when appropriate, employers can mitigate the risk of litigation and maintain positive employee relations even in challenging termination situations. Ultimately, prioritizing fairness, transparency, and compliance with labor laws is essential for successful termination by cause management.

Navigating Resignations: Managing Disputes Between Employers and Employees.

Resignation is common in the workplace, with employees choosing to move on for various reasons, such as career advancement, personal reasons, or dissatisfaction with their current role. While resignations are typically straightforward, disputes between employers and employees can arise, leading to potential legal challenges and strained relationships. In this article, we explore key aspects of resignation disputes and discuss strategies for effective management.

Understanding Resignation Disputes

Resignation disputes can arise due to various factors, including disagreements over notice periods, contractual obligations, severance pay, non-compete clauses, and post-employment restrictions. Common areas of contention between employers and employees include:

1. Notice Periods: Disputes may arise if an employee fails to provide the required notice period specified in their employment contract or company policy. Employers may seek to enforce notice periods to ensure a smooth transition, while employees may argue for flexibility due to personal or professional reasons.

2. Contractual Obligations: Employment contracts often include clauses related to confidentiality, intellectual property rights, non-solicitation, and non-compete agreements. Disputes can occur if employees violate these contractual obligations post-resignation, leading to legal action from employers.

3. Non-Compete Clauses: Employees subject to non-compete clauses may challenge the enforceability of such agreements, arguing that they are overly restrictive or not applicable based on their new employment circumstances. Employers may pursue legal action to enforce non-compete clauses to protect their business interests.

Strategies for Managing Resignation Disputes

To effectively manage resignation disputes and minimize legal risks, employers can adopt the following strategies:

1. Clear Communication: Maintain open and transparent communication with employees throughout the resignation process. Clearly articulate expectations regarding notice periods, contractual obligations, and post-employment restrictions to avoid misunderstandings.

2. Documented Policies and Procedures: Have clear policies and procedures in place regarding resignation processes, notice periods, severance pay, and post-employment obligations. Ensure that employees are aware of these policies and adhere to them consistently.

3. Seek Legal Guidance: Consult with legal experts or employment law specialists to review employment contracts, assess the enforceability of contractual clauses, and mitigate legal risks associated with resignation disputes. Legal guidance can help employers navigate complex legal issues and make informed decisions.

4. Mediation and Negotiation: In cases of disputes, explore mediation or negotiation as alternative dispute resolution methods. Encourage constructive dialogue between employers and employees to reach mutually acceptable resolutions and avoid escalating conflicts to litigation.

5. Documentation and Record-Keeping: Maintain thorough documentation of resignation-related communications, including resignation letters, emails, meeting minutes, and any agreements reached between parties. Documentation serves as valuable evidence in disputes and helps protect employers' interests.

Conclusion

Resignation disputes can be challenging for both employers and employees, requiring careful navigation and effective management. By understanding the key aspects of resignation disputes and implementing proactive strategies for resolution, employers can mitigate legal risks, preserve relationships, and ensure a smooth transition for departing employees. Open communication, adherence to policies and procedures, legal guidance, and a willingness to explore alternative dispute resolution methods are essential to successful resignation dispute management.

Employment law - Employment Policy Design.

Employment / HR policies guide employees and managers on handling various employment issues. They are important in practically and effectively implementing an organization’s HR strategy. Human resources policies provide the necessary structure many businesses need to sustain the company’s productivity and overall profitability. Our HR policy design services are responsible for reviewing existing policies, identifying gap areas, and designing policies, programs, and initiatives aligned to HR strategy, the Company’s Values, Vision, Business requirements, and the law of the land.

We design policies for the complete life cycle of employees in an organization. Covering areas from Talent Acquisition, Talent Management, Total Rewards, and Wellness. (Employee Benefits & Compensation Structuring, Employee Stock Options & Share Plans), Employee Relations, Talent Development, Health and Safety, Administration, Diversity and Inclusion, Code of Conduct, Employee Participation, Employee Separation policies (including VRS), Communication policies including social media, etc.

This includes the following Stages :

• HR Policy Current Stage Audit
• Risk and Gap Identification
• Identify Policies required based on business requirements and the law of the land.
• Advisory on identified policies
• Provide Required Support w.r.t Industry Insights (without client details) and Best Practices
• Drafting, Implementation, Rollout, and Communication plan support.

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.

Employment Law - Discrimination Related to Indian Laws

Discrimination in remuneration, whether during recruitment or employment, is prohibited under several Indian laws that aim to ensure equality and protect the rights of different groups. Here's an elaboration on each of the mentioned acts:

Equal Remuneration Act, 1976:

The Equal Remuneration Act of 1976 ensures that men and women receive equal pay for equal work. It prohibits discrimination in remuneration on the grounds of gender. This means that employers are required to provide the same remuneration to both male and female employees if they perform the same or similar work.

Rights of Persons with Disabilities Act, 2016 (Disabilities Act):

The Disabilities Act aims to protect the rights of persons with disabilities. It prohibits discrimination on the grounds of disability in various aspects, including employment. Employers cannot discriminate against individuals with disabilities in terms of remuneration or any other employment-related benefits.

Maternity Benefit Act:

The Maternity Benefit Act prohibits discrimination against women on the basis of maternity status. This act ensures that women employees are not denied employment opportunities or remuneration benefits due to pregnancy or maternity leave. Employers are required to provide maternity benefits to eligible female employees.

Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (HIV/AIDS) Act, 2017:

This act prohibits discrimination against individuals with HIV and/or AIDS. Employers cannot discriminate in terms of remuneration or employment opportunities based on an individual's HIV status. Furthermore, it forbids the requirement for HIV testing as a precondition for employment.

Transgender Persons (Protection of Rights) Act, 2019:

This act seeks to protect the rights of transgender persons. It prohibits discrimination in employment that results in unfair treatment, denial of employment, or termination solely on the basis of an individual being transgender. Employers are required to provide equal employment opportunities to transgender individuals, including fair remuneration.

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

While this act primarily addresses sexual harassment against women in the workplace, it also indirectly impacts remuneration. Discrimination in remuneration on the grounds of gender can be considered a form of harassment. The PoSH Act emphasizes the creation of a safe and non-discriminatory work environment for women.

It is essential for employers to comply with these acts to ensure that they do not engage in discriminatory practices related to remuneration. Violations of these acts can lead to legal consequences, including fines and penalties. Employees who believe they have been subjected to discrimination can file complaints with the appropriate authorities and seek redressal under the relevant legislation.

In summary, these Indian laws collectively work to prohibit discrimination in remuneration on various grounds, including gender, disability, maternity status, HIV/AIDS status, and transgender identity, thereby promoting equality and fairness in the workplace

Employment Law - Steps for if your employer is not providing you with a relieving letter

If your employer is not providing you with a relieving letter, it can be concerning, as this document is often necessary for various purposes, including future job applications. Here are steps you can take to address the situation:

1. Communicate Clearly: Initiate communication with your former employer in a polite and professional manner. Send an email or letter explaining your request for a relieving letter and the importance of having it for your future endeavors.

2. Follow Company Procedures: Review your employment contract or company policies to see if there are any specific procedures or timelines for obtaining a relieving letter. Ensure that you have complied with these requirements.

3. Contact HR: Reach out to your company's HR department or the relevant HR personnel responsible for handling employee records and documentation. Request their assistance in obtaining the relieving letter.

4. Provide Notice: If your company has any outstanding issues with you, such as notice period completion, dues, or return of company property, address these issues promptly. Clearing any outstanding matters may facilitate the issuance of the relieving letter.

5. Mention Legal Rights: Politely remind your employer that, in many jurisdictions, employees have the legal right to receive certain documents upon termination, including relieving letters. Refer to any applicable labor laws or regulations that support your request.

6. Escalate Gradually: If your initial attempts to obtain the relieving letter do not yield results, consider escalating the matter within the organization. Speak to higher-level managers or supervisors who may have the authority to issue the letter.

7. Consult Legal Advice: If your employer continues to withhold the relieving letter without valid reasons, consider seeking legal advice. A labor attorney can help you understand your rights and may be able to send a legal notice to your former employer requesting the letter's issuance.

8. Documentation: Keep records of all your communications and interactions related to the request for the relieving letter. This includes emails, letters, and notes from any conversations. This documentation can be valuable if you need to pursue legal action.

9. Alternative References: In the absence of a relieving letter, you can use alternative references, such as colleagues, supervisors, or other documents (like appointment letters or payslips), to demonstrate your work experience and employment history to potential future employers.

10. Seek External Mediation: Depending on your jurisdiction, you may have access to labor boards or government agencies that can mediate disputes between employees and employers. Explore this option if necessary.

Remember that the specific steps you take may vary depending on your location and the circumstances of your employment. It's crucial to remain professional and patient throughout the process while advocating for your rights. Consulting with a legal expert is advisable if the situation remains unresolved or becomes contentious.

What are key aspects of compliance for ESIC for employer - Employment Law

The Employees' State Insurance Corporation (ESIC) is a social security organization in India that provides medical, cash, and various other benefits to employees and their families. Employers are responsible for ensuring compliance with ESIC regulations. Here are the key aspects of compliance for employers with regard to ESIC:

1. Registration:

• Employers with a certain threshold of employees are required to register under ESIC. Registration should be done within 15 days of becoming liable to register. The employer is responsible for registering both themselves and their employees.

2. Contribution:

• Employers are required to deduct a certain percentage of the employee's salary (currently 1.75% of the wages) and contribute an equivalent amount to ESIC. Employees also contribute a percentage of their wages (currently 0.75%). These contributions must be deposited on a monthly basis.

3. Coverage:

• Employers should ensure that all eligible employees are covered under ESIC. This includes all employees earning below a specified wage threshold (as of my knowledge cutoff in September 2021, was Rs. 21,000 per month).

4. Record Maintenance:

• Employers are required to maintain records of employees, including their wages, contributions, and other relevant details. Records should be kept for a specific period (usually five years) and should be available for inspection when required.

5. Filing and Documentation:

• Employers must file monthly and annual returns and other required documentation with ESIC authorities. These filings include details of contributions, new employees, and other relevant information.

6. Employee Communication:

• Employers should inform their employees about ESIC coverage, contributions, and benefits. This ensures that employees are aware of their rights and entitlements.

7. Timely Payments:

• Contributions to ESIC should be made on time. Delayed payments may result in penalties and interest charges.

8. Compliance Audits:

• Employers should be prepared for compliance audits conducted by ESIC authorities. Ensuring accurate record-keeping and timely filings can help during such audits.

9. Changes in Employee Status:

• Employers should promptly inform ESIC about any changes in the status of employees, including new hires, resignations, terminations, or changes in wages.

10. Legal Compliance:

• Employers should stay updated with any changes in ESIC rules and regulations to ensure ongoing compliance with the law.

11. Penalties for Non-Compliance:

• Non-compliance with ESIC regulations can result in penalties, fines, and legal actions. It's essential for employers to take their ESIC obligations seriously.

12. ESIC Inspections:

• Employers should cooperate with ESIC inspections and provide the necessary information and documentation when requested by ESIC authorities.

13. Dispute Resolution:

• In case of any disputes or grievances related to ESIC, employers should follow the established dispute resolution mechanisms.

Please note that ESIC regulations may have evolved or changed, so it's advisable to refer to the latest guidelines and notifications from ESIC for the most up-to-date information.

Important Legal Aspects for Employee and Employer under the payment of gratuity act India

The Provision of Gratuity Act is a contractual reward given to workers who have worked for at least five years on an ongoing basis. Based on the length of his complete employment, which is a lump sum charged to an employee. The gratuity payment is payable to an employee following cessation of employment (either by dismissal, death, retirement, or termination, etc.) on the basis of the calculation of the last drawn salary. It is applicable where ten or more persons are employed or were employed, on any day of the preceding twelve-month

An employee who has worked for no less than five years shall be entitled to gratuity for his retirement or retirement or resignation, or for his death or injury. Where the cessation of the employment of any person is due to death or injury, a pre-requisite of completion of continuous service of five years shall not be required. In the event of an employee's death, the gratuity owed to him shall be paid to his nominee or, in the absence of that appointment, to his heirs.

The gratuity shall be due on termination of employment to an employee after undertaking continuous service for no less than five years. A person shall be said to be in continuous employment for a span of time whether he has been in continuous employment for that period which requires activities that may be disrupted due to sickness, injury, leave, a departure from duty without leave, lay-off, strike or lock-out or termination of employment not due to the negligence of the employee, whether such continuous or interrupted service has been done or not.

Gratuity is calculated at 15 days' wages last drawn by the employee for each completed year of service. The monthly Basic Salary is divided by 26 and multiplied by 15. In computing a completed year of service the period in excess of six months shall be taken as a full year. 

Gratuity = Monthly salary / 26 x 15 days x No. of years of service. 

The maximum amount of gratuity payable under the Act is Rs.20 Lacs.

The Payment of Gratuity (Amendment) Act, 1987 has prescribed provisions for compulsory insurance for the employer’s liability for payment towards the gratuity under the Act from LIC under the LIC Act,1956, or any other prescribed Insurer.

Each employee who has completed one year of service is required to make a nomination for the purposes of gratuity in case of his death. There can be more than one nominee. (Form F). Nominees may be changed at any time by the employee, by giving written notice to the employer. (Form H). If no nomination has been made, it shall be paid to the legal heirs of the deceased employee.

In the execution of any decree or order of any civil, income, or criminal case, no gratuity due under the Act shall be liable for attachment. However, if the employee has agreed to a deduction as a gratuity from the balance owed, the amount would be restored.

Employment (HR) Policies/Practices and Compliance Audit

Employment (HR) Policies/Practices and Compliance Audit 

KEY OUTCOMES

• HR-related decisions were taken through a decision-making matrix and thus consistently applied across the business, saving management time and reducing ambiguity when communicating with the rest of the team.

• The HR Audit document became the list of projects and initiatives that were scheduled to be completed in order of importance to the business to ensure legal and best practice compliance.

• HR system was sourced, handbooks and policies were introduced, employment contracts were updated and rolled out, governance system was developed, and all I relations issues were resolved.

• We identified a potential Claim that could be raised from the PF department amounting to 25 crores (approx.) and a risk mitigation and remediation

plan was implemented

The Company

Medium-sized IT /Software service provider.

The Problem

The business had recently experienced growth, which necessitated the hiring of a large number of additional staff members quickly. The company's current

Procedures could not support the growth, which led to many HR Area-related problems/ challenges.

The business lacked the in-house expertise necessary to recognize /identify and implement

the improvements that were needed for the HR practices and procedures.

Our Approach

To better understand the business's goals in the short, medium, and long terms as well as the existing HR processes, we spoke with

the senior management team.

We looked at the problems they had with HR practices & policies due to which leadership was required to spend a huge amount of time handling/managing People and process issues.

Actions

• We identified the essential processes and policies that were required as a minimum and put these processes in place immediately to ensure smooth functioning &legal compliance and resolve the current issues

• Developed a detailed report highlighting the good areas and the areas of concern, including longer-term considerations to ensure that the business achieved its goals.

 The report used a traffic light system:

1. Green to identify areas that were fit for the purpose

2. Amber indicated areas that would benefit the business if these actions took place

3. Red highlighted areas that required immediate attention.

Property Lawyer in India

 

In India, real estate investing is regarded a safe and secure investment, but it may also be extremely risky if you don’t understand the Indian property law, rules, and regulations. Property law in India is complicated by the fact that several state governments and the federal govt all have their own land and property laws. Due to insufficient documentation, property verification, payment transaction structure, and license documents, real estate transactions in India can be complicated. We are regarded as one of India’s leading real estate law firms.

We assist clients by examining property chain documentation, and property title deeds, calculating risk factors, checking litigation issues, and property registration services at sub-registrar offices. Our experienced lawyers are experts in drafting a variety of legal documents, including builder-buyer agreements,, sale deeds, general and special powers of attorney, lease deeds, and other contract-related forms.

Our office’s experienced lawyers provide comprehensive legal services for property matters. Our Lawyers resolve issues such as illegitimate possession, ancestral property settlement, siblings’ property disputes, harassment by builders, and family disputes over common property, land, and farms.

Our knowledgeable Real Estate Lawyers can help you with harassment cases involving brokers, property agents, landlords, and tenants.

Employment Law Training in India

 

Employment Law Training

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

Such as

Basic labour 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.

Startup and Contract Management in India

Startup and Contract Management

 

Contracts are the foundation of any business. A contract is necessary to ensure the successful completion of the task and is an excellent mechanism to secure redress if the work is not completed. For business owners, having a basic understanding of the different facets of contract administration can be useful.

According to the Indian Contract Act, of 1872, all agreements are considered contracts if they are freely entered into by parties who are legally able to do so, are formed for a legal consideration with a legal purpose, and are not specifically stated to be void.

Employee contracts are among the most important things to consider when beginning a business. In the beginning, founders frequently worked together with their own circle of reliable friends. While this ensures a certain level of ease and efficiency for business operations, it is always advisable to outline and formalize employee contracts with information about salary, the scope of work, and stock options (if any) with even your first few employees. Startups can lower their risks later on by having this clarity from the start.

Startups frequently employ contract employees and suppliers in their early stages of operation, and having a strong contract management system will guarantee that the necessary safeguards are in place to ensure that necessary work is completed on schedule.

NDAs are a crucial contract that entrepreneurs may find advantageous to have. Startups frequently succeed in a crowded market with intense competition, and they regularly debate ideas with a wide range of people, including possible investors, employees, and customers.

Although this is crucial for the expansion of the company, it exposes fledgling businesses to dangers including the theft of ideas and other confidential business data. Ideas that may have been offered in good faith could be misused and work against the interests of the company.

Nondisclosure agreements, also known as NDAs, must be created and used by startups when sharing sensitive company information with anyone outside the organization to prevent such situations.