The employer is under a legal obligation to make the workplace comfortable, safe, and employee-friendly. All employees are entitled to certain rights and duties during their period of employment; the Employment Law states that the rights of employees are directly proportional to the employer's; these rights ensure employee protection from unwarranted discrimination based on gender, age, race, caste, or religion.
It is eminent to learn about employee rights in India as it assures the prevention of discrimination. The employment laws in India have laid down multiple provisions to safeguard the employee's interest. Employees are entitled to the right to privacy, fair remuneration, paid leaves, and financial perquisites. The legal rights of an employee are comprehensively explained as follows.
- Employment Agreement
- Basic Rights - Health & Safety
- Minimum Wage
- Regular Salary and Bonus
- Maternity benefits
- Notice Period
- Working Hours/ Overtime
- Right to complain
- Equal Pay
- Weekly off
- Gratuity and Provident Fund
- Protection from Sexual Harassment
1) Employment Agreement
Under the Employment Law, all employees are entitled to get an employment agreement specifying the date they should join the company. The employment agreement aims to clarify the designation of the employee, the number of hours he's supposed to work, expectations the employer has of the employee, what constitutes a conflict or dispute, what needs to be done when a dispute arises, the financial perquisites employee is entitled to get during his course of employment and the various leaves employee can take.
The purpose of the employment law is to safeguard both employer and employee interests by specifying the obligations and duties of the former and the latter to prevent any conflict in the future regarding liabilities. The agreement's purpose is to clarify the employer and the employee their contractual obligations, duties towards each other, remedies if one fails to fulfill his duty, legal consequences for the omission of duties, etc. It is essential to secure the said agreement throughout the employment and even later if a conflict, dispute, or claim arises.
2) Basic Rights - Health & Safety
It is essential to learn about relevant acts that ensure your basic rights to learn about employee rights. According to the Factories Act, of 1948, all employees are entitled to a get basic rights to health and safety at the workplace as part of a sound and viable working environment, no matter what kind of work it is.
The employer is responsible for ensuring his employees get basic amenities. In workplaces like construction or mining sites, proper safety measures must be taken, hazardous equipment must be used under expert supervision, and no children under 14 must be allowed to work.
Failure to provide a safe and healthy environment because an employee suffers injury would make the employer liable to pay compensation as regulated under the Employees Compensation Act, of 1923. The employers' basic amenities are supposed to provide their employees including a hygienic work environment, clean drinking water, proper disposal of waste, sanitized restrooms, room for ventilation, sufficient lighting, etc.
3) Minimum Wage
According to the Minimum Wages Act, of 1948, every employee is entitled to get a minimum wage sufficient to allow the person to sustain his lifestyle, availing the essential amenities. Wages given below the minimum wage are a blatant violation of Article 23 of the Constitution. Any person forced by his employer to work under the minimum wage comes under forced labor employer is liable for legal consequences. According to the official document for The Minimum
Wages Act, 1948, different minimum wages are fixed for:
- Different kinds of employment
- Different classes of work under the same kind of employment
- Adults/ adolescents/ children, and apprentices
- Different localities
Central and state governments can fix the minimum wage according to the following factors:
- Cost of living
- Type of work
- Working hours
- How much the employer can pay
4) Regular Salary and Bonus
There has to be equal pay for equal work irrespective of one's gender according to the Equal Remuneration Act, 1976. According to the Payment of Wages Act, of 1936, an employee must be paid his remuneration in a timely fashion. On failure of payment, the employee can file a civil suit or approach the Labour Commissioner.
The Payment of Bonus Act, of 1965 states that any factory or organization which is five years old and employs 20 or more employees in any accounting year is legally obligated to pay a bonus to its employees. any employee who gets a salary of Rs. 21,000/- or less per month and who has worked more than 30 days in any accounting year is eligible to get a bonus.
There are two criteria by which an employee can get a bonus:
1) Profit made by the company that year
2) There's an agreement between the employer and employee regarding payment of bonus dependent upon the employee's productivity.
The leave policy has to be framed following the State legislation and rules. Generally, each state provides at least seven holidays for national and state festivals. It is mandatory to grant leave to employees on the three national holidays of the country, which are Republic Day (Jan 26), Independence Day (Aug 15), and Gandhi Jayanti (Oct 2). Other national and festival holidays are at the sole discretion of the company.
Apart from national leaves, employees are entitled to get other leaves which include:
1) Casual leave
These leaves are saved for unforeseen circumstances/events when an employee may have to attend to some exigent matter. Usually, a company grants up to 3 days of casual leaves per month.
2) Privilege leaves
These leaves are carried over from the previous years and enjoyed by the employee in the current or upcoming years. Privilege leaves can be extended up to three years. These can also be redeemed in place of sick leaves if an employee has used all of his sick leaves. If an employee has balance privilege leaves left while leaving the job, then these leaves can be encashed.
3) Compensatory leave
These leaves can be taken by the employee if he/she works on official off days.
4) Leave without pay
If an employee does not have any leaves left in his balance, then he can take a leave, but his wages for that day will be deducted from the monthly salary. A paid leave can be granted to the employee at the discretion of the management authority.
5) Maternity leave
A female employee has a right to get maternity/pregnancy leave for 26 weeks (in the case of women having less than two surviving children). This leave can be availed during pregnancy and/or after the delivery. Maternity leave can also be taken if complications arise during pregnancy, premature birth, miscarriage, or medical termination of pregnancy.
As per the Maternity Benefit (Amendment) Act 2017, female workers in an organization are entitled to a maximum of 12 weeks (84 days) of maternity leave.
The leaves can be divided into a post and pre-delivery leaves.
- 6 weeks post-delivery
- 6 weeks pre-delivery
The Maternity Benefit (Amendment) Act 2017, was initially passed by the Rajya Sabha in August 2016 and was later also passed by the Lok Sabha in March 2017.
In severe cases, where there is medical termination of pregnancy or miscarriage, the employee is entitled to six weeks of paid maternity leave. In cases where there are complications related to pregnancy, employees are entitled to one additional month of paid leaves. The complications can be as follows:
- Complicated delivery
- Premature birth
- Tubectomy operation (two weeks’ leave, immediately from the date of the tubectomy operation)
- Critical illness post-maternity
Maternity leaves for government employees:
Female government employees are entitled to 180 days of paid leaves for the birth of two children.
Maternity leaves for private-sector employees:
Female employees in the private sector have to ensure the maternity leave policy with their company’s HR team. Leaves and benefits may vary for different companies in the private sector.
Maternity Leaves: What are the rights of a mother?
- Female employees cannot be asked to work for six weeks immediately after the delivery
- Every female employee has the right to be entitled to maternity benefits with wages
- The employee is entitled to maternity benefits if she has worked with the employer for a period of not less than one hundred and sixty days in the twelve months immediately after the date of her expected delivery
- Female employees will not do work that can harm the child during pregnancy
Maternity Leaves: What are the rights of a father?
Most state governments and federal entitle male employees to a fortnight’s paternity leave, at the time, or within six months after the birth of the child.
According to the Paternity Benefit Bill, 2017, a male employee is entitled to 15 days of paid leaves out of which, 7 days can be availed after the expected date of pregnancy. The leaves can be availed within 3 months from the date of delivery of the child.
India's federal and most state governments allow married male employees to take a fortnight's leave at the time of, or within six months after, the birth of a child.
6) Gratuity and Provident Fund
The Payment of Gratuity Act, of 1972 explains gratuity as a retirement benefit paid to an employee at the time of retirement, termination, resignation, or employee death. It is paid to employees who have completed at least five years of continuous service. If the employer refuses to pay the gratuity amount to the employee, he can consult employment lawyers to take legal action.
On the other hand, the provident fund is a retirement and savings scheme. The Employees Provident Fund Organization of India (EPFO) manages provident funds for all employees, ensuring they receive a salary in India. According to the Employees' Provident Funds & Miscellaneous Provisions Act, 1952, employees have the option to keep a part of their salary invested in EPF, which the employer transfers straight into their PF accounts.
7) Protection from Sexual Harassment
Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 safeguards women from sexual harassment in the workplace. The Act specifies that if an organization has ten or more employees, there has to be an Internal Complaints Committee established to address cases of sexual harassment.
This committee is mandatory to be made at all branches and units of an organization, and the committee should include:
- A Woman who is employed at the senior level as Presiding Officer.
- Not more than two other employees who have appropriate legal and/or social knowledge for the cause of women's safety.
- A person belonging to a non-governmental organization (NGO) committed to the cause of women or familiar with sexual harassment issues.
The list of the offenses as described in the official document of 'Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013' include:
- Physical contact and advance
- A demand or request for sexual favors
- Making unsolicited sexually colored remarks
- Showing pornography through coercion
- Any other unwarranted physical, verbal, or non-verbal conduct of sexual nature
According to Section 354 of the Indian Penal Code 1860, if an accused of sexual harassment is convicted, he is punishable with up to three years of imprisonment with or without a fine. In this manner, the employees are entitled to certain rights, which are also the employer's duties. Apart from the aforementioned rights, the employees are also entitled to get prior notice before termination, probation rights, adequate payment on overtime, etc. Know more about sexual harassment in the workplace
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- Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013
- Maternity Benefit Act in 1961.
- Paternity Benefit Bill, 2017
- Factories Act, 1948