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Clarifications on lock down impact on employment issues with employer liability

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Anil kaushik - Chief Editor, Business manager HR magazine and Corp. advisor HR & Labour Laws

26-Apr-2020

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This scheme is not available for ESI. It is only foe EPF. It applies to establishments and factories including contractor firms who are already registered with EPF having their independent PF code.

What are the operational guidelines to avail PF contribution benefit provided by the Govt. for three months? Any similar relief also given for ESI as well?

 

Ans: This scheme is not available for ESI. It is only foe EPF. It applies to establishments and factories including contractor firms who are already registered with EPF having their independent PF code. Establishment should have up to 100 employees and out of that 90 % employees should be drawing less than 15k.  It is applicable for the wages month of March, April and may2020. To avail the benefit employees UAN must be seeded /linked with aadhar. Employee should be a member of EPF and EPS whose contributions are received for any period during last six months means from sep. to Feb. Such contribution should be on monthly wage of less than 15 K. Employee who is not a member of EPs due to attaining the age of 58 years but member of EPF, is also entitled to this benefit.

 

Employer need not to deduct employees share nor deposit his contribution for these three months. On creating ECR, it will show differently the amount to be paid by employer and Govt. Employer has to pay employee and employer contribution as usual only in case of employees drawing more than 15k. The 24% amount or remaining employees will be directly credited by Govt to their respective account. However, employer is required to pay EDLI, and adm. Charges in respect of all employees. This way employee take home pay will increase for these three months. Only one challan and ECR is to be filed. No separate challan and ECR to be filed for employees drawing less than 15 k and more than 15k.

 

What legal actions can be taken if a resigned employee don’t join back after Lockdown and do not complete his notice period?

 

Ans: If an employee has resigned and his notice period falls in between lock down period, such lock down period will be treated as served notice period. However for the remaining period he has to serve. If he does not complete the remaining period, you can deduct the amount of such period as per terms of employment and company rules/policy.

 

In current situation how organizations can reduces manpower?  Are there any guidelines for alternate shift duty working?

 

Ans: Until lockdown prevails, establishments and factories have to abide by the govt. directives. Reduction in manpower or salary is prohibited during this period up to 3rd May. Next new order will decide the future course of action. Yes, having the same manpower, you can arrange shifts as per your requirements provided wages are not reduced. In case there is no such further orders restraining  reduction of manpower and wages, you can very well take recourse of lay off or retrenchment or VRS in compliance with provisions of I.D.Act and Your certified standing orders and terms of employment  or agreement if any. You can restructure your manpower by giving 21 days notice to all workmen as per Sec. 9A of I.D.Act but all this after 3rd May. Raj. Govt. has already issued order for allowing exempted and essential services industries to work for 12 hours and run two shifts only.  Similar order is also expected from other states and central Govt. Guj. Govt. has also issued order allowing industries in general to work in 12 hours shift and extra four hours will not be treated as OT.  That means employer needs to pay only in proportion to extra hours at normal rates.

 

What are the ways to confirm Authentication of Notification?

 

Ans; You can go the different central and state Govt. or labour deptt. or health department or home dept. websites for checking the authenticity of notifications. Now a days apart from corona pandemic, one more disease is there and that is infodemic spread by WhatsApp university and social media. Lots of fake messages and orders / circulars/opinions/clarifications are floating around. Kindly be cautious. Don’t rely and act upon unless verified.

 

When employer is not financially capable of paying salary /wages for lock done period, can minimum wages be paid?

 

Ans:No!  Salary cannot be reduced for the period of lock down. It is to be paid in full. Various state Govts have issued orders based on directives from central Govt. about not reducing the salary. Kindly check your state govt. orders. No state has allowed for paying only minimum wages in place of his full salary.

 

If a company is into essential services & some employee denied attending work, can he be marked absent during lockdown? Can employer take disciplinary action?  Whether it can be during lock down period or after that?

 

Ans: If the industry is exempted during lock down, and employee denies to work or remains absent without any justifiable reasons, he can be put to disciplinary action as per terms of employment and certified standing orders/ company service rules. It would be better for employer to take action against such erring employee after lock down is lifted otherwise he may have many excuses of making him present for disciplinary action.

 

Lay off is not allowed during lockdown period as per govt guidelines. Can company process Lay Off after lockdown period based on updated production plan considering current situations? What process they need to do?

 

Ans: Yes. After lock down is lifted or next new order of extending lockdown does not have any such restrictions, employer can very well start working lay off. Kindly check under which chapter of I.D.Act your establishment falls. Whether it is V-A or V-B. If you have less than 100 workmen, you need not to seek prior permission from Govt. Many states have increased this limit to 300. Kindly check about your state notification.  Then you have to comply with provisions of Chapter V-A, otherwise you have to apply in prescribed format to Govt. for seeking approval for lay off. Your reasons have to be strong enough for seeking approval.

 

What Cost Cutting measures can be taken legally to have WIN WIN situation for Employer & Employee both?

 

 Ans. This lock down must have given enough indications for organisations to reorganise its manpower, restructure them, and communicate effectively with enough transparency with workers. Front line officers and managers about real financial condition of company and involve them in decision making process affecting their livelihood/ financial aspect. It would always be better to have less instead of having nothing.

 You can identify unnecessary expenses and curtail them, change working habits to save cost, like waste of electricity, waste of food items, unnecessary transport expenses, etc.

 You can also temporarily reduce certain allowances /perks/ expenses to bring back business normal. There must be an environment of ownership in employees to support their organisation during these tough times.

 

Can Leave Encashment amount be adjusted against lockdown period as per leave balance available when it is part of CTC?

 

Ans: No! Unless voluntarily offered and consented by employee.

 

ESI payment can be delayed as per govt guideline till 15th May for March, 2020, and 15 june for April. Any specific process to follow the facility?

 

 Ans: you go to their website and check. No specific process to follow. Simply deposit during this extended time . You will be no be charged for interest and penalty.

 

If few employees are working from Home and few are not, can management treat them differently?

 

Ans: In respect of salary, you can’t differentiate negatively. Yes, to motivate and encourage, employees working from home during this period may be considered for additional benefits in future  after appraisal while granting increments but it all depends on nature of job. If an employee profile is such that he has nothing to do from home, what is his fault in this? Question comes for consideration is who is willing to contribute and who is not?

 

Even after consent while implementing Extra Work for adjustment of Lockdown period wages, if any employee file complaint again an organisation, what steps an organisation can take against the same?

 

Ans: Consent by workman to do extra work hours against the salary paid to him during lock down will be against the provisions of factories act and payment of wages act. Such consent against the law will not have any bearing. If complaint is filed, employer has to pay of extra work. Yes, employee can be encouraged to increase productivity working in same 8 hours duty without any additional incentive.  Such kind of enhancing productivity/ production will not be against the law.

 

 

For piece rated employees, No Work No Pay can be processed after lockdown period if there is no work? Any specific process need to follow for the same?

 

 

Ans: It depends on the terms of employment of workman. If he is working regularly, coming everyday but his mode of payment is piece rate, he can’t be denied at least minimum wages. Because it is not he who has refused to work, it is employer who has not been able to five him work. Either he should be laid off or retrenched as per legal compliance.

 

Lockdown period started from 25th March. Many Cos had declared OFF since 20th or 21st.Can they deduct pay for days OFF before lockdown? Any specific process need to follow for the same?

 

Ans: unable to understand, what kind of OFF is declared by company? Is it is paid off/ Is it lay off? Is it lock out?  Or is it simple shut down without pay. There is no provision in I. D. Act to declare off without pay.  This is a practice in many auto companies to have annual or six monthly shut down for few days where either it is fully paid or 50:50. Employee part is adjusted against their leaves. But I don’t think   you will be able to deduct wages for lockdown period because it is said in order that workers will be deemed on duty. Kindly check your state Govt. order in this respect.

 

After lockdown, if any employee puts resign or get absconded, can company recover lockdown period payment?

 

Ans; No! Such amount of wages paid during lock down period cannot be adjusted.

 

What are the legal obligations on organisations for cases related to resignations and new joining? Is it mandatory to extend notice period or to take joining as per offer / appointment letter?

 

 Ans: It is all according to your terms of employment. As already explained, Notice period falling in between lockdown period will be treated as served.  In case of new joining, either you can extend their joining or defer  or  cancel.  The decision has to be as per your company policy but remember   your any such decision may have an effect on your employer brand image. So take decision cautiously.

 

What legal action can be initiated by employees in case they are forced to resign or given layoff during or immediately after the lock down?

 

Ans: if any such workman is forced to resign during lock down period, a complaint can be given to district magistrate. An FIR can be filed against such employer under DMA provisions for prosecution. If it happens after lock down period, industrial dispute can be raised before labour dept. authority.

 

Can organisation direct employees to apply their personal leaves if they are not given / not able to do work from home?

 

Ans: Not unilaterally.

 

What steps should be taken to convince Permanent Workers if the pay cut decision is taken?

Ans: Effective communication is the key in such matters to convince workers and inspire/ encourage them to voluntarily offer to have pay cut. You can use informal group chat to build environment, change worker thought process about to choose one- whether the temp. Pay cut permanent job loss. Influential managers/ front line officers who have enough command on workers can be used for this counselling. HR can play a big role in it through positive workers to start such discussion among workers and sell management idea.

 

For some agreement/contract for Technical Services like IT, Software, Maintenance, Contract Labour, need to pay for lockdown period? If service taken for few hours, can pay proportionately based on working hours rather than per day charge?

 

Ans: It is to be paid as terms of contract. If the contract is of AMC  and non exclusive and such persons are not working regularly in the company and come only on call, they can be paid as per their work service and not on hourly basis. If they are regularly employed for your company only, then no reduction in pay.

 

If task are allotted one day prior to work day through email, & the work done by an employee is 40-60% only. Can we mark absent or half day based on task completed or to mark full day present?

 

Ans: Again,Pl. check your terms of employment. Is he employed on task basis? Has he been paid proportionately earlier also? What is his mode of payment? Finding out these facts will answer your question.  If he is present full day, he cannot be marked absent. Yes disciplinary caution can be taken against him for negligence and not doing the work as instructed or refusal to work.

 

After lockdown period, for cost reduction, can a company process Pay Cut in percentage for all employees (slab wise) / lay off / LWP for different employees based on work schedule so burden can be diverted for survival of all / Week Off Day addition e.g. Sat & Sun both in place of Sunday only (Saturday with Pay Cut)? How to process legally?

 

 Ans. After lock down, in normal working, ID Act would be applicable. Sec. 9-A prohibits employer to effect any change in service condition s that affects adversely to workers without giving them 21 days notice. So Pl. make out a case, rational proposal, inform affected individually with 21 days notice and implement. It will certainly be an industrial dispute. Workers may challenge your pay cuts. You should be ready with sounding and reasonable facts before the court/ industrial tribunal to establish your genuineness and reasonability.

 

Can process any Cost Cutting method with Consent sign of all employees with having one or two witnesses? What precautions to take while doing the same?

 

Ans: after lock down, with consent of workers individually or collectively through an agreement, you can do this. Such agreement should also be registered with concerned labour dept. under sec.18 (1) of I.D. Act.

 

Payment of Leave Encashment can be delayed considering lockdown period & payment for lockdown period?

 

Ans: There is no provision either under factories Act or shops/commercial establishment act of leave encashment while in service. It is to be done only when workman/employee leaves the employment. So you can very well delay the payment of leave encashment during this period.

 

If co process pay cut after lockdown period for few months, can force employees to work for full time or can employees ask to work less hours accordingly?

 

Ans: Cannot force any employee to do extra work or less work to adjust lockdown payment unilaterally. Can be done with mutual consent by amending terms of employment accordingly.