Jun 19,2019 | 15 min read

#AMA- Ask Me Anything On Employment Laws By Advocate Ashima Puri

Good afternoon everybody this is Advocate Ashima Puri. I have been practicing for more than eleven years and my core fields involve civil, corporate and employment laws and today I will be dealing with a few questions involving employment laws.

 

Ques 1. What is the Difference between independent contractor and an employee?

Employees are paid salaries either on hourly or commission basis or a combination of both. So employees are taxed when being paid a salary. They are taxed by the employers at the source only. So we call it TDS- Tax deduction at source. If someone is working for a business as an independent contractor, I am not under any kind of obligation to withhold the federal or State Taxes at source. I am also not required to make any payment of the State Taxes, which otherwise I'm required to do in case of employees. So this is the basic difference.

Ques 2. Is business required to provide disability insurance coverage for its employees?

Now, the employees may choose to offer disability benefits to the employees who are out of work because of an accident or illness. Most importantly the illness or injury does not have to be work related. Sometimes the illness could be long term or short term and there are two different policies which are being generalized on the basis of long term and short term. The short term policies are private policies that can be bought for the employees by an employer and are designed to provide the income to employees who become disabled due to sickness or an accident or are unable to work after initial waiting period which is generally one to two weeks. However, in case of long term disability policies, long term disability policies cover employees who become disabled and are unable to work for longer period, for example, six months or longer.

In most of the plans, benefits are paid for the duration of the disability up to the age of 65 years. Benefits are usually computed as a percentage of the employee’s basic compensation prior to the disability. So at what salary I'm employing an employee at my company. I'll pay the short term or long term benefits to the employee on the basis of that salary.

Ques 3. Can a former employer giving negative job references to prospective employers be sued for libel?

Generally an employer is not prohibited under any law to give truthful information of its employers however, if the employee is having the facts which can prove otherwise, in the court of law or before the court of law or liberal could be proved. In that case of course, yes, an employer can be sued.

It is only by straying from the truth that a prior employee can make a bad reference illegal. However, there are some practical challenges with any defamation case. Some of, which are heightened in the context of job references.

Ques 4. What kind of injuries or illnesses might be compensated by worker's compensation?

So this question is purely based on what has been defined by the government of India covering the Worker's compensation. The worker's compensation benefit payments, help workers by paying for medical treatments, providing vocational rehabilitation program so they can go back to work and death benefits are also covered in the worker's compensation. Here also the long term and short term compensation is involved.

Ques 5. What is the position of an employer who is unable to pay minimum wages fixed under the Act?

Now here, the minimum wages act of 1948 defines the minimum wages in certain employments. There is a provision in the act which says that a particular employer is liable under the law to pay a minimum wage to its employees. It is totally based on the idea of social justice to workers employed in scheduled employment by prescribing them minimum rates of wages. Section 22 of the act is the one which deals with the penalty in case an employer is not fulfilling the criteria of giving minimum wages to the employee.

Ques 6. What are the essentials for opting for voluntary retirement?

Now I'll deal with certain essentials for opting for voluntary retirement. Voluntary retirement scheme is a generous tax free severance payment to persuade the employees who voluntarily retire from the company. Anybody can say that it is also a Golden handshake as it is a golden route to retirement and is based on the number of years of service put in and the number of years of service left. These schemes are floated by any company so where these schemes are floated and employee needs to furnish a notice to the authority revealing his desire to opt for the same.

It also lies in the will of the company to first approve the said notice and allow the employee to opt for the voluntary retirement .Unless and until this kind of scheme exists in a particular company or the company has opted for this kind of voluntary retirement scheme to be given to its employees, no employee can go and apply for seeking voluntary retirement.

Ques 7. In what circumstances an employee is disqualified from receiving bonus?

So there are particular grounds for on the basis of which an employer is well within, his decision to disqualify any employee from giving him any bonus. One is ‘fraud’ another is riotous or violent behavior while on the premises of the establishment, theft, misappropriation or sabotage of property of the establishment.

When any such kind of complaint is raised. It lies on the employee to defend himself and to prove otherwise rather than the employee to prove the miss-happening because any such incident which is taking place inside the premises could be easily proved.

Ques 8. Can any amount be deducted from the bonus?

Yes, it can be, when an employee is found guilty of misconduct causing financial loss to the employer, I can attribute the loss to an employee or, the employer can attribute the loss to an employee and deduct the bonus payable to the employee.

Ques 9. What is the remedy provided under the law for recovering bonus due, but not paid?

Now, here I will highlight another beneficial legislation, I say beneficial legislation because, where the employer has arbitrarily deducted bonus, an employee is within his power to apply for recovering his bonus under the employee’s provident funds and miscellaneous provisions act of 1952.

Ques 10. What are the obligations of the employer in respect of the employee’s claim for payment of gratuity?

The payment of gratuity act of 1972 is another beneficial legislation. It is a gratuitous payment required to be made by an employer to his employees at the time of termination of services. An employee is only liable to attain the gratuity if before his termination or before he chose to terminate his services he was in continuous services for at least five years.

Ques 11. Is a person entitled to any interest if the payment of gratuity due to him is delayed?

As per the payment of gratuity act, there are certain penalties under Section 9 of the act, which are embarked upon the employer in case the gratuity is not being paid to the employees. These penalties are both legislative and monetary, including imprisonment up to six months and of Rs. 10,000 or both. Failure to comply the provision of the act can lead to imprisonment up to three months or fine, which could extend to Rs 20,000.

Any offence , which can be prove in the court of law which is that an employee is not being paid with the gratuity by the employer is liable to be punished with imprisonment going to six months to two years.

Ques 12. What is the time for payment of maternity benefit?

So, this is again a beneficial legislation, the maternity benefit act which was later on amended in the year 2017. Now, while amending the act, the duration of maternity leave was extended from 12 weeks to 26 weeks for two surviving children. In case the woman has more than two children, the leave is only restricted to 12 weeks.

Ques 13. What is the period for which a woman is entitled to maternity benefit and what is the rate of benefit?

Now, after the amendment made by the Indian government, in the year 2016 and later on it was accepted in the year 2017. These are the maternity benefits which are effective with effect from 2017.They are fully paid, despite being absent from work, their salary cannot be deducted for 26 weeks at least. The act is applicable to organizations having 10 or more employees and that is the minimum criteria.

Similarly the employment law is having other beneficial legislations, which could be covered and dealt with. Thank you.

 


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ABOUT THE AUTHOR


Ashima Puri

I am Ashima Puri Chhibbar. A Civil Lawyer by profession and concentrating on Litigation practice since enrolling in 2008. I have expertise on family law matters Vis. Matrimonial disputes including, partition, divorce, custody, maintainance etc. I am practising Corporate Law including advisory and transactional practice. With a team of associate advocates and para legal associates, I represent corporate houses and SMEs. I provide legal assistance involving new business laws and regulations.

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