United States: Key Recent Developments In Indian Employment Law Impacting Diversity In The Workplace

Co-authored by: Ms. Gopalakrishnan is an employment lawyer at AZB & Partners

Four key recent developments in Indian employment law will impact diversity and inclusiveness policies of companies operating in India.  The first is the enhancement of maternity leave benefits.  The second is a set of changes to workplace terms and conditions – mainly those specific to women – in certain companies located in the State of Maharashtra, where the economic hubs of Mumbai and Pune are located.  The third development is a new reporting requirement for certain companies regarding their efforts to prevent sexual harassment in the workplace.  The fourth is the Indian Supreme Court's decriminalization of private consensual sexual conduct between same-sex adults.  Each of these developments is described in turn. 

Enhanced Maternity Benefits

In 2017, the central government amended the Maternity Benefit Act of 1961 to increase the period of maternity leave from 12 to 26 weeks for women with fewer than two surviving children.1  Women with two or more surviving children continue to be entitled to 12 weeks of maternity leave. The amendment also provides 12 weeks' leave to women who adopt children under the age of three months or women who have children through surrogacy.

Employers with 50 or more employees are also required to provide daycare facilities to women returning to work following maternity leave.  The amendment allows women to work from home if the nature of their work permits under the terms and conditions agreed to by the employer and employee.

In an amendment to the Payment of Gratuity Act of 1972,2 along with a general increase of end-of-employment payment (called a "gratuity" under the law) from INR 1,000,000 to INR 2,000,000 paid to employees with at least five years' "continuous" service,3 the maximum period of maternity leave that can be counted towards the five-year "continuous" service requirement was increased from 12 to 26 weeks.

Additional Protections for Women Workers in Maharashtra

The Maharashtra Shops and Establishments Act largely governs the general workplace conditions in commercial establishments in the State of Maharashtra.  This law was recently overhauled, with many of the changes pertaining to the working conditions of women, including the following:4  

Prevention of workplace sexual harassment. The amendments emphasize the need for employers to take all necessary measures to "strictly" implement the central legislation on the subject, i.e., Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 (the "Prevention of Sexual Harassment law"). This law broadly defines sexual harassment and creates a mechanism to redress complaints of harassment, specifically requiring each establishment with 10 or more employees to establish an "Internal Committee" to receive and redress complaints of workplace sexual harassment raised by women. 

Working conditions requirements.  Employers are required to, among other things:

  • maintain a complaint box;
  • prominently display phone numbers of local police and women's helpline;
  • provide proper lighting and illumination inside the establishment, its surroundings, and places that women may visit for work purposes;
  • if the establishment has 10 or more female workers, engage a sufficient number of female security guards; and
  • provide separate and safe restrooms for women.

Daycare Facilities In establishments where 50 or more employees are employed, employers must provide daycare facilities for employees' children. 

Night-Shift Work Protections for Women The amendments also prescribe specific working conditions for women working night shifts.  In particular, an employer may require a woman to perform night-shift work (i.e., between the hours of 9:30 p.m. and 7:00 a.m.) only if: the woman provides written consent to work that shift; the number of women working that shift is no fewer than three at any given time; and the employer provides safe and secure transportation between the workplace and the doorstep of the woman's residence.  The law also bars women from working the night shift during a 24-week period before and after giving birth.  However, this bar may be lifted at the request of the employee if supported by medical certification from a qualified medical practitioner stating that neither the woman's health nor that of the child would be endangered. 

Health, Safety, and Welfare Committee.   Employers with 100 or more workers are now required to create a Health, Safety, and Welfare Committee, consisting of an equal number of employer and worker representatives, a "sufficient number" of which should be women (if the employer has women workers).  The duties and responsibilities of the committee include surveying the premises and determining if areas are susceptible to accidents or have hazardous objects; rectifying such defects; conducting health and wellness camps once a year; creating awareness of any contagious diseases, epidemics, etc.; conducting recreational activities annually; and organizing social and educational awareness programs. 

Reporting Requirements on Compliance with the Prevention of Sexual Harassment Law

As a result of amendments to the Companies Act of 2013, as of July 31, 2018, companies must now disclose in Board of Directors reports whether or not they have complied with the Prevention of Sexual Harassment Law's requirement to create an "Internal Committee" in every establishment with 10 or more employees, for the purposes of receiving and redressing sexual harassment complaints.5  Failure to comply with this reporting requirement may lead to a minimum fine of INR 50,000, and even imprisonment of the company's officers.

It is also important to note that the Government of India has launched an online platform to receive sexual harassment complaints from women employees employed in both the private sector and the public sector, known as "She-Box" (Sexual Harassment Electronic Box).6  The government will review these complaints, forward them to the Internal Committees of the respective employers to investigate, and monitor the employers' efforts in addressing the complaints.    

Decriminalization of Consensual Same-Sex Acts

On September 6, 2018, in a set of landmark decisions, the Supreme Court of India declared unconstitutional Section 377 of the Indian Penal Code, 1860 (IPC), insofar as that law punished private, consensual sexual relationships between two adults of the same sex.7  The Court emphasized that homosexual persons have a fundamental right to live with dignity without any stigma attached to their sexual orientation, and are entitled to the equal protection under the law. 

As a result of these decisions, if employees are discriminated against on the basis of their sexual orientation, those employees will now have a claim for a violation of their fundamental rights of freedom of expression.  Moreover, previously, many employers were hesitant to implement affirmative action programs benefiting their LGBTQ workers, as those employers were concerned that they would be considered to have aided and abetted the crimes specified under Section 377.  This decision will likely embolden employers to now include LGBTQ workers in their diversity and inclusiveness practices.  

Conclusion

The landscape of Indian employment law is rapidly changing, especially from a diversity and inclusiveness perspective.  For American and other non-Indian employers, navigating these changes not only poses legal challenges, but also complex cultural challenges, thus requiring the involvement of experienced counsel.  Littler will continue to monitor and report on these developments from India. 

Footnotes

* Ms. Gopalakrishnan is an employment lawyer at AZB & Partners and is based in Bangalore, India.  She provides local counsel assistance to Littler attorneys on a wide variety of employment matters.  

1 The Maternity Benefit (Amendment) Act, 2017, available at   https://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act%2C2017%20.pdf.

2 Payment of Gratuity (Amendment) Act, 2018, available at  http://egazette.nic.in/WriteReadData/2018/184298.pdf.

3 Indian law generally requires commercial establishments with 10 or more employees to make a lump-sum payment, known as a "gratuity," to an employee terminated as a result of resignation, retirement, superannuation, death, or disability due to accident or disease.  An employee is eligible for this benefit upon completing at least 5 years of continuous service with the employer, except in the case of death or disability.  The gratuity is calculated at the rate of 15 days' average wages for every year of completed continuous service.

4 Maharashtra Shops and Establishments (Regulation of Employment and Conditions of Service) Rules, 2018, available at  https://mahakamgar.maharashtra.gov.in/writereaddata/Portal/Images/pdf/Regulation_of_Employment_Conditions_of_Service_Rules_2018.pdf.

See  Companies (Accounts) Amendment Rules 2018, under §134 of the Companies Act 2013.  The Prevention of Sexual Harassment Law already contains provisions requiring companies to disclose, in their annual reports, details such as the number of complaints received, number of cases redressed, and pending matters.  This new requirement enhances the transparency on companies' efforts to comply with the Prevention of Sexual Harassment Law. 

6 Ministry of Women and Child Development, SHe-BoxOnline Complaint Management System, available at  http://www.shebox.nic.in/.   

7 Section 377 of the IPC criminalized voluntary, carnal intercourse "against the order of nature" with any man, woman or animal. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Trent M. Sutton
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions