Your Rights As An Employee: Hiring Stage
In the current Indian economy, with the unemployment rate just under 5%, more companies, startups and organizations are looking to hire skilled labour. In the 3rd CII National Conference on Skill Development, the report submitted found that only 3.4% out of every 1,00,000 candidates are employable in India. This means companies have to go through several applications, interviews and job offers before finding the right person for the right job. Applicants applying for employment have a tough time too because they have to apply to multiple companies, go to several companies for interviews and then select a company based on the offer letter, package and position being offered.
A company starts hiring broadly based on three scenarios –
- While starting the company.
- While expanding or introducing new products/ services and hence, requiring a larger workforce.
- During a pivot, when a company decides to change gears and thus, requires a new set of employees with different qualifications or skill sets.
A company hiring new employees is usually a sign that a company is prospering and doing well. But for most new employees, there is a lack of understanding as to the rights they have during the hiring stage of employment. It is important that an individual knows his or her rights, duties and policies for the simple reason of avoiding future chaos and for a smooth, productive working.
Rights Of Employees
Rights of employees discussed in this article are in relation to Private Sector employees only. Some of the rights of an employee during the hiring stage are:
Interview
All applicants applying for employment are protected against bias during hiring with respect to gender, age, race, religion, disability, color of skin, place of origin, etc. This means that an employee cannot be refused employment on any of these grounds, and if done so, the employee has the right to file for discriminatory hiring practices.
Offer Letter
An offer letter is the first step an employer makes towards formally hiring an employee. An offer letter outlines the basic tenants of employment, such as position, location of employment, CTC, salary, date of joining, etc. An employee has the right to accept an offer letter, make changes or amendments to clauses in an offer letter or reject the offer letter completely.
Employment Agreement
A written employment agreement signed and provided by the employer is a must. It is important that a legal professional drafts the employment agreement and employment terms of service. Apart from clearly defining the line of work the employee would be expected to perform, some other clauses include the right to privacy, confidentiality and Intellectual Property (IP). The consent of both parties is required when executing a contract or agreement as per Indian Law. That means no party can make changes to the contract without the consent of the other party. Non-compete agreements are not enforceable under Indian Law and non-solicitation clauses are enforceable in very limited ways.
An employee has the option to switch companies during or after the probation period, but any such decision made should be in accordance with provisions of the employment agreement and employee handbook. A probation period cannot exceed 240 days under Indian Law. The company or the employee has the option to terminate the contract within such time. A notice period can also apply before termination of your employment contract.
Compliance
If your company asks you for education records, criminal records, drug screening test, medical history, credit checks and immigration status, you are required to comply for the purpose of your recruitment as per company policy. These are generally drafted based on a company’s HR policies and are stipulated in the employee handbook (manual). It is important to note that certain tests are completely prohibited under Indian Law, such as pre-employment testing for HIV. If an individual is not hired as an employee yet, then he or she can choose to decline submission of such documents or tests and forgo employment at that organization.
As per the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959, a State may require a Private Company with 25 employees or more to notify employment exchanges of such vacancies. Although most companies don’t adhere to this rule, these exchanges may have candidates to fill up the vacant positions. Contractors can be hired based on the stipulated State Law, although for some companies, hiring contractors may require a contractor to hold a license.
Wages
With respect to wages, the Central Government has stated that the minimum wage per day for any employee in any sector has to be minimum of Rs. 160. State Governments are expected to adhere to the same minimum wage of Rs. 160, as mandated by the Center. There can be no discriminatory practices against men or women hired for the same position with respect to wages in the same company.
If an employee works over 48 hours a week, then that individual is entitled to overtime wages as per State Laws, although very rarely do companies comply. An employee has the right to ask for overtime if the contract signed stipulates overtime pay for more than 48 hours worked in a week.
Women Employees
If the applicant looking for a job is female, then she has the right to refuse to work during night shifts or after dark. Women employees aren’t allowed to work at night (between 8 pm and 6 am) as per some State Laws and a company is required to get permission to allow female employees to work late or at night.
Under the Maternity Benefits (Amendment) Bill, 2016, an employer has to provide for a creche facility, if his or her organization hires more than 50 employees. The facility to work from home after paid maternity leave has been included in the Bill, and it also defines commissioning mothers and adopting mothers (12 weeks maternity leave). No employer can hire a woman employee in the following 6 weeks after delivery or miscarriage.
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