- IT Employees Life : Fun or Problems?
- Can the management terminate employees whenever it wants?
- Corporate Appointment Letter and Mafia Loan Agreement
- Don’t Resign without a Job in Hand
- Can an IT Employee Fight the Company?
- IT Layoffs – A word to HR
- Does onsite and High salary secure our Future?
- Appraisal and HR Threats – Don’t be Afraid
- Join Union to secure our legal rights
- IT Layoffs – Are we really smart?
- Shyam Sundar who is part of NDLF IT union has around 20 years of experience in information technology. He is writing an article series on “IT employees Life Fun or Problems” to create awareness about various issues faced by IT employees. This write up is continuation of Part 7.
To fight layoffs, the most important aspect is to for the employees to have the correct mindset. I hope the various topics which we discussed so far will give a positive mindset for taking up the challenge of fighting illegal terminations. Now we will go into the legal aspects of fighting against illegal terminations.
Employee can individually fight against layoff by taking legal route on their own. In the Ramesha case against HCL, he has taken the fight independently. The main challenge in taking independent fight is that legal cases are time consuming and employee will lose their confidence in the time it takes. If they go through labor union, they can fight better as they get moral support, meet fellow affected employees, get counselling from union members, seek legal support from lawyers of unions.
Indian constitution guarantees the right of employees to form associations (unions). It is the fundamental right of all employees in any sector to form unions. But IT employees are still hesitant to join unions. When we analyzed the reasons for the hesitation, these are the answers we got from IT employees:
- It is not allowed to start a labor union in IT industry. It is applicable only for factory workers.
- My company will blacklist me if I join labor union and I will not get any job in the future.
- Personally I don’t have any job threat. In worst scenario, even when I get affected, I will get a new job easily in another company with hefty hikes
- Labor unions are political, there is a high chance I will get misled and I don’t want to get involved in any political activities.
- Labor unions are only for fighting against termination.
- My company will not encourage labor unions. IT companies will not allow their employees to join unions.
We will try to answer these queries floating among IT employees.
In 2016, Tamil Nadu government has written a letter to NDLF that all labour laws are applicable to IT industry. It also clarified that the government did not give any exception to IT sector. So forming union is a fundamental right of any employee in IT sector also.
Many of us have a feeling that union is a bad word in IT industry. Unions exist across all sectors and we have unions in various sectors like transport, factories and also in white collar sectors like teaching, banks etc. These unions not only fight against illegal terminations but play important role on negotiation for salary hikes, seeking protection for employees, helping employees for their various demands etc.
In IT industry, IT companies have a “union” in the name of NASCOM. They use NASCOM to help in solving their problems and getting help from government for their needs.
It is illegal for any company to take action against employees for joining union. Many companies have policies to support unions. But hire and fire can not be done so easily if employees form union. That is the reason many companies don’t like their employees joining unions and spread the myth that union is not allowed for IT employees.
Currently it is easy for IT employees to switch their jobs until 10-15 years of experience. But if an employee crosses 40+ age, it becomes difficult. Many IT companies don’t want to have more employees in this age bucket due to various reasons like increased salaries etc. So if you feel that you will get another job if you lost job but practically it is very difficult to get through as you gain more experience. Many companies are rejecting employee resumes even before interviews based on age. It is becoming very difficult for experienced employees to get a new job, once they are out of job.
Unions definitely have political background and especially NDLF has a communist base. But this political base is very much required to oppose the corporate mindset. Politics is everywhere and we have to follow right in politics to protect our interests.
Employees joining unions will help them to protect their jobs and fight for common rights of employees. So all IT employees should come forward and join in unions. The main advantage of unions is we can seek our right as part of collective bargaining which is difficult if we are individuals. So please write to us at email@example.com or call us at 9003009641 to register yourself with our NDLF IT union.
We will now see the legal aspects of how to fight against illegal layoffs. Before exploring ways of fighting against layoffs, we will see general terms and conditions to be followed for companies to do layoff or terminations.
Layoffs: This is a temporary measure by which company can send employees out for shorter duration of time. The reason for layoffs could be natural calamity, loss of business to company, shortage of raw material availability etc. In this case, employee/employer relation still exists and employee will be still under the payrolls of the company. The company pays specific percentage of the employee salary during layoff. The duration will be upto 3 months per year
Retrenchment: Due to financial loss and business turning unviable a company may decide to reduce the employee strength. Any company of greater than 100 people strength should get prior permission from labor department for doing retrenchment. That means, retrenchment should be justified with financial statement. Moreover, in retrenchment, newly joined employees will be sent first and not senior employees who are working for longer duration. When the company starts hiring again, the retrenched employees should be given first priority. So, legally retrenchment is not allowed even as the company is hiring freshers as IT companies do.
Severance package of 15 days of salary should be paid to employees for every year of service the employee had put in the organization. For example, if employee worked for 20 years in the company, company has to pay 10 months of salary as severance package. But in practical scenario, company has to pay 2-3 months of salary for every years of employee service.
Termination : The company cannot terminate employee based on poor performance or appraisal rating. The company cannot terminate employee by adding new policies. Termination of an individual employee is allowed only for gross misconduct. Even in that case, a proper procedure should be followed by the company such as issuing show cause notice, conducting enquiry by a committee, giving opportunity for the employee to present their side of case. Any alleged misconduct should be established by clear documentary evidence. Even then for all cases termination is not the punishment.
Only to escape from all legal huddles, companies are asking employee to submit their self-resignation. If employee submits resignation on their own it is shown as voluntary attrition.
We will now see what employees can do when they got terminated (or forced to resign) from the company services. In this case, employee can file case in labor department under section 2A of Industrial disputes act. If employee had submitted self-resignation, company will claim that employee has submitted resignation on their own and company has not done any termination. They also argue that the employee has been paid settlement package and it is already utilized by the employee. But employee can still fight. NDLF members have filed multiple 2A cases in various locations against forced resignations in the last 1 year.
NDLF IT Employees Wing is formed by IT/ITES employees working in various IT companies including BPO industry. The office bearers are elected from among the IT employees. Regular meetings are conducted among union members and problem of IT/BPO employees are discussed in this meeting.
Union can seek job protection for employees by passing various resolutions in internal union meeting and file 2K petition under industrial disputes act. In this case, it is a collective dispute by the union.
As per section 33 of Industrial disputes act, if there is a dispute raised in front of labour officer, company should not alter the terms of employment until the dispute is resolved.
In addition, section 33 provides union office bearers to be declared as protected workmen. To protect union office bearers from unfair action by company, labour act has a provision to get upto 100 employees declared as protected workmen.
So in a nutshell, the following are the advantages of joining unions:
- If people join unions, they come across fellow IT employees affected with same problems. They can help each other and approach problems collectively.
- Legal help can be attained from union lawyers
- Fight against unfair practices by the employer under section 2K of Industrial disputes Act.
So people should not hesitate to join unions. Everyone should come forward and join the union.