If you are stuck in such a situation, here is what to do.
Mr. Sameer Verma, a resident of the city of Alipur, was excited to receive a job offer from a prominent tech firm, “NextGen Digital Solutions Ltd.” As he carefully read through the terms of employment, a particular clause under the “Hours of Work” section caught his attention. The clause stated, “The Company may at any time, in its sole discretion, require you to work beyond nine (9) hours a day upon notice to you.” Ominously, the contract made no mention of any compensation for these extra hours, commonly known as overtime pay. This left Mr. Verma in a dilemma, questioning whether such a one-sided term is legally enforceable under Indian employment laws.
Advice in such cases
Encountering such clauses can be confusing. It is crucial to understand that an employment contract cannot override the statutory laws of the land. Any clause that is in direct violation of the law is void and unenforceable. It is always advisable to seek clarity from the employer’s HR department in writing before accepting the offer. If their response is unsatisfactory, you should assess the risks of accepting such a position.
Consult with Lawyer: The very basic and important step to start is to talk to a Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in the range of Rs. 10,000 to 50,000, depending on the case. He is helping you in this situation to come out. He is an expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved in 7-10 days.
Applicable Sections of Law
Working hours and overtime in India are primarily governed by the Shops and Establishments Act of the respective state, as different states have their own versions of this law. For office and IT employees, this is the most relevant legislation. Additionally, the new labour codes aim to consolidate and simplify these laws.
- The Occupational Safety, Health and Working Conditions Code, 2020: This code, which subsumes many older laws, generally caps daily working hours at eight.
- The Code on Wages, 2019: This code mandates that employers must pay overtime wages for any work done beyond the normal working hours. The rate of overtime is prescribed to be at least twice the normal rate of wages.
- State-Specific Shops and Establishments Acts: Most of these acts specify the maximum daily and weekly working hours (typically 9 hours a day and 48 hours a week) and mandate overtime payment for any work exceeding these limits. A contract cannot legally waive this right to overtime pay.
If you are the complainant
If you find yourself in a situation where you are being forced to work extra hours without fair compensation, you are the complainant. The first step is to formally raise the issue with your company’s Human Resources department, citing the clauses in your contract and the relevant labour laws. If the company fails to address your grievance, you can send a legal notice through a lawyer. The final step is to file a complaint with the Labour Commissioner of your region, who is empowered to investigate and resolve such disputes.
If you are the victim
If you have been subjected to working long hours without overtime pay, you are a victim of an unfair labour practice. It is vital to start gathering all possible evidence to support your claim. This includes your employment contract, salary slips, timesheets, official emails or messages asking you to work late, and any other communication related to your work hours. Following the internal grievance mechanism is the first step. If that fails, you have the right to approach the Labour Court or the appropriate authority under the guidance of a legal expert.
How the police behave in such cases
It is important to understand that matters related to employment contracts, working hours, and overtime pay are civil or labour disputes, not criminal offenses. Therefore, the police have no jurisdiction in such cases. Approaching a police station will not yield any results, as they will rightly direct you to the Labour Department or a Labour Court. The police would only get involved if the case involves criminal acts like wrongful confinement, assault, or criminal intimidation by the employer.
FAQs people normally have
Can my employer force me to work overtime?
While employers can request you to work overtime to meet business needs, they cannot force you. Furthermore, any work beyond the standard hours stipulated by law must be compensated at the prescribed overtime rate.
Am I entitled to overtime pay even if my contract is silent on it?
Yes. The right to overtime pay is a statutory right under laws like the Code on Wages, 2019, and various Shops and Establishments Acts. A contract cannot take away this right. If you work overtime, you are legally entitled to be paid for it.
What if I am in a managerial or supervisory role?
Labour laws in India often exempt individuals in managerial or administrative capacities from the provisions regarding working hours and overtime. However, the designation alone is not sufficient; the actual nature of duties performed determines the exemption.
What evidence is required?
To build a strong case against an employer for unpaid overtime, you will need concrete evidence. This includes:
- The appointment letter or employment contract.
- Official communication (emails, memos, messages) from your superiors instructing you to work extra hours.
- Attendance records, such as biometric punch-in/punch-out data, timesheets, or system login/logout records.
- Salary slips to show that no overtime wages were paid.
- Testimonies from colleagues who can corroborate your claim.
How long will the investigation take?
The duration of the process can vary significantly. An internal resolution with HR could take a few weeks. If a legal notice is sent, the employer might resolve the issue within a month. Proceedings before the Labour Commissioner are designed to be quicker and may conclude in a few months. However, if the matter proceeds to a Labour Court, it can become a lengthy process, potentially taking over a year or more to reach a final decision, depending on the complexity of the case and the court’s workload.
Advocate Sudhir Rao, Supreme Court of India