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Contract Labour Act – Whether Sub Contractor also needs to take CLRA License;

The definition of Contractor as given under Sec. 2(c ) of the Contract Labour (R&A) Act, 1970 provides that a Contactor also includes a Sub-Contractor.

However, answer to the question raised in the title of this article is not categorically provided either in the Act nor in the Rules but at the same time it is to be taken from various provisions including Sec. 2(c ) of the CRLA Act and Rule 21 of CLRA (Central) Rules inter alia providing that for obtaining License, which is to be by the Contractor will be accompanied by a Certificate from the Principal Employer in Form V and as such the Sub-Contractor while obtaining License would be required to have a signature of his employer (contractor as well as the principal employer). Both the Principal Employer and the Contractor will issue the Certificate as given in Form V under Rule 21(2) of the CRLA Rule.

It is also imminent to note that for allowing Sub-Contractor to obtain License, the consent of the Principal employer either in writing via Work Order or the Agreement is mandatory, to enable Sub-Contractor to make an application for CLRA License subject to required headcounts. If such consent or clause in the Agreement is not provided, then it is advisable to ask Principal Contractor only to include head counts of Sub-Contractor in his application when Principal Contractor makes an application for License.

The Authorities normally insists to consolidate head counts of all Sub-Contractors in the application of Principal Contractor when each Sub-Contractor has got less than 50 employees and when such Sub-Contractor has got 50 or more than 50 employees, then Authorities insist for Sub-Contractor’s separatr License. The reason is well known to all. However, Law is silent on this issue

From the desk of Dayanand Mangaonkar

Proposed changes in Employees Pension Scheme 1995

In recent CBT meeting concluded at Guwahati it is decided to constitute task force of experts of Pension, Superanuation & Social Security Field.

It was also suggested to include members from PFRDA, VVGNLI (V V Giri National Labour Institute) , Two Independent Actuaries, Chief Investment Officers of some reputed Investment Firms /Mutual Fund Houses, Financial or any other Expert.

The task force would study the existing EPS 95 in the time and also issues raised by the Committee Members and suggest possible measures to engage the benefit under the EPS 95 within the defined time limit.

Other Recommendations:-

1) To make wage ceiling of PF & ESI equals; (Presently PF Wage ceiling is Rs. 15,000/- pm & ESI Wage ceiling is Rs. 21,000/- pm)

2) To make 12% contribution to EPS; (Presently its 8.33% subject to maximum if Rs. 1250/- pm)

3) To cover all employees upto wage ceiling; (Presently, Pension Contribution is restricted upto salary of Rs. 15,000/- pm)

Let’s see how and when these proposals and amendments see the light of the day.

Difference between Show Cause Notice and Charge-Sheet:-  

The fact is that no act defines Charge-Sheet or Show Cause Notice.

Any document/memo containing full details of misconduct in accordance with the provisions of Model Standing Orders or Certified Standing Orders or Service Rules will be termed as Charge-Sheet

Basically Show Cause Notice is given to an employee on the basis of the first hand information to conduct preliminary enquiry to ascertain the commission of misconduct. If during preliminary enquiry it appears prima facie that employee has committed misconduct, charge-sheet containing specific details is issued.

If the document whether it be named as charge-sheet or show cause notice contains all specific details so as to enable the workman to understand the allegations against him, makes no difference.

Punjab an Haryana High Court in the case of Om Prakash vs. P.O., Industrial Tribunal, Bhatinda, has held that f the show cause notice contains clear and specific allegations against workman employee responds to notice, it will not vitiate enquiry merely on the ground that the charge-sheet was not issued. It is not a matter of format but purpose is to apprise the employee about the misconduct.

US employee wins $450K lawsuit after unwanted office birthday party

A Kentucky man has been awarded $450,000 (£345,314) after his company threw him a surprise birthday party despite his warnings that it would trigger stress and anxiety.

The plaintiff, Kevin Berling, claims that the unwanted 2019 birthday party at Gravity Diagnostics caused him a series of panic attacks.

Mr Berling’s lawsuit alleged that the company discriminated against him based on a disability. The company has denied any wrongdoing. According to the lawsuit filed in Kentucky’s Kenton County, Mr. Berling – who suffers from anxiety disorders – had asked his manager to not celebrate his birthday at work as it normally does for its employees, as it could potentially result in a panic attack and would bring back uncomfortable childhood memories. Despite Mr Berling’s request, the company, which conducts Covid-19 tests, threw him a surprise party in August 2019, triggering a panic attack. He quickly left the party and finished his lunch in his car.

from the desk of Dayanand Mangaonkar

BOOMRANG EMPLOYEES: Past employees are companiess new talent pipeline…..

Oflate there is no more stigma in bringing back the past employees and this is being driven by the theory that leaving does not mean the betrayal but only a part of the professional cycle. When you are taking back people, you are not driving matrix but a message to the industry and internal staff that you are employee friendly, say Talent Managers.

Past employees are the new talent pipeline, and the stigma of leaving or rejoining an organisation is fading.

With attrition on a high and great resignation set to intensify this financial year, companies and human resource managers are reaching out and making an extra effort to bring back old employees who had left them earlier.

Those past employees know the work culture, know the company, most of them are performers and they will be productive immediately. HR Managers and Recruiters believe that it is important to destigmatize people leaving an organisation.

Of late, there is no more stigma in bringing back past employees, and re-designating them. And this is being driven by the theory that leaving does not mean betrayal, but a professional cycle.

“I have several boomerang employees – who had left us and have now joined back. People may leave for money, they will come back for culture. If people leave for culture, they won’t come back for money,” said Yuvaraj Srivastava, group Chief Human Resource Officer at MakeMyTrip, a travel tech firm. He said there is no harm in actively reaching out to them.

“When you are taking back people, you are not driving a matrix but a message. If one is saying he or she has taken back 20-25 people in the last one year or so after they left…it’s a huge message to the industry, and to the internal people too (that people are valued),” Srivastava added.

Barnik C. Maitra, Managing Partner and Chief Executive of Consulting Firm Arthur D Little (India and South Asia), says that destigmatization of past employees is a net positive for the talent pool as well as the industries. Boomerang employees are a nice pool of talent to choose from, and more so at a time when industries are facing a quality talent crunch.

According to Harvard Business Review, good companies are always on the lookout for good talent.

“They also recognize that every former employee is a potential future customer, business partner, referral source — and even a potential future employee. Returning employees, also known as “boomerang employees,” are an important part of the talent pipeline. This is particularly true in times when there are talent shortages, as well as in sectors experiencing a surge in demand driving a shortfall in available talent…,” HBR wrote in a recent report.

Nimisha Pathak, Director HR at consulting firm Alvarez & Marsal almost concurred. She said her firm and her team are now planning to reach out to people who have left them earlier, maybe in the past one and half years.

“We do understand why they have left. We also understand that they may have hesitation in calling back. We are, and shall reach out to some of them,” Pathak added.

But, what about compensation? “Anyone who has gone out with a hike, will unlikely to return at a low,” said Amit Khurana, Managing Director of Corporate Access, a HR Consulting Firm.
But are firms giving a wage premium, a good hike while bringing them back?

“They will never come back for a low. People centricity is key and we believe to be fair, sensitive and meritocratic. Meritocratic means, if I am taking a talent back, who had gone for a good 20-30 percent hike, I have to honour what compensation he or she is getting. In most cases they come back after a hike over the present compensation,” said Srivastava of MakeMyTrip.

Srivastava said top performers who left, are being taken back without a question asked, because you know them and their work.

Great resignation is here to stay……..

The talent war in India and elsewhere is only going to hot up in FY23 and voluntary attrition among seniors will be higher than juniors. And this will not be confined to tech or tech enabled sectors alone, but will play out on a more diverse canvas.

Now, you can take PF grievance to Consumer Coury: SC

In an important judgment that will ensure employees get pension benefits from PF Authorities, the Suprme Court (SC) has ruled that such organizations come under the purview of the Consumer Protection Act and can be held accountable for deficiency of service.

A bench comprising Justice Altamas Kabir and Justice V. S.Sirpurkar rejected the plea of RPFC (Regional PF Commissioner) of Kerala that employees were not a Consumer within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986 (CPA) as it was not rendering any service free of charge. It had also said when a master and servant relationship existed, the CPA would not apply to either of them.

However, Justice Kabir writing the verdict, said RPFC, who is the person responsible for the working of the 1995 Pension Scheme, must be held to be a Service Giver within the meaning of Section 2(1)(o) of the CPA. The Court said the relationship between the employees and the EPFO is not that of a master and servant as rendering free service or rendering of service under a contract of personal service was absent in such case.

The court, deciding six cases on similar issue, said employees come under the definition of consumer within the meaning of Section 2(1)(d)(ii) of the CPA. By becoming a member of the Employees Family Pension Scheme, 1971 and contributing to it, they were availing of the services rendered by the RPFC for implementation if the Scheme.

The case pertained to one Bhavani, who was a worker in Cashew Factory owned by Kerala State Cashew Decelopment Corporation, Kollam.

She retired on 31.12.1995 on attaining 60 years of age. Bhavani was a member of the Employees’ Family Pension Scheme, 1971 and was making contribution to the Scheme. Though she was eligible for Pension, it was not ordered by the RPFC.

Aggrieved by the refusal of the authorities to release pension, Bhavani filed an application before the Consumer Disputes Redressal Forum, Kollam, seeking grant of pension from the date of the retirement. It was contested by PF Authorities on the ground that the CPA, 1986, would not be applied to a claimant under EPF & MP Act, 1952 and she was not a consumer within the meaning of Section 2(d) of the Act.

The District Forum, State Commission and the National Consumer Disputes Redressal Forum had dismissed the plea of PF Authorities, after which it came to the apex court.

From Desk of Dayanand Mangaonkar

Better.com does it again, lays off employees in an awful manner…..

The company decided that the layoffs would be announced on Wednesday, but accidentally, the company rolled out the cheques early.

Employees share their horrible experiences with the company’s layoff procedure on LinkedIn.

A woman claimed that her computer shut down while she was working due to being laid off.

LinkedIn is now flooded with posts by former employees who are blasting better.com with stories that are nothing less than devastating.

One of the ex-employees, stated that her computer shut down while she was responding to a client, and it happened suddenly.

She stated that she did not find her laying off through the payroll app, severance cheque in the bank accountHR.

An employee just celebrated his 26th birthday and was laid off.

He was disheartened as he would’ve never imagined that this would be his birthday gift.

However, he understands that such is life and such incidents make one stronger.

Another employee stated that the obstacles lead us on the path to greatness.

Management Classes learnt from Russia Warfare

Russian warfare is not yet over and atleast I can not see its end so soon. However, every incidence whether it is on battlefield, project construction or some labour oriented event, always teache us something or other and there are many things which can be learnt from such incidences and the best example is recent Russian aggression in Ukrain.

Why powerful country like Russis is taking so much time to conquer Ukrain inspite of having hardened military personnel, technology and sophisticated weapons in their bags.

Please note that in ongoing warfare many of the Russian military personnel pressed into the Ukrain war are recent conscripts and have short periods of service. Report says, so far Moscow has not sent its battle-hardened elite troops into this Special Operation .

However, current set back would indicate that short tenures with minimal training just to reduce standing cost of war are not conducive to the kind of hybrid warfare.

In fact our country is also grappling with similar challenges of seeking to reduce the size of its man-power intensive army through short tenures for soldiers and thereby ensure fiscal savings.

Time will tell us, what would be the conclusion of this warfare, however, whether such tactics can work or can be uniformly be applied in all such critical projects or even its hybrid use is the best case study material for all management classes.

Colonial Van & Storage Inc., v. Superior Court

It’s always been an employer’s duty to keep the workplace safe for employees. But ever since the pandemic and remote work, the line between home and the workplace has blurred.

This has resulted in many employers wondering if they’d be responsible for the safety of a remote employee’s home — since that’s their workspace.

The answer is … it depends. And a recent court case in California had a judge draw the line at what an employer’s responsible for in remote workers’ homes.

Here’s what happened.

Injured in the home…

In a tragic and disturbing case (Colonial Van & Storage Inc., v. Superior Court), a remote employee invited several co-workers to her home for dinner. During the dinner, the employee’s son — a veteran with a history of PTSD — got his hands on a gun and used it to injure several guests and kill one.

The victims of this tragedy wanted to hold the employer responsible, arguing that Colonial Van and Storage had a duty to ensure that home was safe for its workers.

But the California appeals court ruled in favor of the employer. It said the company had no control over the employee’s home. While the company did get some commercial benefit from the home, since the remote employee did perform work there, it wasn’t enough to create a duty to ensure it was safe.

The court said that ruling in favor of the employees would have “sweeping consequences” for employers in this regard, adding “holding every employer absolutely liable for any injury suffered at home by working-from-home employees would be extremely onerous.

Additionally, it would essentially invite employers to modify and surveil employees’ private homes, the court said.

When employers are responsible………

That being said, there are instances where an employee’s injury at home could be compensable under workers’ comp, if they can prove the injury occurred while they were doing something work-related.
Many courts have found that even though an employer is unable to control the conditions of an employee’s home, it can still be held responsible for the injury if the worker was acting in the interest of the company at the time the injury occurred.

EEOC slaps employer with lawsuit after failing to hire a deaf applicant….

Employers have obligation to accommodate qualified candidates with disabilities under U.S. anti-discrimination laws.
(Even in India also we have Right of the Persons with Disabilities Act which is so far notified only in 16 States. Maharashtra is yet to notify the same). The said RPwD Act has also got stringent provisions and says compulsory recruitment of disabled persons (including Persons with Intellectual Disabilities-PwID) at workplace.

The following news is about incidence taken place in USA.
The U.S. Equal Employment Opportunity Commission (EEOC) has recently warned employers that a failure to hire qualified applicants because of their disability would have serious legal consequences.

Employers have an obligation to accommodate qualified applicants with disabilities under the country’s anti-discrimination laws, as it comes with society’s expectations that businesses would promote inclusivity and diversity in the workplace.

In a recent case, health care provider North Memorial Health failed to hire an applicant who is deaf because of her disability and also failed to provide her with reasonable accommodation. The EEOC said the employer violated civil rights law. Consequently, the former recently filed a lawsuit against the latter in Minnesota.

According to the lawsuit, the applicant applied for a greeter position in July 2020. The employer operates two hospitals, various specialty and primary care clinics, urgent and emergency care facilities and medical transportation services throughout the Twin Cities metropolitan area.

In a media release, the EEOC said that the applicant was qualified for the position and “could perform the essential functions of the job,” which included “greeting visitors, communicating COVID-19 masking standards and policies, giving directions and keeping the area tidy and welcoming.” But the employer failed to accommodate and hire the applicant because of her disability.

The EEOC said that the employer’s alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), as amended, noting that it is “unlawful to discrim­inate against, fail to hire, and fail to accommodate qualified individuals with disabilities.”

“It’s illegal under the ADA to refuse to hire an applicant because she is deaf or hearing-impaired,” district director of the EEOC’s Chicago District Julianne Bowman said in the media release. “Discrimination against applicants with disabilities is a problem that the EEOC will continue to address vigorously,” Bowman added.

“Unfortunately, when deaf people apply for jobs, some still encounter discrimination. Some employers erroneously believe that they cannot perform the job because of their disability or discriminate against them based on myths, fears and stereotypes. The EEOC will prosecute such violations of the ADA to ensure that deaf and hearing-impaired workers are not subjected to discrimination,” EEOC’s Chicago regional attorney Gregory Gochanour said.

The EEOC filed the lawsuit in U.S. District Court for the District of Minnesota after attempting to reach a pre-litigation settlement through a conciliation process. According to the EEOC and the applicant, they seek back pay, damages and injunctive relief against the said employer