Need for a stronger regulatory framework with regards to work from home policies
In recent years, given changing cultural attitudes and advances in technology, many employers in India are now able to offer their employees the opportunity to “work from home” or “telecommuting”. While such an option cannot always be offered by all employers or even to all types of jobs, it helps employers by not requiring as many resources at the workplace (e.g. fewer seats, lesser lights or air conditioning etc.) and benefits society as a whole by decongesting traffic and by marginally reducing the carbon footprint of such workers.
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Despite such a trend and the benefits it brings, labour laws in India have not yet evolved to a stage where such a concept is fully recognized or provided for. While the recent amendments to the Maternity Benefit Act, 1961 do provide for working mothers, depending upon the nature of their work, to be allowed to work from home for such period as may be agreed between the employer and them, they do not get into providing any further details in this regard nor are there any other exceptions provided for working from home under any other labour laws.
In framing any law around providing for a ‘work from home’ option, the following aspects should be considered:
(a) Tracking work timings – Since the employees would be working from home, there is no mechanism in place to monitor their work timings and consequently to assess whether they end up working overtime or working at all. Given that each of the State Shops and Commercial Establishment Acts provide for defined working hours for most establishments and for overtime payments to be made to employees who work beyond such hours, it may be possible for employees to claim overtime in such a scenario by claiming that the work done by them was done beyond the normal working hours of the establishment. While employers may consider the use of software that tracks the activity of the employees on their computers, this would need to be done bearing in mind upcoming changes proposed to be made to India’s data privacy regime which could regulate such tracking. Another aspect to bear in mind is regulations that apply to establishments which choose to employ women in the night-shift (typically the period between 8 pm and 6 am). Since most of these regulations are meant to provide for the safety of the women employees, most of them would not apply in case any women employees are required to work from home during the night shift.
(b) Confidentiality of data – As most data that employees work on is confidential in nature, it would be important for the employer to ensure that any work carried out by the employees is only carried out on Company provided laptops and on virtual private networks. Given the ease with which data these days may be leaked or hacked, appropriate precautions must be taken to protect such data.
(c) Ownership of intellectual property rights – Under the Indian Copyright Act, 1957, the copyright in any work that is done by an employee during the course of his employment belongs, in the first instance, to the employer. However, most employment agreements these days create carve outs allowing employees to develop their own copyright in work that is performed by them during ‘non-office hours’ or in their free time. When implementing a work from home policy, the lines may get a bit blurred as to when an employee was working and when the employee was taking a break, and this could lead to disputes as to who the actual owner of a particular work product or development is.
(d) Employees’ Compensation Act – Under the provisions of the Employees’ Compensation Act, an employer is required to compensate an employee or his/her heirs if such employee suffers a ‘workplace injury’ or if he/she gets injured in the ‘course of employment’. In view of the difficulty in determining when the employee may be ‘in the course of employment’, it could lead to instances of an employee claiming compensation from his/her employer for any injury that the employee may suffer at home.
Considering the abovementioned issues, there is a indeed to formulate a clear and well thought out law on what working from home would entail. Until then, employers should structure their work from home policies so as to bear in mind some of the above issues even as they balance the current requirements of law.