Hi,
I work in an IT company for 2 years and I am 7 months prgnant right now. My HR says I can avail 3 month maternity leave, however i will get just my basic salary for three months also it will be paid only after I come back from my maternity leave.
Even then it will take 2 more months for them to process it(meaning I need to wait for 5 months from the day I take maternity leave to get 3 months basic pay).
Is it legal?
I have huge commitments, i was in an assumption that i will get my full salary for 3 months(during maternity), like my friends who work in other companies. Now its coming like a shock that i will not get paid for 3 months.
Is it legal not paying the employee who is going on maternity leave? (I mean during maternity not after 5 months)
Please advise on this.


It is illegal. You are eligible to get full pay for three months (12 weeks) on monthly basis and not after you join and wait for a further period of two months. In IT companies such things will happen because they feel that labour laws are made for manufacturing companies and not for them. There are lots of concessions given to IT companies but labour laws are same in all sectors in India and this is known to your HR person also; but he makes his own rules or rather is forced to interpret rules according to the decisions of the Management. The Management, on the other hand, feels safe that no employee is going to be hostile due to the fear of skill registry of NASCOM.

Now coming to the situation you are facing, it is very difficult to give you a proper advice since the reaction of proper advice that we give may have negative impact on your career. The only possible way is to put up a claim in writing before the HR and ask him to write his comments on it (whether benefits will be given or not as per Maternity Benefit Act) and forward the same to the Labour Officer for intervention and appropriate action from his side. That will bring you the result but will not guarantee continued relationship with the company. Of course termination can be prolonged since during receipt of maternity benefit a woman employee should not be terminated but it can be done in a later stage, at least. Moreover, it will have negative impact on your career also.

Every one says that labour laws are made for the benefit of employees only but forgets the fact that inorder to get the benefits and protection offered under various statutes the employees will have to sacrifice a lot and some times it will be their career which is spoiled if they go for it and therefore, ultimately it will be the employers who gain!

Regards,

Madhu.T.K

From India, Kannur
You are eligible for Maternity Leave of 84 days with full pay and also you are entitle for Maternity Bonus after submitting the forms as per the provision of Maternity Benefit Act.
Do not go against the officials of Company and try to convince them by showing the copy of Maternity Benefit Act which is applicable to all industries except where ESIC is applicable . I think this is their first case of Maternity Benefit. Write the application along with your Medical Certificate showing your date of EDD.

From India, Pune
Very true !!!! Under such circumstances/realities, it is very difficult even for the upright and conscientious HR’s to comply with and act fairly. Warm regards.
From India, Delhi
Hi Madu/Govind/dourenr/Raj Kumar,

Thank you so much for all your replies, I did write to my HR, but they hesitate to reply over the mail, however I had a telephone conversation but they tried to convince me that according to government norms they can only give the basic pay that too after I join from maternity leave.

I quoted the "Maternity Benefit Act" still they say that its the company policy and management cannot deviate from it. I am in the client's place not in the company's premise. My immediate contact is my HR and no one else. I dont know anyone form the management. When I asked my HR, he tried not to give me any information about the management.

He asked me to write an e-mail, describing my situtation so that he will inform the management, he says he forwarded that e-mail to the higher management and they denied my request. I was not cc'ed in any of the mail communications he had with the management, when asked he said its confidential cannot disclose.

They have no issues in providing 3 months maternity leave, but the problem is I wont get paid during that time also just the basic pay after I re-join.

I have ECS to pay everymonth and the basic pay wont help. Also I need to take care of pre and post delivery expenses. My situation is very critical. I did explain all that and requested them to consider and pay atleast the basic pay everymonth during my maternity, but they denied.

There is nothing mentioned about the maternity benifits in the offer letter/appointment letter, its mentioned only in the company's year book. Thats how I came to know about it, i was not informed about the maternity benefits. So far i was in an assumption that i will get full salary for 3 months.

All they can do is credit 3 months basic pay immediately after I rejoin, its not going to help me anyways. I will be out of money with all the bounce checks and my husband needs to take care of me with my debts(feel guilty about it cos all those ecs are my marriage loans which is my responsibility) which is going to make our life miserable.

As Madhu said, cannot take it to the Labour office, i have to plan something else after my delivery.

Thanks once again for all your suggestions and replies.

Dolly


Dear Dolly

I have gone through your response, with care.

It is amply clear that the company is trying to wriggle out of the legal provisions.

As discussed earlier, its very difficult for an employee to get its lawful dues when the company is bent upon denying it.

What is your location (in India or overseas) and where is the registered office of the company ?

Whether the client company where you are/were working is a foreign company, incorporated in another country other than India ??

How is your salary being paid - through the client or remitted directly by the company to your bank account (in which currency) ?

Seems the company is aware of the legal technicalities involved, especially the extent and limitations of Indian Labour legislation etc. ; and is exploiting the situation.

You need to continue to be pro-active to secure the legal dues not only for yourself but for others in a similar situation.

I assure you, if you persist till the end, your case may turn out to be Case law, and bring relief to many in future.

Warm regards.

From India, Delhi
Dear Mr Madhu TK, Hats off to your reply. You have given both sides of the situation. Fantastic, your reply deserves more than simple "appreciation". Thanks, Dinesh V Divekar
From India, Bangalore
There is a rule (need to check the section) that clearly provides that the employee going on maternity leave needs to be paid half of the amount before she goes on leave. The balance is to be paid on return. It is not required for the company to give monthly payments.
Where you are working is also important
If you are in USA or Europe, you also have the benefits of local laws that will support you. I remember TCS was made to pay a pretty hefty fine for some actions that the court said was designed to discourage pregnancies among their female employees station in USA.
On the other hand, I do not see why you are feeling guilty for asking your husband to help you tide over the cash flow issue. He is very much responsible and must have been a party to the (I assumed) planned pregnancy. By carrying a guilty feeling on this, you will cause stress which will harm the health of you and your child. You need to get to a positive frame of mind as far as possible.

From India, Mumbai
Also clarified : sec 2(n) says wages is gross wages, that is all amount that would normally be payable except OT (which you can't get when you don't work), Bonus and Gratuity. So, their rule of paying only the basic wages is wrong. You can quote the definition to them.

(n) "wages" means all remuneration paid or payable in cash to a woman if the terms of the contract of employment express or implied were fulfilled and includes -



(1) such cash allowances (including dearness allowance and house rent allowances) as a woman is for the time being entitled to



(2) incentive bonus and



(3) the money value of the concessional supply of foodgrains and other articles but does not include -



(i) any bonus other than incentive bonus;



(ii) over-time earnings and any deduction or payment made on account of fines;



(iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and



(iv) any gratuity payable on the termination of service;

From India, Mumbai
Sorry, part of my answer was wrong.
Sec 6 (5) states that part of the benefit must be paid in advance and the balance within 48 hours of proof of delivery. S out of the 12 weeks that you take leave, the part before expected delivery date must be given by them in advance.
(5) The amount of maternity; benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.

From India, Mumbai

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