Hi, I received an offer letter from an org along with NDA. The offer letter speaks about 6 months probation and a 1-month Notice Period in the probation period. Also after it std 90 days applicable.

But in NDA, there are two clauses as below.

The recipient agrees to serve 1-year employment and may leave except in case of ill health, for which 90 days needs servicing.

The recipient agrees to refund 50% of the compensation after leaving org for the tenure of the employee with the company.

The recipient agrees to it and no question should come from the employee.

I spoke to HR, she says this is standard and is applicable in case an employee leaves without serving np. I asked her to update these clauses with this condition. She is not agreeing to update the NDA but she has given me an email reply that these clauses are applicable in case of not serving np.

I do not trust this email reply as it is non-binding and non-enforceable.

Please help me if my understanding is correct and whether I can trust the mail reply and still pursue her to update NDA, in case then not accept offer.

From India, Pune
Dear Aj-S,

There appears to be certain confusion in your mind. Because of this confusion, members also get confused on reading your post.

When the company is satisfied that the candidate is suitable to fill a vacancy in their company then it issues the "Offer Letter". In the offer letter, generally, the company mentions the date of joining, designation, salary offered etc. Once the candidate joins on a specified date, he/she becomes an employee and the company issues the "Appointment Letter". This letter is a detailed one and primarily contains the terms and conditions of the employment including the conditions of the separation.

Now please confirm whether you have been issued with "Offer Letter" or "Appointment Letter"? While issuing the former, hardly any company mentions the conditions of separation.

Your second confusion is on the "Non-disclosure Agreement" (NDA). However, the NDA is primarily is the disclosure of information during and some times after employment. It does not mention the length of the notice period or how the case of non-fulfilment of the notice will be handled.

I request you to first the definitions of the terms of employment and then write a post. A post raised with assumption may invite the wrong suggestions.

Your query was on the following:

The recipient agrees to serve 1 year employment and may leave except in case of ill health, for which 90 days needs servicing.

The recipient agrees to refund 50% of the compensation after leaving org for the tenure employee with company. The recipient agrees to it and no question should come from employee.


The reply is as below: -

The first condition is nothing "Forced Employment" which is inconsistent with the labour laws vogue in India.

The second condition is completely illegal. The employee gets remuneration for the quantum of work rendered by him/her. Recovery for the past remuneration paid to the employee on account of leaving the employment is ridiculous. Just ask HR under the provision of which labour law they have inserted this kind of condition in the appointment letter.

Final Comments: - The role of the HR-related to the labour laws is an advisory one. While the management may come up with the fancy conditions of employment, HR is expected to step in and try maintaining consistency with the labour laws. It appears that this has not happened in the case of the poster's company.

Thanks,

Dinesh Divekar

From India, Bangalore
Thank you Dinesh.
Apologies for not detailing the case.
I had received “offer letter” and post accepting the offer, I received “appointment letter” with date of joining, “applicant form”, “NDA” and request to attach relevant documents.
You are correct, NDA in my current org was requested to be signed when I had joined the org.
Below are the contents of clause which are questionable and I feel these as unreliable to extent of forcing labour and mala-fide intent in deceiving employee. This is my personal opinion based on the text of the clause and intent of it non disclosure agreement.
“That the receiving party agrees to work with the disclosing party for at least 1 year and shall not leave the service of disclosing party during this period, except in the case of continued ill-health, in which case she/ he can leave the company by giving three months notice period or payment in lieu thereof.”
“That the receiving party agrees, in case she leaves the company during the term of agreement, she undertakes to refund 50% of the gross emoluments paid to her during the period she remained in the service of the company, in addition to any other damages and/ or losses suffered by the disclosing party. The amount of refund shall be determined by the disclosing party and shall not be open to any question by the receiving party.”
Can you please help me with these clause to understand more. There is no parent clause above these clauses stating “in case employee leaves org without serving notice”
I also need understanding that why HR is not updating NDA with correct condition but she is able to give me this in writing in email replies. Should I accept this appointment or still pursue HR to modify NDA with the condition.
Best

From India, Pune
If someone can please help me in deciding what i have to do will be of great help.
I received written reply from hr which states that "clause 5 and 6 are only applicable for in case of leaving without serving notice period."
Although, she is not agreeing to update the NDA.
Thank you in advance.
Regards

From India, Pune
KK!HR
998

Pl have clarity that the NDA you are talking about has nothing to do with the notice period or the forcible refund of 50% remuneration.
The 90 days service as well the stipulation to refund 50% emoluments are burdensome to the employees, but that seems to be the company policy and HR cannot do anything about it apart from repeating that these are standard clauses in their appointment order. Thus the reply that "clause 5 and 6 are only applicable for in case of leaving without serving the notice period." is correct.
HR cannot add these clauses in the NDA as they are outside its scope.
You have the choice to reject the offer.

From India, Mumbai
Dear Aj-S,
This is a reply to your third post. Whether to accept the appointment letter or not is your decision. We cannot suggest anything. But once accepted the conditions mentioned in the letter will become applicable to you. Yes, the conditions are unreasonable and one-sided too, nevertheless, to ensure that these conditions are deleted is an onerous task. You may have to take a course of litigation as well. Are you prepared for that?
Thanks,
Dinesh Divekar

From India, Bangalore
I understand after agreeing the nda are binding. I want to take this employment but don’t want an agreement of bond employment which was not disclosed before or after interview process.
Can the hr email reply be taken in spirit of trust and be standing ground for her justification that clause 5 & 6 are applicable in case when employee leaves without serving notice.
Can her email be proof that organization will not ask me 50% refund of gross emoluments ?
What is emoluments here ?
HR told me that why would I put this 50% clause, when lot employees would not join by just seeing this clause. And I agree clause 6 is unreasonable binding in word and text and NDA should have if condition of when employees leaves abruptly.
Can I force this Organization to update their NDA ?

From India, Pune
Dear Aj-S,
This is the reply to your post number 7.
Email by the HR professional cannot supersede the contents of the Appointment letter. Therefore, there is hardly a legal value to the email.
The company has not disclosed the terms and conditions of employment right at the interview itself. This shows that the company lacks a culture of transparency. By her own admission, the HR professional says that if they disclose these conditions during the recruitment process then nobody will join. This shows that the company has a problem in retaining their employees and that is why they are resorting the acts of entrapment. Such companies are not to be trusted.
Thanks,
Dinesh Divekar

From India, Bangalore
Thank you Divekar.
One important point here is that the authority signing the NDA (COO) is same person has replied on email and providing clarification regarding clause 5 & 6. Still it will not be a valid clarification and additional information above NDA ?

From India, Pune
Your offer letter speaks that the probation period will be 6 months with 1 month notice period and the notice period will be 90 days on post probation period. The other term is you are bound to serve for a period of 1 year or other wise to pay 50% compensation on health ground by serving 3 month notice.
An offer once accepted means it becomes binding for the employee to discharge. This is not a standard offer letter from any corner for this establishment this may be a standard format. Your assessment is right, the reply of HR would get no worth against signed offer and appointment letter.
Now you decide what to do, consider the offer if unemployed or otherwise skip it for good. One should not do such things where there is doubts.

From India, Mumbai

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