Is It Legal for My Company to Delay Maternity Leave Pay for 5 Months? Seeking Advice

Hi, I work in an IT company and have been there for 2 years. I am currently 7 months pregnant. My HR says I can avail of 3 months of maternity leave; however, I will receive just my basic salary for these three months, and it will be paid only after I return 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 of basic pay.

Is This Legal?

I have huge commitments. I was under the assumption that I would get my full salary for 3 months during maternity leave, like my friends who work in other companies. Now, it's a shock to learn that I will not get paid for 3 months.

Seeking Legal Advice

Is it legal not to pay the employee who is going on maternity leave? (I mean during maternity, not after 5 months). Please advise on this.

Regards.

Maternity Leave and Legal Rights in IT Companies

It is illegal. You are eligible to receive full pay for three months (12 weeks) on a monthly basis and not after you return and wait for an additional period of two months. In IT companies, such situations occur because they feel that labor laws are made for manufacturing companies and not for them. There are many concessions given to IT companies, but labor laws are the same across all sectors in India, and this is known to your HR person as well. However, they may create their own rules or are forced to interpret rules according to the decisions of the management. The management, on the other hand, feels secure that no employee will be hostile due to the fear of the skill registry of NASCOM.

Steps to Address Maternity Leave Issues

Now, regarding the situation you are facing, it is very difficult to provide proper advice since the reaction to the advice we give may have a negative impact on your career. The only possible way is to submit a claim in writing to HR and ask them to provide comments on it (whether benefits will be given or not as per the Maternity Benefit Act) and forward the same to the Labor Officer for intervention and appropriate action from their side. This may bring you results but will not guarantee a continued relationship with the company. Of course, termination can be delayed since during the receipt of maternity benefits, a woman employee should not be terminated, but it can be done at a later stage. Moreover, it will have a negative impact on your career as well.

Understanding Labor Laws and Employee Sacrifices

Everyone says that labor laws are made for the benefit of employees only but forgets the fact that in order to get the benefits and protection offered under various statutes, employees will have to sacrifice a lot, and sometimes it will be their career that is spoiled if they pursue it. Therefore, ultimately it will be the employers who gain!

Regards,
Madhu.T.K

Understanding Your Maternity Leave Rights

You are eligible for maternity leave of 84 days with full pay, and you are also entitled to a maternity bonus after submitting the necessary forms as per the provisions of the Maternity Benefit Act. Do not oppose the company officials; instead, try to convince them by presenting a copy of the Maternity Benefit Act, which is applicable to all industries except where ESIC is applicable. I believe this is their first case involving maternity benefits. Please draft an application accompanied by your medical certificate indicating your expected due date.

Regards

Very true! Under such circumstances/realities, it is very difficult even for upright and conscientious HR professionals to comply with and act fairly.

Warm regards.

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

I referenced the "Maternity Benefit Act," but they insist that it's company policy and management cannot deviate from it. I am currently at the client's place, not at the company's premises. My immediate contact is my HR, and I do not know anyone from the management. When I inquired with my HR, they avoided giving me any information about the management.

I was advised to write an email describing my situation so that HR could inform the management. Subsequently, they forwarded the email to higher management, who denied my request. I was not cc'ed in any of the email communications with the management, and when I asked, I was told it was confidential and could not be disclosed.

While they have no problem providing 3 months of maternity leave, the issue is that I will not receive any payment during that time, only the basic pay upon my return. This is insufficient for me as I have monthly ECS payments to make, and the basic pay won't be enough. Additionally, I have to manage pre and post-delivery expenses, making my situation very critical. Despite explaining all this and requesting at least the basic pay every month during my maternity leave, my request was denied.

The offer letter/appointment letter does not mention anything about maternity benefits; it is only detailed in the company's yearbook. This was how I learned about it, as I was not informed directly. Until now, I had assumed I would receive my full salary for 3 months.

The only resolution they proposed was to credit 3 months of basic pay immediately after I rejoin, which will not be beneficial to me. This situation will leave me financially strained with bounced checks, and my husband will have to manage my debts (mainly marriage loans, which are my responsibility), leading to a challenging situation for both of us.

As Madhu mentioned, I cannot escalate this to the Labor office, so I will need to plan an alternative course of action after my delivery.

Thank you once again for all your suggestions and replies.

Regards,
Dolly

Maternity Leave Payment Rules

There is a rule (I need to check the section) that clearly states 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 upon return. It is not required for the company to give monthly payments.

Regional Considerations

Where you are working is also important. If you are in the 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 actions that the court said were designed to discourage pregnancies among their female employees stationed in the USA.

Support from Family

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 assume) planned pregnancy. By carrying a guilty feeling on this, you will cause stress that will harm the health of you and your child. You need to get to a positive frame of mind as far as possible.

Clarification on Wages During Maternity Leave

Also clarified: Section 2(n) states that wages are gross wages, which include all amounts that would normally be payable except for overtime (which you can't get when you don't work), bonus, and gratuity. Therefore, their rule of paying only the basic wages is incorrect. You can quote the definition to them.

Definition of "Wages"

Section 2(n) defines "wages" as all remuneration paid or payable in cash to a woman if the terms of the contract of employment, express or implied, were fulfilled. It includes:

• Such cash allowances (including dearness allowance and house rent allowances) as a woman is currently entitled to,
• Incentive bonus, and
• The money value of the concessional supply of food grains and other articles, but does not include:

(i) Any bonus other than incentive bonus;

(ii) Overtime 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 currently in force; and

(iv) Any gratuity payable upon the termination of service.

Clarification on Maternity Benefit Payment

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. Out of the 12 weeks that you take leave, the part before the expected delivery date must be given 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. 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.