Is It Fair for Companies to Ask Employees to Work on Sundays to Make Up for Election Day?

Can a company ask its employees to work on a Sunday to compensate for the holiday of the election day?

Election Day Leave Policy in IT Companies

The Election Commission of India has clearly stated in all newspapers that all IT companies must provide paid leave to employees on the date of elections/voting in their respective cities. However, there is no mention of any compensatory work in the statement. I request members and HRs to please let me know their views.

Regards,

A company can ask employees to work on the weekend in lieu of the election day holiday.

During my MBA and professional career in corporate houses, I faced this question repeatedly. Currently, as a student of CS under ICSI, I study different cases and corporate laws in detail, clause by clause, section by section. I spend 8-10 hours studying, in addition to taking care of business. I don't understand why this question is raised. I am trying my best to comprehend it from a managerial, financial, and legal compliance perspective. I hope that after completing my regular MBA and being a student of CA/CS, I will have the competency to grasp this critical issue.

What Do the Laws Say About Holidays?

Legally, there should be three mandatory paid holidays, namely:

1. Jan 26
2. Aug 15
3. Oct 02
4. Any specified day/date mentioned by the Government of India, its branches, or the Judicial system as per constitutional requirements, following the Constitution of India. For example, the government has the right to declare holidays during a national emergency like war. All companies/firms (PVT, LLC, Public, etc.) are required to comply with such instructions.

Working on National Holidays

We have observed that due to business needs, companies sometimes require employees to work during these holidays, especially in IT/ITES. The question is, can a company legally do this? (I have seen this frequently, working on national holidays like Jan 26, Aug 15, Oct 02 when I was at IBM Kolkata, working for double pay and enjoying fun activities for at least 30 minutes.)

Yes. Now, the question arises - how?

Say, for example, an employee has a monthly fixed salary of INR 22,000 and the total number of working days in that month is 22. So, the per-day salary in that month would be 22000/22 = 1000 (without considering the variable part).

Suppose the month is August, and the company requires employees to work on Aug 15th. Ideally, since August 15th is a holiday, paid leave should be provided. Whether the employee works or not on that day, according to the law, they must receive INR 1000 for Aug 15. Any deduction, in part or wholly, for absenteeism on Aug 15, if made, would be considered illegal. The employee has the legal right to challenge such decisions.

If an employee agrees to work on Aug 15 (not coerced by the employer, but voluntarily), they are permitted to do so. Since it is a paid leave by law, they will receive INR 1000 credited to their salary account in lieu of paid leave, in addition to overtime pay for the hours worked on Aug 15. If the employee works the full day, they will receive an additional INR 1000. Therefore, the total salary on Aug 15 would be INR 2000.

Overtime should be paid as per the clauses mentioned in the appointment letter. Forcing someone to work on Aug 15 is an offense. Working on a national holiday is entirely based on the mutual understanding of the employee and employer, more of a goodwill gesture. If an employee is unwilling to work even for overtime, they should not be pressured to do so.

Election Day as a Holiday

Election day is a holiday as directed by the Election Commission of India. All companies, whether LLC, PVT, or Public, are required to adhere to the Election Commission's guidelines. Violating this would mean interfering with someone's fundamental rights and duties as outlined in the Constitution of India. This also implies a challenge to the Election Commission, with no mention of compensating for work.

Who is Eligible for Leaves?

Only Indian citizens who have the right to vote on that particular election date. For example, if the office is in Kolkata and April 23, 2014, is the date of voting in Kolkata, then April 23, 2014, should be a holiday for all employees in Kolkata who will vote. It does not apply to employees whose residence is in Delhi or Birbhum, West Bengal, if the election date is different and they prefer to vote from a different location.

Can a Company Ask Employees to Work on Weekends or Sundays to Compensate for the Holiday Due to the Election?

No. An employer (firm, company, PVT company, LLC, Public) can request employees to work on Sundays/weekends, but it should be in accordance with the clauses in the appointment letter, regarding overtime. Therefore, the guidelines, procedures, laws, or rules followed during normal situations for overtime or work on weekends/Sundays should be followed. It should have no connection to "compensating for the holiday due to the election." Since working on weekends/weekly off/Sundays is equivalent to overtime, mutual negotiation for overtime must be followed here.

If an employer asks an employee to work to compensate for a holiday due to the election, it would be considered illegal.

Example:

Suppose April 23, 2014, is a holiday due to the election. Now, if the employer wants employees to work on April 27, 2014 (Sunday), they must follow the normal rules, laws, guidelines, clauses in the appointment letter, and procedures followed during work on normal weekends/Sundays. Such as paying overtime for working on Sundays/weekends. This should not be linked to compensating for work due to the holiday for the election. If any employee claims otherwise with evidence showing that the employer forced employees to compensate for the holiday due to the election, the employer would be violating legal compliance and could be legally challenged.

Regards,

Sovik B

MBA, HR and Finance

Managing Director

S.S. ENTERPRISE

Ph: [Phone Number Removed For Privacy Reasons], E-Mail: [Email Removed For Privacy Reasons]

Yes, if the government does not declare Election Day as a holiday, the company can request employees to work to meet customer production requirements. There is no objection to this; as a responsible employee, you must cooperate with the management when necessary.

I believe there is a confusion between a goodwill gesture and a legal requirement. The question is, the Election Commission has not mentioned anything about compensating leave for elections. So, I think, for the sake of discussion, 'Compensating leave for elections' should be avoided.

What has been mentioned is compensating work/production three days before or after the polling date by Mr. Pariwal, and that is correct. However, here again, we need to adhere to the normal rules, guidelines, and clauses in the appointment letter, such as working overtime, since there are no circulars stating that it must be done from any concerned authority. Technically, we cannot refer to it as 'Compensating leave for elections'. This creates a legal barrier.

Regarding elections, I believe the Election Commission of India possesses the rights to direct what needs to be done and what not. They even have the authority to override actions of central/state government machinery. Since the Election Commission has specifically mentioned providing leave on the polling day so that voters can cast their votes, I believe it holds equivalent weight to a circular issued by the labor department of the state to provide a holiday, at least in terms of authority, jurisdiction, and weightage.

A better option could be to exchange a 'week off' of a normal day with the 'Polling Date'. Isn't this a better solution?

For example, if the week off is on Saturday, and the Polling date is two days before, i.e., on Thursday, then make Thursday the week off instead of Saturday and make Saturday a regular working day. This is possible as per the law.

Don't you all think it's better?

Regards, Sovik B

This is a very interesting and knowledge-based query. The election date is nearing, and we have not received firm submissions from the seniors or other HR personnel regarding what they are following. In our location, it is declared as a paid holiday. As per the above posting, some may perceive it as a declared holiday and may instruct their employees to work on the holiday to compensate for it.

I would like to thank Mr. Pariwal for his email that he sent today. I respect Mr. Pariwal's feedback and would definitely take care of the same in the future. Somewhere I feel it's my moral liability to clear this confusion. Let's not make this rocket science. I hope Mr. Pariwal would agree with me and bless me.

The Question of 'Compensate the Holiday'

The question placed here is important, but the language selected is wrong - 'Compensate the holiday.'

If the objective is to get work done from employees that is pending or not done in the appropriate time on any week off/Sunday due to a leave provided for the election, it can be done. There is no second thought. The company can ask the employee to cooperate.

Why Has 'Compensate the Holiday' Created Confusion?

(That's why in my first posting, I have said I have failed to understand from which background this question is asked - HR, Managerial, Finance, Production, or Operation).

Compensating a leave means: If an employee is provided a paid leave, then they are bound to work for another day (week off/Sunday) with or without pay for work. This means a liability is created on the employee's end. This cannot be done under ordinary situations and is illegal in nature.

How Can the Objective Be Achieved?

1. Convert the polling date into a week off only for that week. Thereby, the week off will become a workable/productive day.

2. Make the polling day's leave as Paid Leave/Non-Paid Leave. Ask the employee to work for an additional day, week off/Sunday, which will be paid in nature or OT will be provided. Follow laws, guidelines, rules, and clauses in the appointment letter that you all follow under ordinary situations for work on the week off. This should be done on the basis of mutual agreement between employer and employee.

3. The steps provided by point 2 can only be done either before or after 3 days from the polling date.

Very Important:

Leave provided for the election can be paid or non-paid in nature - at the discretion of management. But if a worker/employee is working for an extra day, they must be paid for their work. Even if paid leave is provided for the election, the employee must be paid again for their work if they work on the week off/Sunday.

And yes, the employee is not liable to compensate the leave (means like bound to work, work without pay) under any circumstances. It's the employee's choice whether to work for an extra day or not. Or in other words, mutual negotiation between employer and employee should be done. If the employee and employer have no problem, then it's all right.

I hope it's clear now. Everyone can understand it, even a layman. Let's close this discussion here only.

Thanks and Regards,

Sovik B

Is it mentioned in any act that on the date of an election it will be a holiday? If yes, kindly provide the name of the act and section in which it is described.

Regards,
Abhishek Bhardwaj

Hi,

I am facing the same situation here in my company. We have elections on Thursday, and the company has asked employees to come on Saturday due to project criticality. However, employees are objecting vehemently. Please let me know how to handle it.

The Representation of the People Act, 1951:

The above Act is a central enactment that declares a holiday for all eligible voters working in any business, trade, industrial undertaking, or any other establishment on the day of a poll to the House of the People or the Legislative Assembly. The relevant provision is in Section 135B, which is reproduced as follows:

135B. Grant of paid holiday to employees on the day of poll.

(1) Every person employed in any business, trade, industrial undertaking, or any other establishment and entitled to vote at an election to the House of the People or the Legislative Assembly of a State shall, on the day of the poll, be granted a holiday.

(2) No deduction or abatement of the wages of any such person shall be made on account of a holiday having been granted in accordance with sub-section (1), and if such a person is employed on the basis that he would not ordinarily receive wages for such a day, he shall nonetheless be paid for such day the wages he would have drawn had not a holiday been granted to him on that day.

(3) If an employer contravenes the provisions of sub-section (1) or sub-section (2), then such employer shall be punishable with a fine which may extend to five hundred rupees.

(4) This section shall not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged.

Constitution of India:

Article 246(1) states that Parliament has exclusive powers to legislate under the Union List, i.e., List I of Schedule VII to the Constitution of India, while Article 246(3) states that a State Legislature has exclusive power to legislate under the State List, i.e., List II of Schedule VII.

Both the Parliament and the State Legislatures are given the right to legislate over elections, although Parliament’s right extends to legislating over the Central and State Legislatures, whereas the State may only legislate over elections to the State Legislature, subject to any central enactments. The relevant items in the respective lists are stated below.

List I (Union List), Item 72:

"Elections to Parliament, to the Legislatures of States and to the Offices of President and Vice-President; the Election Commission."

List II (State List), Item 37:

"Elections to the Legislature of the State subject to the provisions of any law made by Parliament."