Hi,
I work in an IT company for 2 years, and I am 7 months pregnant right now. My HR says I can avail 3 months of maternity leave; however, I will get just my basic salary for three months, and 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 of basic pay).
Is it legal? I have huge commitments. I was under the assumption that I would get my full salary for 3 months during maternity, like my friends who work in other companies. Now, it's coming as a shock that I will not get paid for 3 months.
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.
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2I work in an IT company for 2 years, and I am 7 months pregnant right now. My HR says I can avail 3 months of maternity leave; however, I will get just my basic salary for three months, and 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 of basic pay).
Is it legal? I have huge commitments. I was under the assumption that I would get my full salary for 3 months during maternity, like my friends who work in other companies. Now, it's coming as a shock that I will not get paid for 3 months.
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.
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It is illegal. You are eligible to get full pay for three months (12 weeks) on a 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 labor laws are made for manufacturing companies and not for them. There are lots of concessions given to IT companies, but labor laws are the 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 proper advice since the reaction of proper advice that we give may have a 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 the Maternity Benefit Act) and forward the same to the Labor Officer for intervention and appropriate action from his side. That will bring you the result but will not guarantee a continued relationship with the company. Of course, termination can be prolonged since during the receipt of maternity benefits, a woman employee should not be terminated, but it can be done at a later stage, at least. Moreover, it will have a negative impact on your career also.
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, the employees will have to sacrifice a lot, and sometimes it will be their career that is spoiled if they go for it. Therefore, ultimately it will be the employers who gain!
Regards,
Madhu.T.K
From India, Kannur
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Now coming to the situation you are facing, it is very difficult to give you proper advice since the reaction of proper advice that we give may have a 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 the Maternity Benefit Act) and forward the same to the Labor Officer for intervention and appropriate action from his side. That will bring you the result but will not guarantee a continued relationship with the company. Of course, termination can be prolonged since during the receipt of maternity benefits, a woman employee should not be terminated, but it can be done at a later stage, at least. Moreover, it will have a negative impact on your career also.
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, the employees will have to sacrifice a lot, and sometimes it will be their career that is spoiled if they go for it. Therefore, ultimately it will be the employers who gain!
Regards,
Madhu.T.K
From India, Kannur
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You are eligible for Maternity Leave of 84 days with full pay, and you are also entitled to 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.
From India, Pune
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From India, Pune
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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
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From India, Delhi
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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 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.
Dolly
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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.
Dolly
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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, it's very difficult for an employee to get their lawful dues when the company is bent upon denying them.
What is your location (in India or overseas) and where is the registered office of the company?
Is the client company where you are/were working a foreign company, incorporated in a 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)?
It seems the company is aware of the legal technicalities involved, especially the extent and limitations of Indian labor legislation, and is exploiting the situation.
You need to continue to be proactive to secure the legal dues not only for yourself but for others in a similar situation.
I assure you, if you persist until the end, your case may turn out to be a case law and bring relief to many in the future.
Warm regards.
From India, Delhi
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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, it's very difficult for an employee to get their lawful dues when the company is bent upon denying them.
What is your location (in India or overseas) and where is the registered office of the company?
Is the client company where you are/were working a foreign company, incorporated in a 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)?
It seems the company is aware of the legal technicalities involved, especially the extent and limitations of Indian labor legislation, and is exploiting the situation.
You need to continue to be proactive to secure the legal dues not only for yourself but for others in a similar situation.
I assure you, if you persist until the end, your case may turn out to be a case law and bring relief to many in the future.
Warm regards.
From India, Delhi
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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
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From India, Bangalore
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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 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 some actions that the court said were designed to discourage pregnancies among their female employees stationed in the 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 that 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
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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 some actions that the court said were designed to discourage pregnancies among their female employees stationed in the 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 that 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
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Also clarified: Section 2(n) says wages are gross wages, which includes all amounts that would normally be payable except for overtime (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.
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:
(1) such cash allowances (including dearness allowance and house rent allowances) as a woman is currently entitled to,
(2) incentive bonus, and
(3) 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.
From India, Mumbai
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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:
(1) such cash allowances (including dearness allowance and house rent allowances) as a woman is currently entitled to,
(2) incentive bonus, and
(3) 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.
From India, Mumbai
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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.
From India, Mumbai
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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.
From India, Mumbai
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Hi Raj Kumar,
Thank you for your reply. To answer your questions, I am in India, Chennai. My company is registered in India as well as in the USA.
I get my salary credited to my salary account by my company. My client is an international client with business operations all over the world.
My company is aware of all legal matters, which is why they avoid mail communication in this regard. Even the Vice President of the company asked me to meet the HR in person to address the issue instead of continuing with emails when I included him in my email chain.
I notice there are other disputes ongoing in the company. One of my colleagues resigned from the job and served a 3-month notice period as per company policy. It has been almost 2 months since he served his notice, but he still hasn't received his relieving letter. HR is requesting an additional 2 months to release the relieving letter and final settlement. They are also withholding the last month's salary from the notice period.
There is no employer contribution to the PF. So many things are happening... Since I work at the client's place, I am only now becoming aware of all these issues. I am very concerned about what other surprises I may have to face.
Thank you.
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Thank you for your reply. To answer your questions, I am in India, Chennai. My company is registered in India as well as in the USA.
I get my salary credited to my salary account by my company. My client is an international client with business operations all over the world.
My company is aware of all legal matters, which is why they avoid mail communication in this regard. Even the Vice President of the company asked me to meet the HR in person to address the issue instead of continuing with emails when I included him in my email chain.
I notice there are other disputes ongoing in the company. One of my colleagues resigned from the job and served a 3-month notice period as per company policy. It has been almost 2 months since he served his notice, but he still hasn't received his relieving letter. HR is requesting an additional 2 months to release the relieving letter and final settlement. They are also withholding the last month's salary from the notice period.
There is no employer contribution to the PF. So many things are happening... Since I work at the client's place, I am only now becoming aware of all these issues. I am very concerned about what other surprises I may have to face.
Thank you.
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Dear Member,
In this case, I will not speak much on rules or about your company as a lot has already been said. I would suggest that you discuss the issue of loans with your husband. I am 99.999% sure that he will cooperate, manage, and won't mind your responsibilities.
I have some knowledge about your loan EMI situation, i.e., if you approach your bank or lenders about your problem and situation, they will definitely give you relaxation for those 3 months and will extend/postpone the EMI for that period. Though they will charge an interest component for this extended period.
From India, Kharar
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In this case, I will not speak much on rules or about your company as a lot has already been said. I would suggest that you discuss the issue of loans with your husband. I am 99.999% sure that he will cooperate, manage, and won't mind your responsibilities.
I have some knowledge about your loan EMI situation, i.e., if you approach your bank or lenders about your problem and situation, they will definitely give you relaxation for those 3 months and will extend/postpone the EMI for that period. Though they will charge an interest component for this extended period.
From India, Kharar
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Office Order regarding Maternity Leave for Contractual employee as per Amendment Act 2017.pdf
Why did this talented employee leave.doc