This article is written by Ramanuj Mukherjee, CEO, and Kashish Khattar, Team LawSikho.
2020, sparred by a pandemic, can be seen as a year which permanently changed how we live and interact with each other.
We have named it the new normal.
And there is a need to name it, because we can see huge shifts in how we work, interact and coexist with each other.
What has changed the most is the way we do our jobs, forced to work remotely or work with a sparse staff.
Every business on the planet is forced to rethink how they get the work done.
Reimagining also leads to efficiency and innovation, which we badly need in these times of massive economic recession in order to recover sooner than later.
Today we are going to talk about the people who manage other people in organisations, the human resource management teams.
A recent Harvard Business Review article underlines the importance of HR professionals and how their roles are set to change and become more important.
If CFOs were the ones who gained importance after the 2008 financial crisis, it will be the CHROs who will become really important C-level executives in companies post-COVID.
Let’s take a quick look at the biggest challenges they are staring at today.
The HR department will have to dabble with quite a lot of unique legal issues and challenges in these times:
Hiring, performance management and retention for remote work
Remote work has opened a new dimension of possibilities.
You can now hire anyone in the world, and you are dealing with a global talent pool, subject to restrictions of language barrier.
That means hiring may become better as you are not relying on the local talent market alone.
That also means having to compete with the most deep pocketed recruiters across the nation or the world as well.
Basically, a lot to figure out for the HR team.
Say, if they hire talent from another country, is that legal? Is there any extra paperwork required? What about payroll? What about taxes?
There are no laws that restrict the current global pool of remote workers from working in other countries. Some countries will incentivize this, others will try to penalise outsourcing of work to foreign remote workers quite soon once the public catches up with what is going on and starts demanding protectionism.
And the entire time, the HR policy has to respond to all these opportunities, setbacks and changing realities.
It is not only hiring, retention and performance management of remote workers that are challenges that are not familiar for most HR teams, and even they have to work out how they are going to deal with these questions.
We are on a learning curve, but this is really, really early. We can only predict where things may be headed.
Productivity tracking and employee surveillance – how much employee surveillance for checking productivity is alright?
They are at home. Are they working? Will they meet deadlines? Are they falsely reporting details of work? If they make a mistake, will we discover it soon, or much later? How do we know what they are really doing?
Performance tracking in remote work mode is no joke. Especially for organizations that relied on a physical environment to make their employees productive.
On the other hand, employees are always complaining about ‘on’ culture. How can organizations help employees to manage their time and productivity better?
How do we know if you are working overtime or not? How do we determine if you are eligible for additional payment for working more hours, and how much?
How do we know if employees in the field are efficiently using their time?
There are many difficult questions.
This has led to the massive popularity of performance tracking software that continuously and automatically checks when the employees are working and when they are idle.
Remote working culture has become mainstream and seems that it will be the norm for quite some time now. Flexible work schedules may be preferred by the employees but software which monitors performance has become a norm in many organizations.
However, how much tracking is permissible? When does such tracking become illegal surveillance? What are the data protection implications?
HR managers are now being forced to reckon with the nascent legal issues as well.
With no data and privacy law as such in place, it would be on the HR to maintain a strong sense of ethics and moral standards in their tracking policies.
It becomes quite important for an HR professional to understand technology and data laws to create in-house policies.
How do we keep data safe?
The need for data literacy and data privacy has never been this important for an HR professional.
Until now, the HR roles have been regarding tracking productivity, creating diverse and inclusive work environments and teams, setting targets and goals and measuring progress, apart from promoting a culture that supports growth of the organization.
However, now, HR professionals could be expected to collect and collate data regarding employee surveys, learning management systems and trackers to give a big picture to the management. The role could ask for interpretation of data and looking at the big picture.
Further, Data protection has become a real concern for every HR manager in the workplace now. As the Work from Home model seems like the new normal, the HR department is now responsible for safekeeping the personal and sensitive data of its employees.
A robust data protection mechanism has to be put in place to protect sensitive data. Right now only the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 aka the SPDI Rules of 2011 have to be compiled in storing, processing and obtaining data of employees.
There are other various data points which are yet to be protected under the law such as travel plans, history and non-work activities of employees. These can be asked by the employer without getting worried about the privacy standpoint as per current Indian data laws. Still, protection of such data is becoming increasingly important for the HR team, especially in absence of specialised data protection teams.
This is where knowledge of technology law and data protection provisions becomes highly relevant for an HR manager in the present times.
How do we maintain confidentiality when everyone is working from home and anyone can record screens?
There is a really big concern of privacy and confidentiality when it comes to the remote working model.
There are various measures that will have to be taken to keep the company data in safe hands by the employees by making sure:
- Securing the printing and shedding arrangements in the household of employees;
- Reviewing and following up on policies related to password strengths, auto logins;
- Identifying what all devices are used by all the employees for official business and note their ids;
- Making policies to retain corporate and confidential information about employees and promoters which are not accessible to the public;
- Formulating policies for devices that have gotten misplaced or are no longer in use;
- Setting up security reminders to help employees remember that they have confidential information with them and it needs to be secure at all times;
- A strict policy on what all websites, apps can be accessed from the remote servers and devices that belong to the employer;
- Policy to delete confidential information from devices when it is no longer required; and
- Making up policies for shutting down remote workspaces at the end of the day and to limit unauthorised access.
Even then, we can expect cases of serious breach of confidentiality going ahead given the situation. HR teams need to learn how to deal with breach of confidentiality and need to have policies in place that protect the interests of the organization.
Laying off, pay cuts and non-performing employees – legal issues
The biggest legal issues that will arise due to the lockdown will come from the economic effects of this new normal. The Ministry of Home Affairs issued that employers should pay wages to all workers and without any deductions. If not followed, this will attract legal ramifications from the government. Further, this circular did not make a distinction between workmen, non-workmen, employer, outsourced worker, employer, a principal employer which only means that the circular wanted its ambit to be really wide.
You would, in fact, need the consent of the employee to fire him in these times!
HR managers are wondering if it is within the rules to ask employees to go on furloughs, cap salaries, withhold performance related pay and reconfigure jobs to make employees quit. In any case, as companies are going bankrupt or trying to come back from the brink of bankruptcy, what can they do?
Even in companies that have no financial issue, what should HR managers do with non-performing staff?
How can companies that are struggling to keep afloat pay for various ancillary benefits of employees?
Some companies are now asking employees to hand in their resignation letter just to be safe and employees don’t have the means or the incentive to go to court right now.
In any case, it is a grave situation and HR managers are at the front line. Understanding of employment and labour laws have become crucial at these times for HR managers.
Changing employment policies and contracts as per the new reality
Another critical thing that the HR managers will have to work on is changing all the employment policies and contracts as per the work from home model or the hybrid model of WFH for a few days and being present in the office for the rest.
A lot of strategies and policies would have to be made to onboard new people right now as well as for management of existing workforce. Policies such as data protection policy, leave and attendance policy, performance incentive policies etc need to be changed and HR managers are being asked to work on these.
The same applies to contracts. Most of the employee contracts need a revamp. Companies want to introduce clauses that deal with pandemic, giving them additional protections in such situations, while employee unions are negotiating for rights that protect them during such exigencies. In the middle are the HR managers, who must come up with solutions acceptable to both sides.
How would labour and employment laws apply in the WFH model that it never contemplated?
For instance, how do we determine attendance when people are working from home? What are their working hours? If they are injured during their work, working from home, will the employer be responsible? Can the employer hire people as freelancers rather than employees now that they are working from home?
The International Labour Organisation has released a whole document on how employers should address this issue and the duties, responsibilities of workers and employers in this unprecedented situation.
Work from Home, as the guide states, is how a worker fulfils his essential responsibilities using Information and Communication Technology. Employers should assess and identify the job functions, assess connectivity of the employees, assess the worker’s safety, assess mental health concerns etc.
It would also be a good time to assess and formulate policies for professions which can not work from home.
The HR manager would have to look out for the industries they work in and understand what kind of circulars and notices have been issued for that specific industry. For instance, the IT sector and the allied service providers were given a relaxation to work from home till 31 December. Other businesses have been issued various notifications that they have to comply with.
How can LawSikho help?
We have been working really hard since the lockdown to create and generate courses that are relevant for professionals and address the latest challenges. HR managers have been on our radar for quite a few years, we have published a whole free book on how HR managers should handle legal concerns. The future CHROs would now be expected to know a bit more about technology law too.
Further, we also have an exclusive labour and employment law course which can be very valuable for HR professionals in these testing times. We have already trained hundreds of HR managers already, and you could be the next to join our network and brainstorm with them!
Further, check out these other courses that are open for enrollment at present:
- If you are interested in corporate governance, you should check out the diploma in Companies Act, Corporate Governance and SEBI Regulations;
- If you want to get that in-house counsel job, go check out the diploma in Business Laws for In-House Counsels;
- If Industrial and Labour Laws interest you, go take a look at that diploma course;
- The Intellectual Property, Media and Entertainment Laws will be booming in the coming times, if you’re inclined towards that career, check out that diploma course;
- If you’re sure that your niche lies in M&A, Institutional Finance and Investment Laws (PE & VC transactions), go check out that course;
- The Cyber Law, Fintech Regulations and Technology Contracts is in dire need of good young talent if that is what ticks for you, go check out that course; and
- Every young lawyer should check out our diploma course in Advanced Contract Drafting, Negotiation and Dispute Resolution.
Check out our other executive courses which can be helpful:
- We have a certificate course in Advance Corporate Taxation;
- You can also check out this course for Insolvency and Bankruptcy Code;
- If Trademark, Licensing; Prosecution and Litigation interest you, we have a course for that;
- LawSikho also teaches Competition Law, Practice and Enforcement in a course;
- Technology Contracts will be essential to every business in the future, you can check out that certificate course; and
- Knowledge about Banking & Finance Practice: Contracts, Disputes & Recovery is essential for every BigLaw layer, you can check that out too.
Have you heard about our webinars?
LawSikho offers amazing webinars that you can attend and learn from, with no charges, every day. Now we are even giving certificates to those who attend the full webinar. Check out some of our past webinars here: https://www.youtube.com/c/LawSikho/
While you can see past recordings of webinars on our YouTube channel, to participate in one personally is quite a different experience, as you can ask questions and interact with such amazing speakers and even other attendees. How can you attend these webinars in person? Sign up over here.
Get in touch with LawSikho
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