This article has been written by Priya Gala, from Jindal Global Law School, Sonipat.
The Speaker: Avik Biswas, a former graduate from WBJNUS, is currently a Partner at IndusLaw.
The Host: Ramanuj Mukherjee is the CEO and Founder of LawSikho, SuperLawyer and iPleaders.
A major area of concern that has arrived due to Covid-19 is the vagueness. People are facing this challenge where there is an uncertainty regarding the time for people’s payment. The employees can be paid when the production is started and there is a lack of revenue and many companies’ are shut and out of revenue streams during the lockdown. There is news in the industry regarding people being laid off or employees being asked to take a pay cut or take mandatory holidays. Although these are done as a mutual agreement between the employer and the employee, there are significant questions about how they will be treated if an employee chooses to go to the court later. There are also concerns about the liability of the businesses and a lot of employees are being concerned about the ways in which they can protect their job. The airline’s industry is in such deep trouble that nobody knows how long it will take for them to recover post-COVID crisis. Another important question is that whenever air travel resumes, how will it be financed? Many airlines company are already under stress and wondering how to take care of their crew at the cost of their own peril.
During the Covid crisis is the employment law changing?
The speaker believes that is changing. Every e-practice area is going to see some change because the entire economy is significantly going to change in the near future. It might not be long term but among all that the practice areas which are affected the most affected remain employment law. If one looks at the global regulations, they are on a specific contract. In this contract, the employer is in touch with their employees they can see, review, monitor and track progress. the employee can also be in touch with the management. The traditional models of doing business in most sectors has to change the pandemic has forced companies across all sectors to rethink the way they do business and especially the way they engage with their own employees. One cannot do business be it a profitable one or not, in any scenario unless one has control of their employee. The pandemic has brought that change and one can see a lot of change in employee engagement.
For instance, one of the big change that is already being witnessed is a lot of companies are consideration of reduction in cost. This is because the pandemic has taught them that there are jobs which can be done from home or outside the office. Now, they realise that work can take place without being physically present in a space provided by the employer. Thus, a lot of cost reduction in real estate is being apprehended. When real estate cost is being reduced, it means less there will be less space and even lesser day to day interaction with employees in the post lockdown world. The speaker thinks that in the next couple of weeks or maybe even earlier a lot of other big companies including the biggest company TCS which is even bigger than the Indian Railways, shall want its employees to work from home which is also preferred by most employees because it provides them with a lot of flexibility.
Is working online going to become mainstream?
It is funny and iconic. The premise today has changed completely because what was not normal earlier is now normal. Earlier, working from home was an option. Employees used to welcome it because it was sometimes very convenient as they would not have to travel, like in India, every developing state would have traffic. However, it is not a problem anymore. Working from home was a good option earlier but today work from home is not an option but a compulsion.
Yes. the norms would continue because the pandemic has taught us many things. However, in terms of working, the ways of working have affected everyone irrespective of the sector. In almost every sector, efficient work can be done from home and most of the employees have begun to realise how important it is for the economy’s benefit. Too many companies have their entire employment policy or productivity policy that revolves around being able to survey people within their office. However, just because somebody spends 14 hours in an office that does not make them hardworking. The number of hours on the desk in the premises of the employer does not indicate how good an employee or worker is or how optimal their work is.
What changes did you implement when you started to work from home?
I had to install a line pass management so I could delegate, track and set everything so it could be in one place. Additionally, had to train his entire team. This is one level of tracking delegation which is non-invasive.
What is the speaker’s take on technology surveillance? How does the employer track productivity of his employees in a non-invasive way?
There are a lot of factors and there is a continuous argument in background. However, the first factor is that all the employers should be explained what exactly the surveillance software does and what kind of data is attracted. There should be an explanation about the kind of information that the employer’s server is taking from the employee and once consent is given it is legal. It is basically a contractual obligation. The only way to stop this is through the government’s rule. Currently, there are some limitations. For example, an employer cannot ask about the employee’s medical data. There has to be a justifiable connection between the information that one is getting from the employee and the information one is making use of.
Is there any law for data protection or apprehension for the same?
The bill is pending but in the next year probably a lot more prosecution will be witnessed. A lot more case law on the subject because unlike North America, the jurisprudence in India has not developed when it comes to employee data and privacy in the wider construct of data privacy. India does not have as much jurisprudence unfortunately and a lot of these concepts are new to Indians. New does not mean literally, they have been here for the last 6 months. However, if it is compared to the other parts of the world, India is taking baby steps.
Since the employees have access to client data can they take it home instead of keeping it in the office?
The standard of data security and number of people that had tried to obtain it after spending a significant amount of money and effort during the developing process has gone for a toss. Everybody is working from home. Earlier even if the CEO wanted to work from home, they had to take the access card and every other necessary thing. The previously available information control is not available anymore. Due to the pandemic, suddenly, everyone is working from home and in some cases, they had to take machines to work from home. This has impacted data security and how the company takes care of securities.
Employers are rightfully petrified of data breaches with client data. A few measures are taken from the legal standpoint now. The policies will more tighten now. Policies related to, guidelines, employee policy, internal policies, all will be stringent than they used to be. In the post Covid world, a lot more technology will be about the hardware. There will be a lot more technology which will be installed either on the employee’s system or the employer’s system. There are two things to it because many employers will have to bring their own device policy.
Which sectors Covid-19 has affected?
There are large industries which have been completely shut including but not limited to restaurants, movie theatres, airline, sports industry, film industry, etc. All of these have completely stopped hence there is a huge number of jobs in the business that have completely disappeared and there is no visibility on when they will resurface. However, certain industries will revive soon. For example, international travel airlines, it is well known that airlines are a big employer, they cannot shutdown because this industry has highly trained people who are very skilled and very specialised. The airlines have lakhs of workers who are unable to generate income seeing but this cannot go on forever. If airlines shutdown they would have to restart back up at some time and the industry definitely won’t go bankrupt. The focus should not be limited to the airline’s industry because many other businesses are suffering like movie theatres, restaurants, etc. The basic premise would be that all sectors are affected and it goes without saying that there are very few sectors which are seeing an uplift.
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