EMPLOYMENT LAWS FOR THE DIGITAL AGE – INDIA

This article is written by Saveri Sourabh Sharma of NMIMS Kirit P Mehta School of Law of 4th Semester, Intern at legal Vidhiya

INTRODUCTION

The COVID-19 epidemic has simply expedited the transformation of how we work that the digital age has already brought us. Non-traditional employment arrangements are growing increasingly prevalent as automation and digitization replace conventional labour processes. Work from home (WFH), which has become a widespread practice, is one such arrangement. With new technology and working patterns like remote work and the gig economy becoming more common, the digital era has significantly altered the job environment. Therefore, new employment rules are required so that they may take into account these contemporary realities.

The digital age has transformed the way people work, and it has led to the emergence of new employment practices and working arrangements. In India, the employment laws for the digital age are still evolving, and it is essential to ensure that they are robust enough to protect the rights and interests of workers and employers alike. The purpose of this research paper is to analyse the legal framework for employment in the digital age in India, including remote work, the gig economy, privacy and data protection.^[1]

REMOTE WORK

Working remotely, commonly referred to as telecommuting or telework, is doing so from a place other than an office. Numerous advantages come with working remotely, such as more flexibility, cheaper and faster commutes, and a better work-life balance. However, it also brings up concerns with workers’ compensation, tax, and wage and hour rules, as well as other areas of employment law.

The Industrial Disputes Act of 1947^[2] largely governs the legal foundation for remote labour in India. The Act offers a number of rights pertaining to employment, including regulations on working hours, overtime compensation, and termination practices. The Act does not, however, directly address remote employment, which has caused considerable ambiguity and anxiety for both businesses and workers.

To guarantee that remote employees are properly protected by the law, a number of issues must be resolved. Since remote employees may be found everywhere in the globe, defining the jurisdiction of the employment laws is one of the biggest issues. To resolve these jurisdictional concerns and guarantee that distant employees have sufficient legal protection, the government must provide a clear legislative framework. However, when workers are located in another state or nation, remote labour might have legal and financial repercussions for employers. Employees who work remotely are often governed by the rules of the state in which they are employed, which might differ greatly. Employers may unintentionally be held responsible for a variety of state benefit programmes or laws, including those pertaining to paid leave, the minimum wage, necessary disclosures, various pay statement obligations, etc.^[3]

Making sure remote workers get the same benefits and protections as conventional workers is another difficulty. This includes having access to retirement benefits, workers’ compensation, and health insurance. To guarantee that remote employees get these benefits and protections, the government must create laws and regulations.

The Indian government has recently made efforts to encourage remote employment, including releasing recommendations for firms on how to manage remote employees and making sure that remote workers are given suitable working conditions and safety precautions. To guarantee the rights and welfare of remote employees are safeguarded, the Ministry of Labour and Employment released a circular in 2020 encouraging companies to create a remote work policy.

The administration has also suggested modifications to the labour rules that would deal with remote employment. The formation of a social security fund for gig workers and platform employees, including remote workers, is outlined in the Code on Social Security, 2020^[4] which is now being considered by the Indian government. The Code also suggests providing office-based employees with the same benefits and legal protections as remote workers.^[5]

GIG ECONOMY

The phrase “gig economy” refers to a labour market where occupations are temporary contracts or freelance work rather than full-time employment. In India, the gig economy has been expanding quickly because of internet platforms like Ola, Uber, and Zomato that link gig workers with clients.

The Gig Workers and Platform Workers (Social Security and Welfare) Code, 2020^[6] is the primary piece of legislation that governs the legal environment for the gig economy in India. The Code calls for the creation of a social security fund for platform and gig workers, which would provide advantages including accident insurance, maternity benefits, and old-age security. Gig workers do not have the same legal rights and benefits as employees under the Code, which does not recognise them as employees. Some have argued that gig workers should be treated like employees and get the same benefits and protections, making this a divisive topic.

“A person who performs work or participates in a work arrangement and earns from such activities outside of traditional employer-employee relationships” is the definition of a gig worker in India.^[7] Currently, the Occupational Health, Safety, and Working Conditions Code, 2020^[8] does not apply to gig workers. The new Labour Codes of 2019 do, however, acknowledge gig workers and provide some protection^[9]. Several governments, including Rajasthan, have said that they want to pass legislation to safeguard gig workers.^[10] Provisions for gig workers are also included in the Social Security Code. Overall, even if there are rules in place to protect gig workers in India, more thorough safeguards are still required.^[11]

The Indian government has recommended changes to the labour regulations that would deal with this problem. The Indian government is presently debating the Code on Social Insurance, 2020, which would provide gig workers the same legal rights and benefits as office employees, including the minimum salary, social insurance, and the ability to establish unions.

PROTECTION OF DATA AND PRIVACY

New privacy and data protection problems have emerged as a result of the digital era. Employers in India now have access to an unprecedented quantity of personal information on their employees and workers because of the growth of remote employment and the gig economy. Personal data including names, addresses, phone numbers, and financial information might be included in this data.

The Information Technology Act of 2000^[12] has a few specific clauses that deal with data protection, however, India does not yet have an entirely complete data protection legislation. Employers are obligated under Rule 5(8) of the IT Rules^[13] to maintain the privacy of sensitive personal data or information (SPDI) of their workers and to refrain from disclosing it to any outside parties. Employee permission is also required before employers may collect, use, or disclose their SPDI.

The Personal Data Protection Bill, 2019^[14] is the main legislation covering privacy and data protection in India. The Indian parliament is now debating the Bill, and it is anticipated that it would shortly become law. The Bill calls for the creation of a Data Protection Authority, which would be in charge of implementing the laws governing data protection.^[15]

CHALLENGES

The problem of remote work is one of the main obstacles the digital technology presents. It may be challenging for businesses to keep an eye on their staff and make sure they are putting in the necessary hours as more individuals choose to work from home. New rules and regulations are now required to safeguard both companies and workers as a result of this. For instance, several states have passed legislation requiring firms to provide their remote employees the same benefits as their office-based employees.^[16]

The problem of data privacy is one more difficulty that the digital era presents. There must be regulations protecting this data since more businesses are gathering and keeping information about their workers. To safeguard people’s privacy in the European Union, laws like the General Data Protection Regulation^[17] (GDPR) have been passed.

OPPORTUNITIES

The digital era has its issues, but it also offers numerous possibilities for both companies and people. People may now work from anywhere in the globe, for instance, thanks to the growth of remote work. People who reside in places with few work options now have new opportunities thanks to this.

The employment of technology in the workplace is a further chance provided by the digital era. Employers may keep an eye on their staff members using technology to make sure they are putting in the necessary hours. As a result, workplace productivity and effectiveness have grown.

CONCLUSION

As a result of remote labour and the digital era, employment rules in India and the USA have changed. While there are still issues with India’s legislative structure for remote work, many other nations, including India, have more employee-friendly employment rules than the USA. Data on labour laws from the 1970s through 2021 is provided by 117 nations’ comparative legal regulation of digital employment^[18]. Employers may be affected by remote work’s legal and tax ramifications, particularly if workers are located in another state or nation. To guarantee compliance with employment rules in both nations, employers must be aware of these developments.

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^[1] Lenzen, F. (2020) The impact of digital transformation on employment law, Business Going Digital. Available at: https://www.businessgoing.digital/the-impact-of-digital-transformation-on-employment-law/ (Accessed: April 20, 2023).

^[2] The Industrial Disputes Act, 1947, Act No. 14 Of 1947.

^[3] Implications of “work from anywhere” – when Remote Workers Cross State Lines, SPARK. Available at: https://www.adp.com/spark/articles/2022/06/implications-of-work-from-anywhere-when-remote-workers-cross-state-lines.aspx (Accessed: April 20, 2023).

^[4] The Code on Social Security, 2020, Act No. 36 of 2020.

^[5] Jha, S. and Bhattacharyya, U. (2022) Work from home: Understanding the gaps in India’s regulatory framework, Times of India Blog. Available at: https://timesofindia.indiatimes.com/blogs/voices/work-from-home-understanding-the-gaps-in-indias-regulatory-framework/ (Accessed: April 20, 2023).

^[6] The Code on Social Security, 2020, Act No. 36 of 2020.

^[7] Rajkumar, M. (2022) The law for gig-workers in India, Nyaaya. Available at: https://nyaaya.org/guest-blog/the-law-for-gig-workers-in-india/ (Accessed: April 20, 2023).

^[8] Occupational Safety, Health and Working Conditions Code, 2020, Act No. 37 of 2020.

^[9] Labour reforms for Digital India (2021) The Financial Express. Available at: https://www.financialexpress.com/opinion/labour-reforms-for-digital-india/2214975/ (Accessed: April 20, 2023).

^[10] Bhatia, G. (2023) A new deal to protect India’s gig workers? Hindustan Times. Available at: https://www.hindustantimes.com/opinion/a-new-deal-to-protect-india-s-gig-workers-101679143442849.html (Accessed: April 20, 2023).

^[11] Saraswat, T. (2023) Laws governing gig economy in India, Khurana And Khurana Advocates and IP Attorneys. Available at: https://www.khuranaandkhurana.com/2023/03/02/laws-governing-gig-economy-in-india/ (Accessed: April 20, 2023).

^[12]  Information Technology Act, 2000,  Act No. 21 of 2000, Act of the Indian Parliament.

^[13] Rule 5(8),  Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

^[14] Personal Data Protection Bill, 2019 (withdrawn).

^[15] Prakash, A. and Murthy, K. (no date) Data Protection and Employee Privacy, International Comparative Legal Guides International Business Reports. Global Legal Group. Available at: https://iclg.com/practice-areas/employment-and-labour-laws-and-regulations/india (Accessed: April 20, 2023).

^[16] Sil, P. (2022) Perspective: Employment laws in India – challenges, changes and the way forward, Lexology. Fox Mandal. Available at: https://www.lexology.com/library/detail.aspx?g=4beef791-e0c9-4ee8-9acf-2bc743d029a7 (Accessed: April 20, 2023).

^[17] General Data Protection Regulation, Regulation (EU) 2016/679.

^[18] Deakin, S. et al. (2023) Comparative legal regulation of digital employment, Digital Futures at Work Research Centre. Available at: https://digit-research.org/research/research-projects/comparative-legal-regulation-of-digital-employment/ (Accessed: April 20, 2023).