SYMBIOSIS LAW SCHOOL PUNE

CARE | COURAGE | COMPETENCE | COLLABORATION

LABOUR LAW II

INTERNAL I
ARTICLE

“LABOUR LAWS IN THE WORK-FROM-HOME ERA”

SUBMITTED BY –

NIMISHA SHUKLA
VIII SEM, BA.LL.B. (HONS.)
TH

ROLL NO. 336, DIVISION D

PRN – 18010125336
SYMBIOSIS LAW SCHOOL, PUNE

(M) +91 – 9419279357

(E) 18010125336@SYMLAW.AC.IN
 INTRODUCTION

No global event in the 21st century is one without economic implications and the outbreak of
Coronavirus was no exception to this. Among the many sectors that was affected by the
stringent lockdowns and distancing protocols, the employment sector took a serious hit. In
addition to creating a migrant crisis on a scale never seen before, the rules around the
pandemic can be credited with changing the face of the corporate working environment.
Traditional working environments are now slowly being replaced with automation and
digitalization; Information and Communication Technologies (hereinafter, “ICTs”) and the
increase in the number of digital labour platforms globally, has accelerated the uptake of non-
traditional work arrangements. The Work from Home (hereinafter, “WFH”) phenomenon,
very interestingly, only sped up this transition of making one’s home their office which was
already in motion before the pandemic, making way for a complete digital transformation.
The International Labour Organization (hereinafter, “ILO”) has given its view that the
pandemic has in fact initiated an “unprecedented experiment in working from home” and has
predicted that the results of what is being called the “great working from home experiment”
will unfold in the coming years.1

This article aims to look into the existing regulations in the India labour laws to
accommodate the need for WFH guidelines as it highlights the very need for such regulation
and measures that have already been accepted globally from which the Indian lawmakers can
draw reference.

1
Work From Home: Understanding The Gaps In India’s Regulatory Framework, SAMISTI LEGAL (May 18th,
2021), available at: https://samistilegal.in/work-from-home-understanding-the-gaps-in-indias-regulatory-
framework/.
 WORK FROM HOME CHALLENGES

The WFH setup at the advent of technology and accelerated by the pandemic has led to an
increase in the involvement and requirement of technology in the working class’s day to day.
As these technologies become more necessary and continue to evolve with time and the
competitive forces controlling our capitalistic society, the concern over an individual’s needs
to disconnect from them are all the more troubling. Individuals are becoming distant from
one another as they find it difficult to disconnect from their devices; the fact that these
devices now form part of our necessary “work culture” is all the more reason for people to
avoid disconnecting from them. In the employment sector, this constant level of connectivity
is especially troubling as it affects directly the employer-employee relationship, distorting the
separation of professional work hours from personal time. 2 A consensus also exists that
unpaid overtime work as a concept and as a common occurrence is substantially being caused
due to the influence of this involvement and reliance on modern technology.3

An overdriven developing economy like India already thrives on the idea of competition and
capitalistic forces make up for a lot of cut-throatism in 21 st century, the addition of
communication platforms such as smartphones and social media, allow professional work to
encroach into the private sphere whether it is by way of after-hours e-mails or texts from their
respective employers.4 Furthermore, scholars have noted that the fact that “employees are
constantly connected”5 creates both explicit and implicit expectation that employees remain
constantly connected to their jobs.6 The presence of this problem is global and is not
revolutionary in nature as its existence can be traced back to way before the pandemic.
Research in the area has suggested that employees who work after hours, which is most in the
WFH setup owing to the diminishing line between work and home, increase their total
amount of hours worked per week, suggesting that any work performed from home post work
hours is in excess of what employee would otherwise accomplish. 7 Social scientists have
gone ahead and analysed this phenomenon to which they have given the nomenclature of

2
Openyemi Akanbi, “Policing Work Boundaries on the Cloud” 127 YALE LJ 637, 638 (2018).
3
Ibid.
4
Kenneth G Dau-Schmidt, “The Impact of Emerging Information Technologies on the Employment
Relationship: New Gigs for Labor and Employment Law” U CHICAGO LEGAL F 63, 70 (2017).
5
Tanya Marcum, Elizabeth A Cameron & Luke Versweyveld, “Never off the Clock: The Legal Implications of
Employees' After Hours Work” 69 LAB LJ 73, 74 (2018).
6
Justin A Walden, “Integrating Social Media Into the Workplace: A Study of Shifting Technology Use
Repertoires” 60 2 J BROADCASTING & ELECTRONIC MEDIA 347, 348 (2016).
7
Supra note 1.
“presence bleed” wherein the process becomes such that professional work can “bleed” into
private time.8

The WFH setup also gives employees a false sense of control which is often looked like an
advantage of the mode however, they may be unaware that digital technology is being used to
objectify and control-manage them in this labour process. 9 Remote work using digital
technology tends to rely on and utilise computer algorithms and a review of such algorithmic
studies10 demonstrates how employers control-manage workers by “restricting and
recommending, evaluate workers by recording and rating, and discipline workers by
replacing and rewarding”. In addition to this, digital technology also allows the management
to know when workers are “away” and not at their computers and when they are “available”
in a productive state; this human-made binary of on-or-off state can “mechanize” employees
into feeling as if the available status is the consistent preferred state.11

8
Supra note 6.
9
Sheldon M. Bromfield, Worker Agency versus Wellbeing in the Enforced Work-From-Home Arrangement
during COVID-19: A Labour Process Analysis, CHALLENGES (2022), available at:
https://doi.org/10.3390/challe13010011.
10
K.C. Kellogg, M.A. Valentine & A. Christin, Algorithms at Work: The New Contested Terrain of Control, 14
ACAD. MANAG. ANN 366, 368 (2020).
11
Supra note 9.
 CONCLUSION: REGULATIONS DEVELOPED AND TO-BE DEVELOPED

Understanding that this issue is global, we must note how different jurisdictions have dealt
with this issue. While France has enacted legislation to limit an employer's ability to contact
employees outside of working hours,12 the United States of America has witnessed a rise in
lawsuits in which workers claim additional wages for time spent communicating outside
work hours.13 The modern definition of work in the American jurisprudence has been
articulated by the United States Supreme Court in the case of Anderson v. Mt Clemens
Pottery14 where the Court held that work occurs if the employee is “required to give up a
substantial measure of his time and effort.” “Substantial effort” as subsequent cases have
decided is determined by analysing three factors, namely, the degree of administrative
difficulty in determining the amount of time worked, the total amount of alleged time
worked, and the consistency in which the alleged work was performed. 15 The Case however,
also noted that if the activity which an employee engages in does not fit within this
framework, it will be deemed trivial, or de minimis and not liable for compensation.16

The Indian scenario has not yet seen any cases with regard to the inclusion of the WFH setup
in its labour laws, however, does show promise is making progress in the area. The Draft
Model Standing Orders for Services Sector 2020 is applicable to employers having more
than 300 workers and while this Draft model permits an employer to allow employees to
work from home on the basis of conditions discussed and agreed upon prior, it cannot be
termed as having enforcement capabilities as it does not define WFH and the underlying
regulations for it. The Code of Social Security 2020 does define home-based work as the
work which s carried out at the home of employees, however, again, does not encompass the
definition of Work from Home. Certain facts of WFH can be, however, attempted to be
addressed through this Code in addition to internationally set out legal principles.

The ILO, on January 2021, released a report titled Working from home: From invisibility to
decent work, addressing the concerns related to working from home wherein it emphasized
the role of the Government in playing a major role in protecting the WFH workers. This
report made strong recommendations of adopting policies into the national legislation as early
as possible and highlighted the need for a gender-responsive legal framework that aims at
12
Supra note 5.
13
Ibid.
14
Anderson v. Mt Clemens Pottery 328 US 680 (1946).
15
Jeffrey Brecher & Eric Magnus, “A Matter of Time: Managing Wage and Hour Risks in a Digitally
Connected World” J INTERNET L 2, 5 (2017).
16
Ibid.
providing equal treatment to all categories of WFH workers. The Indian government, like
many others, needs to legislate domestically to adopt these policies and bring forth change to
keep up with the evolving working sector.