Employment of Expats in India

1. Working hours in India are set under the following legislation:

• the Minimum Wages Act, 1948, for any person who is employed for hire or reward to do any work—skilled or unskilled, manual or clerical—in a scheduled employment with respect to which minimum rates of wages have been fixed;
• the Factories Act, 1948, for employees working in a factory;
• the States specific Shops and Establishment Acts, for employees working in a shop or a commercial establishment.

a.   Working Hours under the Minimum Wages Act, 1948

The normal number of working hours per day for an adult is 9 hours, and in the case of a child, four and one-half hours. Overtime must be paid as provided for under the Minimum Wages Act if individuals work longer hours.

All employees must receive a day of rest in every period of seven days. The day of rest is ordinarily Sunday, but the employer may fix any other day of the week as the rest day for any employee or class of employees. An employee may not be required or even allowed to work on a scheduled rest day unless he or she has or will have a substitute rest day for a whole day on one of the five days immediately before or after the rest day, provided that no substitution may be made that will result in the employee working for more than 10 consecutive days without a whole rest day.

These provisions do not operate to the prejudice of more favorable terms, if any, to which an employee may be entitled under any other law (including the Factories Act, 1948, as discussed immediately below) or under the terms of any award, agreement, or contract of service; in that case, the employee is entitled only to the more favorable terms.

b.   Working Hours under the Factories Act, 1948

Under the Factories Act, no adult worker may be required or allowed to work in a factory for more than 48 hours per week without payment of overtime. As regards daily work hours, no adult worker may be allowed to work in a factory for more than 9 hours a day without payment of overtime. Employees may work longer if they are paid overtime as provided for under the Act.

Each day, periods of work of adult factory workers must be fixed so that workers receive a rest interval of at least half an hour for every 5 hours of work.

Women may work in any factory, but only between the hours of 6 a.m. and 7 p.m.

c.   Working Hours under the Shops and Establishments Acts

Shops and Establishments Acts are state-specific legislation. Almost every state in India has promulgated this legislation to regulate the working conditions of the people who are employed in a shop or a commercial establishment in their particular territory. While details of the legislation may differ from one state to another, generally, the working hours prescribed for an adult worker are 9 hours per day and 48 hours per week. Typically, the Shops and Establishment Acts also provide that the distribution of a worker’s daily working hours should be arranged in a manner that the period of continuous work does not exceed 5 hours, and after a continuous period of work for 5 hours, there should be a rest period of half an hour.

2. Overtime Hours

a.  Overtime Hours under the Minimum Wages Act, 1948

According to the provisions of Section 14 of the Minimum Wages Act, if an employee whose minimum rate of wages is fixed under the Act works in excess of the number of hours constituting a normal working day, the employer must pay the employee for every hour or part of an hour so worked at the overtime rate fixed either under the Act or under any other law of the appropriate government, whichever is higher.

There is no specific provision in the Minimum Wages Act setting a maximum number of overtime hours that may be worked.

b.   Overtime Hours under the Factories Act, 1948

If employees are covered under the provisions of the Factories Act, those provisions apply instead of the provisions of the Minimum Wages Act.

If a worker works in a factory for more than 9 hours in any day or for more than 48 hours in any week, the worker is entitled to wages at twice the ordinary rate of wages.

According to the Factories Act, state governments may make specific provisions with regard to the maximum hours of overtime permitted, provided the total number of hours in a week, including overtime, does not exceed 60, and the total number of overtime hours for any quarter of the year does not exceed 50.

c.   Overtime Hours under the Shops and Establishment Acts

As stated above, every state has its own Shops and Establishments Act, and the details may differ from one state to another. However, Shops and Establishments Acts typically provide that the total number of weekly working hours should not exceed 54, including overtime hours. In addition, workers generally are entitled to twice the normal wages for overtime hours.