Areas of Service

HUMAN RESOURCES LAW (EMPLOYMENT AND LABOUR) EXPERTISE

Our Human Resources Law (Employment and Labour) practice provides advice and assistance on legal, tax and regulatory issues in connection with workforce management. In the Indian context, employment law includes a plethora of central (federal) and state specific employment statutes, administrative regulations as well as judicial decisions. Applicability of the statutes is contingent on multiple factors including the industry, nature of work done by the employees, strength of the workforce, remuneration, duration of service, etc.

Having witnessed the growth of new age industries and radical shifts in work culture and workforce management techniques, we have acquired expertise in addressing the challenges faced by organisations in complying with applicable laws.

Whether you need assistance with acquisitions, outsourcings, expansions or reductions-in-force, local or international employee relations, data privacy or data protection, local, cross-border or collective litigation, local or multi-jurisdictional compliance and risk management, we have the expertise and we can help.

We adopt a practical and business-focused approach in advising clients, so that the human resources and talent retention strategy of clients is implemented in the most effective manner, in compliance with the applicable laws and the ethics of the organisation.

We advise both domestic and international clients on complex regulatory and legal aspects of employment and labour law and enable our clients to be legally compliant. We are actively involved in drafting and/or reviewing employment documentation and advising on a wide range of labour law issues, including structuring of ESOPs, transfer of employees, employment termination and restrictive covenants in employment arrangements. We also advice on employment issues arising at the time of corporate restructuring, including mergers and acquisitions, outsourcing initiatives and reductions-in-force. We predominantly represent companies and their management on employment related projects and litigation.

“They're very responsive, practical and really knowledgeable." "They give a very practical service. They are easily accessible and the response time is fast." Chambers & Partners, Asia Pacific, 2015

Some of our accolades include:

• Nishith Desai Associates has been declared as the Most Innovative Indian Law Firm (2014/2015) at the Innovative Lawyers Asia-Pacific Awards by the Financial Times - RSG Consulting.

• Nishith Desai Associates has been declared as the Second Most Innovative Asia - Pacific Law Firm (2014) at the Innovative Lawyers Asia-Pacific Awards by the Financial Times - RSG Consulting.

• India Business Law Journal (IBLJ) 2015 has awarded us for Employment, Private Equity, Structured Finance & Securitization, TMT & Taxation.

• Chambers and Partners 2015: Ranked in Tier 1 for TMT, Tax and Employment.

SCOPE OF SERVICES

1. Employment Strategy and Documentation

The HR Law practice group at NDA assists clients in their overall strategy for recruiting and retaining employees. We assist clients in drafting and reviewing employment documentation including offer letters and employment agreements, confidentiality agreements, IP assignment agreements, non-compete and non-solicit agreements, training bonds, consultancy agreements, secondment and deputation agreements, severance and release agreements, etc.

Over the years, we have successfully incorporated industry best practices and customised to the requirements of our clients. We reconcile the 'at-will' employment and 'work-for-hire' concepts with Indian laws.

“Well regarded for drafting employment agreements, handbooks and HR policies. Chambers & Partners, Asia Pacific, 2014

2. Company Policies / Employee Handbook

Organizations often have a written code of conduct and policies, including those contained in the Employee Handbook. The handbook serves to communicate to its employees the organisation's mission statement, values and practices, as also supports the employment contract by setting out procedures, rules and regulations for the employees within the organisation in its daily operations including dealing with clients/customers.

The HR Law practice group at NDA provides specializes in drafting customized Employee Handbooks to suit the requirements of the clients. The handbook is structured to incorporate precise detailed clauses on standard employment practices including in relation to vacation / leave policies, prohibition of harassment, employment benefits, discipline and grievance, separation, confidential information, intellectual property rights, etc.

3. Labour Law Advise

Our advice extends to the applicability of various HR Laws in India, both Central and State, including the Industrial Disputes Act, the Employees' Provident Fund Act, Trade Unions Act, Payment of Bonus Act, Payment of Gratuity Act, Contract Labour Regulations, the state-specific Shops & Establishments enactments, etc. to name a few. We also advise our clients on applicability of HR Laws, the obligations and compliances thereunder, and the consequences of non-compliance, issues related to provident fund contributions, payment of gratuity, payment of bonus, superannuation/retirement benefits, termination of employment, hours of work, leave/ holiday entitlement, employee health and safety regulations, discrimination and harassment issues, etc.

4. Employee Benefits & Compensation Structuring

A key concern of structuring employee benefits and incentives is the tax implications on both the employee and the employer. We advise our clients on the structuring of a tax-efficient compensation package.

"... (NDA) possesses a buoyant human resources department that advises on employee benefits and the structuring of tax-efficient compensation packages." Tax Directors Handbook 2009, India

Through our expertise in employee taxation, we also provide legal and tax advice to senior level employees for negotiating the compensation structure. We also specialise in advising on taxation of internationally mobile executives.

5. Employee Stock Options & Share Plans

Nishith Desai was a part of the SEBI Committee that framed the SEBI (ESOP & ESPS) Guidelines, 1999

We advise clients on structuring their equity-based employee compensation plans to attract and retain best talent. We structure the assumption of stock options as part of M&A transaction, which is fairly complex in India especially in view of the several guidelines/regulations which regulate the issue of stock options by an Indian company or by a foreign company to Indian employees.

NDA's founder, Mr. Nishith Desai, was a member of the committee set up by the Securities and Exchange Board of India to evolve the guidelines in relation to employee stock options and purchase plans, which are now in operation in India

6. Employment Termination & Downsizing

India does not envisage an “at-will' employment relationship. We therefore advise clients on strategies for employment termination, downsizing and reduction in force. This includes advising on applicable labour laws and employment laws, apart from guidance on regulatory requirements mandated for employers. We understand that the interest of the employer should be well secured in the event of termination of the employee's employment, for which purpose we ensure that clauses on confidentiality, post employment non-solicitation, data protection are adequately drafted.

7. Employee Transfer

In cases where there is a transfer of one undertaking to another by way of merger/ acquisition/sale of assets or otherwise, issues such as the transfer of employees of the transferor to the transferee creates certain legal complications. We advise clients on the various labour law implications arising out of such transactions and assist clients in structuring such transactions in a manner so that the transfer of employment complies with all statutory requirements.

“Particularly focused on advising on employee transfers and terminations.” Chambers & Partners, Asia Pacific, 2014

8. HR Audit (Legal)

We conduct periodic HR Law audits for our clients. The audit typically encompasses appraisal of the level of compliance with applicable labour laws, taxation laws and corporate laws relating to hiring/ firing of employees, terms of employment, employee compensation, stock option plans, to name a few. It also includes review of the employment-related documentation and the policy and procedure manual of the company, especially with respect to such issues as confidentiality, assignment of intellectual property and non-competition. The legal HR Audit enables us to suggest measures for legal process re-engineering.

9. Expatriate Taxation, Social Security & Immigration

We represent our clients in employment related Indian immigration matters. Our immigration law assignments include advice to companies and employees who wish to come to India on deputation, secondment or on employment, advice on expatriate taxation etc.

Our firm has played an instrumental role in publication of a book titled ‘Compensating Mobile Executives – A cross country report on international salary apportionment arrangements – 2011’, which is a comparative law study involving 40 countries and provides an overview of tax related implications on non-resident employees who work in a particular country as well as on resident employees who are required to work or be present in other countries.

10. Employment Litigation

While a few years back employment litigation was not very prevalent, the scenario is undergoing rapid change in India. We have represented several clients in employment litigation cases. Our service includes advising clients on the litigation strategy, drafting and issuing legal notices, responding to legal notices, drafting claim documents representing the clients before labour courts and high courts, and coordinating with local counsel to pursue litigation in the appropriate courts across India.

 

CONFERENCES / SEMINARS

Team members have been actively participating as speakers/panelists at several global employment conferences, including:

• Seminar on ‘Are you doing enough to make your Workplace a Safe and Secure one?’ organized by Society for Human Resource Management (SHRM), March 2014

• Conference on ‘Sexual Harassment - Prevention & Redressal’ organized by Corporate Knowledge Foundation-IRIS Corporate Solutions Private Limited, January & March 2014 and February 2015

• Seminar on “Sexual Harassment of Women at Workplace” organized by National Association of Software and Services Companies (NASSCOM) in Mumbai, Pune, Bangalore, New Delhi, Hyderabad and Chennai, 2013

• International Bar Association Annual Conference - Tokyo (October 2014), Boston (October 2013) and Dublin (October 2012)

• Webcast on “Introduction to Indian Labour Laws and Best Practices for Employment Document” presented as a part of “Doing Business in India” event of www.hr.com, 2011

• International Bar Association Conference on Key Labour, Employment and HR Challenges faced by Businesses with a Global Workforce, New Delhi, February 2010

• Seminar on Non - Compete Law, Intellectual Property Rights & Employment Law in India, Mumbai, July 2010

• CII Seminar on Human Resource & Employee Relations - In the Context of Global Competitiveness, New Delhi (India), December 2009

• SHRM Annual Conference, Toronto (Canada), March 2009

• Conference of the International Bar Association, Buenos Aires (Argentina), October 2008

• "Essentials of Employment Law, Malaysia and Asia 2008, Ahrals, Malaysia, August 2008

• Littler Mendelson's "Employer", Littler Mendelson, Phoenix (USA), April 2008

• India Employment Laws: India, CCH (Wolters Kluwer), Singapore, March 2008

• Employment Law Asia 2008, Ahrals, Singapore, February 2008

This active level of participation in global HR Law conferences provides us the unique position to understand the global HR market and employment laws throughout the world. We, in turn, undertake all efforts to incorporate the best global practices while delivering high quality services to our clients.

 

PUBLICATIONS

Some of the publications our team has authored/ contributed include:

India Chapters:

• Cross Border Q&A Labour and Employee Benefits: Employee Share Plans Volume 2, 2010-11, 2011-12, 2012-13 and 2013-14, a PLC publication

• Contribution to Doing Business -2014, a World Bank initiative comparing business regulations for small and medium sized enterprises in 189 economies

• ‘Pension and Retirement Plans’ – Getting The Deal Through, 2013 published by Law Business Research Ltd, London, official research partner of the International Bar Association

• The Littler Mendelson Guide to International Employment and Labour Law, published by Lexis-Nexis; 2008, 2010, 2012, 2014 

• 'Business Transfers and Employee Rights', Lexis Nexis UK publication

• ‘Compensating Mobile Executives’ – A cross country report on international salary apportionment arrangements – 2011”, a comparative law study led by Nishith Desai Associates and No More Worries BV

• Global Counsel Handbook's Labour and Employee Benefits 2004-05 and 2010-2011, a PLC (UK) publication

Research Articles:

• ‘India’s New Law on Prohibition of Sexual Harassment at Workplace’, The Chamber’s Journal, March 2014

• ‘Implementing ‘Work from Home’ Policy’, Human Capital, February 2013

• ‘Social Security Agreements’, 3rd edition of International Taxation – A Compendium’ – The Chamber of Tax Consultants, India, April 2013

• ‘The Indian legal position on employee data protection and employee privacy’, International Bar Association's (IBA) Employment and Discrimination Law committee newsletter, March 2012

• ‘Trade Unions Act and State Laws provide legal protection to Trade Unions in India’; Society for Human Resources Management (SHRM) Legal Report, March 2011

• ‘Social Networking and Confidentiality’, Human Capital, August 2010

• 'Indian Labour And Employment Law Issues In Global M&A And Reorganizations', International Bar Association's (IBA) Employment and Industrial Relations Law Committee newsletter, April 2009

• 'Ensure Compliance with Employment Laws in India', Society for Human Resources Management (SHRM) Legal Report, October / November 2008

• Contributed to the India law related aspects of the SHRM Global Learning System (for the PHR, SPHR & GPHR certification)

 

RECOGNITIONS

• Recognized as Band 1 law firm for Labour & Employment by Chambers & Partners Asia-Pacific 2015

• Adjudged the winner of the Indian Law Firm Awards for its Employment & Industrial Relations Practice by Indian Business Law Journal in 2013 and 2015

• Recommended for our Employment & Labour Law Practice by the Practical Law Company, a UK based legal publisher

• Vikram Shroff has been recognized as a Band 1 lawyer by Chambers & Partners Asia-Pacific 2015

• Vikram Shroff has been inducted in International Bar Association's Employment and Industrial Relations Law Committee as a Membership Officer in 2015

• Vikram Shroff has been recognised as being among the world’s leading Management Labour & Employment lawyers by Who'sWhoLegal a Law Business Research publication, 2015

• Vaibhav Parikh has been recognized as leading lawyer for Labour & Employment by Asialaw Leading Lawyers 2015

• Vikram Shroff has been recognised as being among the world’s pre-eminent Management Labour & Employment lawyers by Who'sWhoLegal (2012 and 2013), a Law Business Research publication

• Vikram Shroff has been recognised as a subject matter expert on industrial relations by Society for Human Resources Management (SHRM)

• Vikram Shroff has been invited to be a member of the working group formed by IBA’s Global Employment Institute for a comparative project titled ‘Balancing Report: Strategic Trends in National Laws and Multinationals’ Policies on Work-Life Balance and the Implications for Human Resources Law’ (2012)

• Vikram Shroff has been selected as a member of the working group formed by IBA’s Global Employment Institute for the ‘Net Report’, a comparative project on legal issues on employees’ social media use (December 2012)

ndahr(at)nishithdesai.com