Asked to work beyond office hours? Know your rights under new Labour Code

A rather unique phenomenon in Indian workplaces is the boss asking the employee to finish the pending task by working beyond the usual office hours. While some lucky employees might never encounter this kind of situation, things can shift quickly depending on certain factors.

For those who find themselves in this situation (working past the mandated hours), these requests usually come verbally instead of through official channels. Some might say the employee can just say no to the boss and head home, but that’s easier said than done, especially if the employee has a family to support, home loan EMIs, school fees, and other non-negotiable expenses.

Malak Bhatt, Founding Partner, NM Law Chambers, says that in practice, especially in the Information Technology sector, private corporates, and MNCs, employees, and even those in managerial or supervisory roles, are routinely asked to work beyond official hours through informal verbal instructions. This is deeply normalised in Indian corporate culture.


However, "normalised" does not mean "legal."

According to Bhatt, employees in India cannot be forced to work overtime. Overtime work should be voluntary, and employers must consider specific factors before permitting it. When instructions are only verbal and no such record is maintained, the employer is in violation of documentation requirements.

However, Bhatt points out that while the employee's position is legally strong on paper, practically it is weak without evidence. The instruction not being in writing itself is a risk for the employer, not just the employee. Without written authorisation, the employer cannot easily prove that overtime was legitimately sanctioned, and the employee can claim it was compelled.

In this article, employees who face this kind of situation get to know what they can legally do in such situations and what the new labour code says about this.

What does the new labour code and state labour laws say?

Bhatt explained to ET Wealth Online that the primary statutes governing working hours and overtime for private companies in India are:

• The Factories Act, 1948: Sections 51, 54, 55, 56, and 59: Applicable to factories, it caps daily work at 9 hours and weekly work at 48 hours. Provides that work exceeding 48 hours per week or 9 hours per day must be paid at double the ordinary rate of wages.
• The Occupational Safety, Health and Working Conditions (OSH) Labour Code, 2020: Section 27: Lays down uniform rules for determining overtime entitlements for workers across establishments, subsuming 13 older labour laws including the Factories Act, 1948. It requires overtime to be compensated at twice the worker's ordinary rate of wages, with payment released within the relevant wage period.
• State-specific Shops and Establishments Acts: Applicable to offices, infotech companies, shops, and service companies. Each state has its own version (Delhi Shops & Establishments Act, Karnataka Shops and Establishments Act, Maharashtra Shops and Establishments Act, etc.), all capping working hours and mandating overtime pay.
• Industrial Employment (Standing Orders) Act, 1946 requires employers to define working hours, shift timings, and overtime in certified standing orders. Verbal instructions that routinely override these written orders are legally problematic.

What can the employee do legally?

According to Bhatt, the employee has the following practical remedies:

• Document everything immediately. Save WhatsApp messages, emails, calendar invites, or any other digital trail of instructions. Even if instructions were verbal, a follow-up email summarising what was asked, creates a paper trail.
• Raise a grievance through the Internal Grievance Committee (mandatory for establishments with 20+ workers under the OSH Labour Code).
• File a complaint with the Labour Commissioner or Labour Inspector of the relevant state. Employees have the right to file a complaint or take legal action if they believe their overtime pay rights have been violated.
• Approach the Labour Court under Section 33C (2) of the Industrial Disputes Act, 1947 for recovery of unpaid overtime wages, if the employee qualifies as a "workman".
• For non-workmen (managerial staff), the recourse is through the civil court under breach of contract or unjust enrichment principles.

Employees in supervisory positions are not entitled to overtime pay

According to Bhatt, the employee is entitled to overtime wages at double the regular rate once they exceed 8–9 hours per day or 48 hours per week, regardless of whether the instruction was verbal or written.

Bhatt says: “Where an employee works beyond 8 hours in a day or exceeds 48 hours in a week, the additional hours qualify as overtime. Such overtime must be remunerated at a rate not less than twice the employee's normal wages and paid within the applicable wage cycle.”

Exception: Managerial and supervisory employees: Managerial or supervisory personnel are often classified as exempt employees. Under the Factories Act, 1948, individuals employed in a managerial or administrative capacity, or those in a supervisory role earning above a certain threshold, are not entitled to overtime pay. This is a significant carve-out that many Indian employers exploit.

Legal defence employer can cite

According to Bhatt, the employer can argue that

• The employee is a "manager" or "supervisor" and therefore exempt from overtime provisions.
• The employment contract contains a clause about working "as per business requirements", a common boilerplate in Indian employment agreements.
• Working beyond hours was voluntary or was part of the role's inherent expectations.