Tag Archives: Business

The right time for labour market reform is now

In my first job out of business school with Hindustan Lever, as Area Sales Manager I had a team of over 20 unionized salesmen. I ran a Voluntary Retirement Scheme in my first year and then again in my third year by which time we were down to half the original team size. Yet we introduced new brands in the market, grew our sales and in general did well as a team.

In my third year I took over a small new business of hot beverage vending for Lipton (at that time a division of HLL). The business was small but growing rapidly as we expanded our city coverage. In Sales, Distribution and Service we had about 50 people. Of this the number of direct Hindustan Lever employees was 2. The rest were all outsourced, contract or distributor’s employees.

I then moved to Infosys in the US and over my 11 years there, hired scores of employees onto the company’s US payrolls. I also had to let go of some people for performance or other reasons. At all times, I was acutely aware that I myself was an ‘At Will’ employee. I could be fired with two week’s wages without giving a reason. As long as the reason was not discriminatory (race, sex, religion etc.) I could not bring legal action upon the company.

My experience with the vastly different labour environment in both India and the US has driven home a very important lesson – a business exists to make money for its investors, not to provide employment. And that is, paradoxically, the best way to generate employment.

Let’s take a look at how India’s labour laws distort the business environment and harm employment and employees:

1. It discourages capital investment – particularly in service oriented industries. Investing capital means taking risks. Market risk – the risk that the business may not succeed – is a risk that ‘comes with the territory’. In most countries, investors know that if their business fails in the market, they close down the business, sell off the assets at knocked-down prices, book the loss and take the remaining capital to some other investment opportunity. However, in India, failure, or a downturn, in the market also means that you are still saddled with the payroll costs because you can’t restructure or layoff anybody. You can’t exit the business because employees will lose jobs. That’s something investors don’t have to deal with in most countries. You look at so many rusting factories in every major city in the country where the factory owner has not been able to layoff employees even when the networth of the company has gone down to zero, and you wonder – what a colossal waste of assets. You also wonder –  what do future investors think when they see these rust-buckets? More likely than not it’s – ‘That could be my investment 10 years from now.’

2. It provides no incentive for raising productivity through automation. Look at all the government offices or offices that have unionized staff like banks. To the last one, they opposed computerization. Why? because it could do the job faster and so it would reduce the number of jobs.

Yes it will and that is a good thing. Doing more work with fewer people raises productivity. Productivity raises incomes. The developed world’s prosperity is entirely linked to higher productivity. Also higher productivity creates the surplus (or the profit) that can be invested to create more jobs.

3. If you want to produce a quality product or service it needs carrots AND sticks. With an employee who is not performing, you train, you mentor, you put them on Performance Improvement Plans. But in the end, the employee needs to know that if his performance does not improve he can lose his job. Without this freedom for businesses to manage for performance, it may be possible to compete against companies who are similarly hampered, but it is a clear disadvantage in the global market.

4. It pushes employment generation into the informal sector. In my second stint at Levers I would have loved to hire people directly into the company instead of outsourcing critical functions like Sales. With the Levers brand name as an employer we would have got great talent which would have been better for the company. However, Levers would not do that for a new business that could have failed leaving them with employees they wouldn’t know what to do with. So all of the hiring was done by outsourced contract firms. Did these employees get the PF and benefits they would have got at Levers? I doubt that very much. I don’t think these contract firms even paid any taxes since they were probably classified as Small Scale.

In summary, the current labour laws in India distort the business environment to where it reduces employment generation by discouraging investment, reduces income growth by discouraging productivity increases, reduces quality by taking away the freedom to manage for performance and pushes employment generation into the informal sector.

Whenever I bring this up with people in industry in India, I am given many reasons why this is not a problem. Someone says ‘Only 20% of my workforce is unionized, I just work around them’. Another one will say ‘If you really want to fire an employee for performance, it can be done.’ But most of all the reason I get is ‘But the economy is doing so well why do we need to think about redundancies and labour flexibility?’ On the contrary, it is because the economy is doing so well that this is the right time for labour reform.

I believe this is the most important reform that government must now address. However, this is also the most difficult. Dismantling industrial licensing was like a walk in the park compared to this. With the government dependent upon the CPI(M) to stay in power makes it almost impossible to do major reforms. But major one-shot reforms aren’t the right answer anyway. There should be a 10 year road map on labour reform. But starting now. Let’s begin the discussion.

Street Power

The recent fiasco in France holds many lessons for democracies everywhere.

France has this strange combination of a thriving corporate industry and high unemployment especially amongst youth. The culprits here are France’s rigid labour laws which make it almost impossible to dismiss or layoff employees. Companies therefore prefer not to hire. If they have to, they use temporary workers. Since older employees can’t be fired easily, unemployment hits the youth. Much of the unemployment is among the children of immigrants which ultimately was the cause of rioting in France a few months ago. People with no jobs are more likely to riot – they have time on their hands and nothing to lose.

The government in France, with the best of intentions, decided to fix some of these problems to regenerate employment amongst youth. But they could not suddenly change labour laws across the working population. If layoffs were permitted across the board, sure, growing companies would start hiring young people, but there would also be a lot of older workers laid off and out of jobs. So the government decided to make it easier to fire only young workers in the first two years after they join.

Big mistake. Within days, massive student and youth protests were organized across the country. Colleges shut down because all the students were in the streets protesting against what they were calling a law unfairly targeting young people! The government first said it was willing to negotiate the time period – make it 18 months instead of 2 years. In the end, Jacques Chirac just withdrew the bill, in effect dashing the Presidential hopes of his trusted luitenant Dominique de Villepin who was the author of the bill. So were all students against the new bill? No. Last week they were interviewing a law student from the Sorbonne on BBC. The student was being asked about the law and the protests. She was against the protests and for the law. She didn’t like the fact that the colleges had been shut for the past 4 weeks and who knows what would happen to her final exams. But more importantly, she thought that the new bill would generate employment for the youth! She also said that none of the economics and law students of her university were in the protest marches.

I think the new bill would have worked. Not that the French government didn’t deserve the shellacking it got. They have nobody to blame but themselves for making France into an insular, inflexible place to do business. But really, this bill didn’t have a chance. Why? For two reasons:

1. The rationale for the new law is not easy to explain. It is not obvious that making it easier to fire young workers will result in higher employment among the same workers. I can imagine myself trying to explain that to a 3rd year medieval history student. Even if I knew French, I don’t think I could. On the other hand, the opposition can easily spin it the other way portraying it as an evil law designed to protect older workers or even designed to keep immigrant youth from keeping good jobs. Here I don’t just mean the Opposition in Parliament. Every change has opposition to it simply because someone is going to get hurt by the change.

2. The opposition to the law had Street Power. The people who were in favour of the new law like the Sorbonne law student and her friends, did not.

Cut to India. Labour flexibility, for decades, has been the one reform that no politician wants to touch. It is hard to believe that if you are the owner or manager of a company, your company can make losses, go bust and lose its entire net worth, but you can’t restructure your workforce. Capital treads softly where labour is inflexible. There was a time when there was talk of an Exit Policy for sick companies. A very unfortunate choice of name, if you ask me. The opposition (trade unions) quickly positioned the Exit in Exit Policy to be the exit of employees. ‘Hire and fire’ was another colorful phrase they used. The government had to bury the whole thing.

But its now resurfacing. You hear snatches of statements made by the PM and FM about the need for labour flexibility. Although they’ve picked a better name this time, I don’t like the government’s odds of passing any substantive legislation on this matter. Why? because of the same reasons that the French government failed.

How do you explain the rationale of labour flexibility to Mr. Godbole who is a teller in a bank? Mr. Godbole, we plan to make it easier to fire people such as yourself because this will encourage capital investment which will generate more jobs. I can just see Mr. Godbole’s eyes glazing over. Before he gets angry. Even Mr. Godbole can understand that making it easier to fire him is not good for his pension. Self interest is a great motivator. When it comes down to Godbole’s job security vs. more employment in the country, Godbole knows which side of his toast is buttered. And finally, Godbole is part of a union. He has Street Power. His union can call a strike, do a dharna and if it comes down to it, burn a few buses. The stakes are very high. And a burning bus is an arresting sight on TV.

The challenge of sound economic policy making is that often doing the right thing benefits a silent majority, but hurts a vocal minority. In some cases the vocal minority can make their voice heard. In others they can take their campaign funding elsewhere. You need money to run elections. You need votes to win them.

I do think that one of the most important reforms that the Indian economy can benefit from is bringing labour flexibility. This is the best time to do it when economic growth is strong. But I won’t be holding my breath waiting for it. Not while the govenment depends upon the support of CPI(M).

Too much of a good thing

The patent law in the US is one that the country is justifiably proud of. Over decades it has nurtured and rewarded inventors for inventing things that improve the lives of their fellow beings by granting the inventors a limited time monopoly over the uses of their inventions.

But it seems like the pendulum has swung too far to the other side. The range of innovation that is now addressed by patent law is vast and extends to things like business methods. The duration for which the inventor has monopoly rights to exploit his invention keeps going up (now 17 years).

Michael Crichton  (of Jurassic Park fame) recently wrote a piece where he talks about the need to reign in the patent law. In a recent ruling a federal court ruled that an existing patent that simply links elevated homocysteine to vitamin B-12 will stand. Just to be clear, this patent is not about a novel test to check for elevated homocysteine. It is simply the causal link between it and B-12, which is a natural phenomenon in the human body. And the court is allowing the patent on it.

Earlier this week, Netflix sued Blockbuster for patent infringement. The patents are on its business methods of unlimited rentals with no late fees and a ‘range of automated interaction with its customers’. Now I am no friend of Blockbuster and actually think Netflix has reached its dominant position in online DVD rentals through grit and gumption. They deserve every bit of what they have achieved so far. But do they deserve 17 years of untramelled access to the online rental market for some hohum ways of interacting electronically with customers? I don’t think so. An earlier and bigger brouhaha on a similar award of a business method and software patent was Amazon’s 1-click ordering.

These may be one-off exceptions and don’t necessarily prove anything. But if you look at the facts, US patent law (and other IP laws like copyright laws) have become looser, more wide-ranging and give the owner of the patent longer exclusive protection. This, it is claimed, encourages innovation.

But it doesn’t. All innovation is accretive. All creativity is remix. Great inventors stand on the shoulders of inventors before whose inventions allow them to see further. Restricting the use of an ever-widening range of patents for longer reduces innovation because new inventors will not have free access to the inventions. Businesses will spend too much time trying to figure out what to patent or how to side-step others’ patents.

In some industries like healthcare, the upfront time and costs of FDA approval make it hard for the inventor to commercialize a patent quickly. But in most of the world of commerce, 17 years is many lifetimes. The speed of business is faster than at any other time. A shorter period of patent protection should be very doable. Jeff Bezos had some very good suggestions back in 2000 when the 1-click ordering patent controversy broke.

The patent law needs some serious attention from Congress. Otherwise, be prepared to see poorer inventors and richer lawyers.

New Bombay or Renew Bombay

A couple of weeks back I spent a day in Navi Mumbai with a friend. Every time I go there I am elated by what I see there – a great city in the making. But I am also saddened. Is the only hope of urban India to build new cities? Are today’s cities doomed?

For those not familiar with it, Navi Mumbai is a 344 sq. km area on the mainland next to Mumbai. It was developed with the objective of decongesting Mumbai, which was (and still is) the land of promise in India – a cross between LA and New York with its Bollywood and Dalal Street. Unfortunately, it is a strip of land largely surrounded by the sea and its growing population had no room to expand.

CIDCO (‘we make cities’), the organization that was entrusted with the task of developing Navi Mumbai has done an all around fantastic job. It not only planned and developed the land, it also undertook much of the housing construction there, when no builders thought it would be worth their while. CIDCO continues to plan and develop and run civic services in Navi Mumbai. The results are fantastic and are noteworthy in three seminal ways.

One, Navi Mumbai is a planned city. It is laid out with what I am sure is a Master Plan behind it. It reminds one of the Chandigarh in my school days with numbered sectors and roads intersecting at right angles. Two, the infrastructure is remarkably good – roads, bridges, rail, optic fiber…it’s all there and well maintained. The administration actually runs a surplus and at this time the sale of land must be so profitable for it that investing in very good infrastructure is feasible.

But the most visible difference between Navi Mumbai and Mumbai itself is the almost complete absence of illegal construction and slums. Enforcement of property rights is complete. And that is what is amazing.

I see a great future for Navi Mumbai. There are big corporates like Reliance that are making big bets on Navi Mumbai. I think that is good for Navi Mumbai and for Mumbai itself. Mumbai can’t handle its urban crisis itself, so a helping hand from a satellite city should be welcome.

Cities like Mumbai and Bangalore are crumbling under the pressure of rapid growth. But growth is really a handy excuse. Its not like you couldn’t see it coming. Its just that it was nobody’s  problem. Unfortunately, urban development is a long cycle endeavor. Developing urban infrastructure with foresight is a waste of time for an elected government. Its benefits are not seen by the electorate in time for the next elections. On the other hand urban development is a most lucrative opportunity for corrupt politicians and bureaucrats. Planned development that benefits future administrations versus builder driven development that lines ones pockets today – the choice is easy. Even if one is an honest administrator, doing the right thing will require you to fight so many vested interests, why not let sleeping dogs lie?

Which is what saddens me. Is the difference between Navi Mumbai’s rise and Mumbai’s meltdown a matter of new versus old? Or is it the difference between governance by an elected government and a state corporation (CIDCO)? Either way, the odds are stacked against today’s Indian metros. We need strong leaders and able adminstrators. And citizens who care.

Technology and Democracy

In the last two weeks much has been said about the actions of Google, Yahoo, Cisco and Microsoft in China that are apparently aiding the Chinese government in repressing dissent. In the congressional hearing Congressmen, playing to the galleries, subjected representatives from the four companies to some pretty intense questioning. When politicians ask questions in a public hearing that is being televised they are more interested in making political statements and less in the companies’ answers to the questions. Rhetorical questions like ‘how can you sleep at night?’ which was one of the questions, can be translated as ‘Voters in my constituency, I am concerned about freedom of speech around the world, an American value that I know is dear to you.’

The American press, in general, has found the companies to be at fault. This is not surprising given that the media is the biggest commercial beneficiary of free speech. You’d expect them to be less balanced about something that threatens their raison d’être.

So are the four technology companies at fault for aiding the Chinese government curtail freedom of speech? I think this is a complex issue that does not lend itself to a snap judgment. What the four tech giants were doing was obeying the law – the Chinese law. Not complying with China’s law, would have harmed their business interests in China and perhaps the well-being of the company’s senior officials in China. It was lawful and pragmatic. Is that so bad?

It could be. A company’s management often faces choices that may be all legal, but are not all equally ethical. Some of those choices may violate the stated values of the company. In a rapidly evolving industry sometimes the laws have not ‘caught up’ with the state of evolution of the industry. In such cases, very often the industry will come up with self-regulatory mechanisms. For instance, in the early days of the e-commerce boom, customer data privacy was a big issue that was first tackled through self-regulatory mechanisms before laws could be enacted. E-mail spam went through the same cycle. In these cases, ‘good’ business behavior emerged before the governing laws were framed. Similarly, some commentators say that American businesses adopted a self-imposed economic boycott of South Africa in the days of the apartheid. This was well before the US government and the UN mandated a boycott.

China, however, is not South Africa. The stakes are much higher. We are talking about a country that will soon become the second largest economy in the world. I can just picture the management of Google on an investor conference call saying that they had decided to pull out of China because complying with Chinese laws on censorship would put them in conflict with one of Google’s values (‘Don’t be evil’?). It would be ugly. Guaranteed.

Then there’s the question – is what they are doing really ‘evil’? If so, how evil? On a scale of 1 to 10 where would you put Yahoo aiding the Chinese government in identifying Falun Gong web-site owners? On that same scale, where would you put the US government asking Google to hand over usage data related to terrorist like activities (I guess they want to know about anyone searching for ‘build a nuclear bomb in your garage’)? How about if the US government asked Google to hand over search phrases and click-stream data on suspected terrorists? To Google’s credit they have staunchly refused to do this. The matter is now in the courts.

Obeying the laws of a country is has binary states. You either do or you don’t. Being ethically or morally right is not binary. There are vast grey areas. And when the stakes are high like they are in China and you are managing a publicly listed company it is not easy to take the high ground.

What could make it a lot easier is if the US government stepped in and made some rules here. Like the Foreign Corrupt Practices Act, maybe there should be a Foreign Abetting Repression Act which prohibits American companies from collaborating with repressive governments. I see serious implementation problems here, but that’s what Congressmen are good at – legislating on complex matters. Such a law would make it a level playing field, so Yahoo wouldn’t have to worry that if they took the high ground in China, Google would eat their lunch. These four companies are great companies and I’m sure that given the chance they would do the right thing.

After all, the softest pillow is a clear conscience.

Infosys getting the attention of class-action lawyers

In another development it seems like my old employer Infosys,
like TCS, has also caught the attention of the class-action trial lawyers. Some
law firm seems to be soliciting interest on the internet from Infosys employees
who, in the past have worked overtime in California and have not been paid
overtime. Interestingly, if you search for ‘Infosys’ on Google, the top-most
sponsored link is from this web-site. Someone obviously thinks this is worth
the trouble.

 

Interestingly, IBM has a similar overtime class-action
lawsuit brewing. Many law firms are behind this one, including Lieff Cabraser,
the firm suing TCS. So Infosys is in good company on this one, with IBM.
Unfortunately, that is the only good thing you can say about the situation. A
lawsuit like this, if indeed it materializes, can be expensive, distracting for
management and can damage the company’s reputation.

 

The claim itself, that the company’s employees were asked to
work overtime without payment, is not going to get more than a shrug, at least
in the Bay Area. Silicon Valley runs on Jolt Cola and other higher forms of
caffeine that allow IT workers to minimize sleep and maximize work. Whether its
IBM, Infosys or the latest start-up, IT workers in general put in more than 8
hours of work a day. Before we start feeling sorry for them, we should remember
that an IT worker is well paid and in-demand. His skills are highly
transferable in a huge global market for IT workers. I don’t believe he needs
the kind of protection a unionized auto worker has (and see what that’s done to
Detroit) – neither in the US, nor in India.

 

I do hope the Infosys overtime ‘fishing expedition’ fails.
Otherwise, it will be bad news all around – for IT services companies, for
clients and yes, for employees as well.

Class action lawsuit against TCS

Last week was a pretty interesting week for the business of global business
– our focus in this blog. Google, Microsoft, Yahoo and Cisco were raked over
the coals in a congressional hearing for aiding censorship in China. More on
this later. First let’s look at the class action lawsuit against TCS in
California.

An Indian employee of TCS America sued TCS for ‘unjustly
enriching itself by requiring all of its employees in the U.S. who are not U.S.
citizens to endorse and sign over their federal and state tax refund checks to
Tata’. The law firm involved, Lieff Cabraser is a well-known plaintiff’s law
firm that pursues class-action lawsuits and has quite a track record doing it.
It regularly features on the National Law Journal’s ‘Plaintiffs’ Hot List’.

A law firm specializing in class-action lawsuits takes no
upfront fees from its clients (the plaintiffs – in this case the TCS
employees). It works for a cut of the settlement that the plaintiffs get. Since
they are dealing with individuals, they could get as high as 30% of the
settlement. Since this is an all or nothing game, the law firm will be very
careful in picking their lawsuits – the target should have deep pockets and
there should be a reasonably good chance of winning the case. Once they sink
their teeth into something they are very hard to shake loose. All of this is
bad news for TCS.

The news on the lawsuit has few details. It seems like TCS
had contracts with Indian employees working in the US that allowed TCS to take
the tax refunds from the IRS (US tax authorities) back from the employees. To
the American public this will sound totally egregious. So why would TCS do
this?

My guess is that TCS had good intentions. They probably
wanted to guarantee a certain post-tax income to their Indian employees in the
US. The amount of tax one pays in the US can vary widely depending upon not
just your monthly income but also the duration of your stay (if it is less than
a year), which state you are resident in and dozens of other federal and state
tax rules. The employee’s tax can vary widely depending upon which client they
are assigned to and the duration of their engagement. So (TCS perhaps thought)
why not relieve the employee from worrying about all this? Why not guarantee a
post tax income to every employee? To do that TCS would have to be able to take
employee tax refunds back from employees if the refunds pushed the employee’s
income including the refund over the promised post-tax income.

Noble intentions, but they seem to have had unintended
consequences. I hope TCS resolves the matter quickly and satisfactorily. PR is
a major weapon for trial lawyers. If this thing goes all the way, they will
drag the Tata name through the American press. There will be collateral damage
to everyone in the Indian offshore industry. I hope it doesn’t come to that.

Company structure – Cross border issues

When we set up our company we went through some very detailed thinking on how to structure the company. Our business model involved research operations in India but our markets were going to be largely in the US and other developed markets outside India. We ended up incorporating in the US with a wholly owned Indian sub, which is kind of the vanilla solution, but in the process went through a decision process that may be interesting to other entrepreneurs.

Some people we talked to had set up a corporate structure that was designed for tax efficiency. They had a holding company in Mauritius or some other zero tax country, with subs in every country that they operated in. This gave them a very flexible corporate structure with great tax efficiency. Any of the subs could be sold or go public independently without an incidence of capital gains. And so on.

Another thought was to incorporate the parent company in India and have a wholly owned sub in the US. That had corporate income tax advantages as well as tax advantages in the event of a liquidity event. Also, doing an IPO in India would have a lower bar and probably get a better valuation as well.
In the end we decided to incorporate a Delaware company and have a wholly owned sub in India. While this is almost certainly less tax efficient it has other advantages that don’t show up on a spreadsheet exercise. If you are looking to get quality venture money into the company (and we are), you can’t go wrong with a US company. US VCs are comfortable with a US legal jurisdiction and not all of them are completely open to an Indian jurisdiction. Indian VCs on the other hand regularly fund US incorporated companies.

Also, the management of the company is largely in the US (4 out of 5 founders are here). Being an Indian company makes it operationally a tad more difficult. For instance, under Indian company law, board meetings must be attended in person, not on the phone.

In the end, the argument that tipped the scales for us was ‘simplicity’. The US-parent-Indian-sub structure was simple and a natural fit. Anything else would have made things complex to manage and complex to explain to an outside investor. Sure, we would probably have liked to have been more tax efficient. But then you have to make a whole lot of profit before you start worrying about the income tax on it!

While this solution works for us, everyone has a different business model and their own preferences. Be sure to talk to a lawyer and an accountant who know cross-border issues. And don’t forget to check within your network of entrepreneurs.