Step #1: Establishing Your Own Entity in India
A company might opt to set up its own entity in India under circumstances where it foresees a substantial long-term presence and significant operational scale in the country. This approach is typically favored by organizations intending to establish a large dedicated office, a manufacturing plant, or if they plan to have a direct sales presence and substantial market penetration. By creating an entity, these companies can:
- Exercise complete control over their operations and workforce.
- Protect their intellectual property and business methods within a controlled legal structure.
- Ensure full revenue retention within the country, which could be advantageous for reinvestment and tax purposes.
- Have the presence to engage in government contracts or comply with specific regulatory requirements that necessitate a local entity.
In India, you need to have a recognized legal company registered with the Ministry of Corporate Affairs in order to pay employees. This is a multi-step procedure that will involve the following:
- Submitting an online application to obtain a Director Identification Number (DIN)
- Name of reserved company
- Cover stamp costs.
- Apply a seal.
- Visit a government agency in person to receive a Permanent Account Number.
- Obtain a number for your taxes.
- Register with the staff member. Provident Fund Company
- Register for the Employees' State Insurance Scheme if you are an employer with ten or more employees.
Step #2: Establish your Payroll Process
Once you've decided on the employment structure—the next step is selecting a global payroll software solution that fits your business needs managing payroll complexities that come with international employment, ensuring accuracy, compliance, and timeliness in your payroll processes.
Key Considerations for Choosing Payroll Software:
- Integration with Local Systems: Your payroll solution should seamlessly integrate with India's banking systems and tax protocols. It should handle local statutory deductions, like Provident Fund (PF), Employee State Insurance (ESI), Professional Tax (PT), and Labor Welfare Fund (LWF) contributions, among others.
- Compliance Management: Ensure the software stays current with India’s tax laws and employment regulations. It should automatically update to reflect any changes in legislation, thus keeping your payroll compliant without manual intervention.
- Currency and Exchange Rate Management: Given the need to pay in Indian Rupees (INR), the payroll software must handle currency conversions and protect against exchange rate fluctuations.
- Scalability: Choose software that can scale with your business. As your workforce in India grows, your software should be able to accommodate increased complexity and additional employees without a drop in performance.
- Data Security: Payroll data is sensitive, and the software must have robust security measures in place to protect against breaches and ensure data privacy.
You should also have policies on the following to guarantee that your business handles payroll in India efficiently:
- Benefits: How do you send payments and what perks are necessary?
- Leaves: Which leaves, if any, must be paid for in whole or at a reduced rate?
- Overtime: How much and at what rate do you have to pay employees for overtime?
- Absences: How do you keep track of absences and determine if they are paid, unpaid, or excused?
- Holidays: Which holidays carry pay, and how much is paid?
Step #3: Determine Your Workers’ Employment Status
It determines the type of employment contracts you need, the benefits you must provide, the taxes you are liable to withhold, and the overall compliance with Indian labor laws.
Conditions of employment
In India, each employee needs to be covered by a collective bargaining agreement or have an employment contract. What has to be in this paper is as follows:
- Full name and address of the company
- Full name and address of the employee
- Date of hire Start of Work Relationship Type
- Hours of work
- Calculation rate and frequency of pay
- If a contract has a set duration, it must specify when it ends.
- Process of termination
Classification of Employment Status
In India, there are severe penalties for misclassification. Businesses risk penalties, back pay, and exclusion from doing business in India.
- Full-Time Employees: They have the most comprehensive legal protection and benefits, including health insurance, pension plans, and severance. Employers must adhere to strict compliance regarding their working hours, overtime, and termination.
- Part-Time Employees: While they are entitled to many of the same protections as full-time employees, their benefits are often proportional to their working hours.
- Contract Employees: Hired for a specific duration or project, contract employees' rights are governed by the terms of the contract and the relevant Indian labor laws. They typically do not receive the full range of benefits.
- Freelancers/Consultants: Usually self-employed individuals, they do not enjoy the benefits and protections afforded to employees but have greater flexibility. Employers are not typically responsible for withholding taxes for freelancers, who are instead responsible for paying their own advance tax.
Implications for Payroll
The employment status affects payroll processing in several ways:
- Tax Withholding: Different employment categories are subject to varying tax withholding requirements. Full-time employees, for instance, are subject to Tax Deducted at Source (TDS), which employers must handle
- Benefits Contributions: Statutory benefits like Provident Fund (PF) and Employee State Insurance (ESI) contributions apply to full-time employees, impacting payroll calculations
- Regulatory Compliance: Compliance with the Shops and Establishments Act, the Professional Tax, and the Labor Welfare Fund depends on employment status.
- Record Keeping: The type of employment influences the records you must maintain. For full-time employees, this includes detailed attendance, leave records, and more.
Decide whether or not to create your own entity in India or use an Employer of Record (EOR)
When expanding your U.S.-based company's operations to India and planning to hire local talent, a key initial decision is whether to establish a legal entity in India or partner with an Employer of Record (EOR). This step is crucial, as it sets the foundation for your international employment structure and payroll process.
Using an Employer of Record (EOR) Service
An EOR is especially advantageous for mid to large-sized U.S.-based companies or early-stage startups that have identified potential talent in India and wish to onboard them efficiently and compliantly. It's a solution that mitigates the need for extensive local knowledge of legal and tax intricacies, allowing the company to focus on its core competencies while the EOR handles the rest.
Partnering with an EOR is a strategic choice for companies that:
- Aim to quickly onboard talent without the delay of setting up a legal entity.
- Want to test the Indian market with a lower risk and investment before committing to a full-scale operation.
- Prefer to minimize the administrative overhead associated with legal compliance, payroll, and human resources.
- Require flexibility to scale their workforce up or down without the complexities of hiring and termination laws in India.
- Seek to ensure compliance with India’s employment laws and tax codes, which can be complex and vary significantly from U.S. practices.
The decision between establishing an entity or using an EOR service is influenced by the company’s commitment level, need for control, risk appetite, and speed of market entry. An EOR like Wisemonk can expertly navigate these complexities. By accurately determining the employment status, an EOR ensures that the payroll process adheres to all local regulations, calculating appropriate tax and benefits contributions, and maintaining necessary records. Those leaning towards an EOR appreciate the swift, flexible, and compliant nature of the service, which can be particularly crucial in the dynamic and competitive Indian market.
Read our blog on Best Employer of Record (EOR) Services in India .
Step #4: Capture Your New Hires’ Indian Payroll Information
This step is critical to ensure accurate and timely payroll processing and to remain compliant with Indian tax and employment laws.
Information Required for Indian Payroll:
1. Personal Details:
- Full name as per official records
- Date of Birth
- Current address and permanent address
- Contact information (phone number and email address)
- Emergency contact details
2. Tax Information:
- Permanent Account Number (PAN), which is mandatory for all employees working in India to facilitate tax deductions
- Aadhaar Card number for Indian residents
- Details of any other income (if applicable) for accurate tax calculation
3. Banking Information:
- Bank account details where salary will be deposited, including the name of the bank, account number, branch details, and IFSC code
4. Employment History:
- Previous employment details
- Last drawn salary
- Form 16 from the previous employer (if applicable) for TDS reconciliation
5. Work Eligibility Documents:
- Visa, work permit, or OCI (Overseas Citizenship of India) details for non-Indian residents
Step #5: International Payment Considerations You Need to Make
Currency and Exchange Rates
Given the volatility in the foreign exchange markets, it's important to approach this with a strategy to mitigate financial risk and ensure the timely and correct payment of salaries.
Payment in Local Currency (INR) and Exchange Rates
- Employees in India must be paid in Indian Rupees (INR), which necessitates currency conversion for the U.S.-based companies.
- Companies should monitor FX ratesthese rates closely or engage with a service that provides this facility, as even minor fluctuations can have a significant impact on the amount received by employees after conversion.
- To avoid exchange rate losses, it's advisable to convert currency at a time when the rates are favorable. Some companies opt to use forward contracts or other financial instruments to lock in an exchange rate for a future date, thus ensuring budget stability.
- Companies must comply with the Foreign Exchange Management Act (FEMA) in India, which governs cross-border money transfers.
- Employers must also ensure that all international payments are reported accurately to the relevant tax authorities.
Reliable Payment Gateways:
- Utilizing trusted international payment gateways can ensure secure and efficient transactions.
- The chosen payment system should have a strong track record of successfully dealing with international payroll requirements.
Wisemonk is highly optimised as it allows for unlimited international payments to contractors at Industry lowest FX markup (<0.6%)
Example- Let’s say you have a team size of 2 employees in India and the average salary per employee is 30,000 USD.
Total amount of salary to be disbursed- 2 x 3,0000 = 60,000 USD
If your chosen EOR provides a 3% markup on foreign exchange, that amount will be 1800 USD,Whereas with Wismonk’s FX markup of 0.6%, the additional amount the company has to pay will just be 360 USD.
In this way Wisemonk provides value to the company by saving almost 150 USD per month for a company with a team size of 2 in India.
Step #6: Calculate and Run Payroll
TDS (Tax Deducted at Source):
Payroll taxes are something you'll need to factor in when estimating your Indian payroll. If you fail to comply with these, you may face expensive fines and penalties from Indian government organizations.
Old Tax Regime:
- Under the old tax regime, taxpayers can avail of a wide range of deductions and exemptions such as the standard deduction, house rent allowance, deductions under Section 80C for investments, etc.
- The tax rates under this regime are progressive, with slabs ranging from 5% to 30%, depending on the individual's income level.
New Tax Regime (Introduced in Budget 2020):
- The new tax regime offers reduced tax rates but comes with a catch – the taxpayer has to forgo most deductions and exemptions available under the old regime.
- Tax rates under this structure range from 5% to 30%, but the slabs are adjusted so that many individuals might fall into lower tax brackets than they would under the old regime.
The idea is to simplify the tax system by eliminating the myriad of exemptions and deductions while offering lower rates.
For companies with a limited presence in India — perhaps a few employees — partnering with a local payroll provider could be the most efficient approach. These providers are well-versed in the nuances of India's payroll regulations, saving your business from the complexities of legal compliance and potential pitfalls.
On the flip side, if your business footprint is larger, or if you're eyeing substantial growth in the Indian market, setting up an in-house payroll could be advantageous. This requires a dedicated effort to understand and apply Indian payroll laws accurately, ensuring the correct withholdings and tax remittances to the appropriate Indian tax authorities.
Regardless of the chosen method, the underlying principle is precision — accurate payroll processing that reflects the latest legal requirements, ensuring employees receive their rightful pay and the company remains compliant with Indian tax laws.
Step #7: Record and Archive Your Records of Payroll
After employment ends, payroll records in India must be retained for a minimum of three years. At the very least, your payroll records ought to contain:
- The duration of work and the salary scale
- The regularity of payments
- Name and address of the employee
- Total compensation, including overtime
- Employee net payment
- A copy of the collective bargaining agreement or employment contract that was taken
Bottom Line: Wisemonk
Wisemonk is the most value focussed strategic partner for your company in global talent acquisition and management. It offers a more affordable solution compared to other options, including setting up your own entity. Wisemonk’s transparent pricing starting at just $150 per employee per month makes them accessible for even small to medium-sized businesses while providing a range of features usually reserved for high-ticket EORs.
Besides cost-effectiveness, Wisemonk also excels in providing localized expertise. Being native to India, the founders understand the Indian market intricately, allowing them to offer tailor-made solutions that can be a huge asset for U.S.-based companies looking to hire in India
Leave the hassle of entity establishment and focus on what you do best—running your business. Reach out to us, and we will be happy to assist you.