Understanding law on employment is foundational to navigating the modern workplace, as it establishes the framework governing interactions between employers and employees.
Join us as we unravel the complexities of these legal provisions, empowering you with the knowledge to advocate for your rights and understand your obligations.
Understanding Law on Employment – The Basics
What is Employment Law?
Employment law, or sometimes referred to as labor law, is the area of law that deals with the relationship between employers and employees. It covers a wide range of issues, including contracts, pay, benefits, discrimination, harassment, health and safety, firing, and union relations.
These rules are based on a mix of laws, regulations, past court decisions, agreements, and customary practices. Depending on the location, labor law might be regulated by federal, state, or local governments, or a combination of them.
The role of employment law is to manage how employers and employees work together. It ensures that everyone is treated fairly and protects everyone’s rights. This includes everything from how people are hired and fired to how they are paid and treated at work.
Employment law makes sure companies hire people fairly without discriminating based on race, gender, religion, age, disability, or other factors. It also sets rules for how workers can be let go to prevent unfair firings.
This law also sets standards for how much people should be paid and what kind of benefits they should receive, like minimum wage, overtime pay, health insurance, retirement plans, and time off.
Grasping the nuances of employment law is vital for all parties in the workplace. Here’s how it benefits each group:
- Employees: Knowledge of employment law empowers employees to understand their rights and protections in the workplace. It helps them recognize and address any unfair treatment, discrimination, or harassment they may face. It also ensures that employees receive fair wages, benefits, and safe working conditions.
- Employers: Compliance with employment law is essential for employers to avoid legal disputes, penalties, and reputational damage. Understanding employment law helps employers create fair employment practices, maintain a safe work environment, and prevent violations that could lead to costly lawsuits or fines.
Adhering to the guidelines of employment law is also essential for maintaining a productive and harmonious work environment, where both parties can achieve their goals and objectives. By complying with employment law, employers and employees can foster a positive and cooperative relationship, based on mutual trust and respect .
Key Terms in Employment Law
Employment law is a complex and dynamic field that covers a wide range of topics related to the rights and obligations of employers and employees in the workplace. In this section, we will explain some of the key terms and concepts that are essential for understanding employment law.
Employment contracts are the agreements that define the terms and conditions of the employment relationship between an employer and an employee. Employment contracts can be written, oral, or implied, and can be individual or collective.
Employment contracts are crucial as they provide a foundation for the employment relationship. They ensure both parties have a clear understanding of what is expected and are protected throughout the employment period. They help in preventing disputes and provide a basis for resolving any issues that might arise.
Employers and employees are encouraged to carefully review and understand all terms of an employment contract before agreeing, and consider legal advice for complex arrangements or negotiations.
Minimum wage is the lowest hourly pay that employers can legally pay their workers. This rate varies significantly across different regions and countries, reflecting the cost of living and other economic factors in each area. Some regions have a tiered system depending on the size of the employer or the age of the employee.
As of the latest, Vietnam’s minimum wage varies by region due to different living costs. The country is divided into four distinct regions, each with its own minimum wage for employees:
|Monthly Minimum Wage (VND)
|Urban Hanoi and Ho Chi Minh City
|Rural Hanoi and Ho Chi Minh City and Urban Can Tho, Da Nang, Hai Phong
|Provincial cities and districts of Bac Ninh, Bac Giang, Hai Duong, and Vinh Phuc
It’s important to notice that these figures are subject to change and usually updated annually to reflect living costs and economic conditions. Employers must adhere to these minimum wage guidelines to ensure compliance with Vietnamese labor laws.
Overtime pay is the extra compensation that an employer must pay an employee for working more than a certain number of hours in a workweek or a workday. The overtime pay rate and the threshold for overtime hours may vary depending on the country or region, and the type of work or industry. Employers must pay overtime pay to nonexempt employees, unless they are exempt or subject to special rules.
Overtime pay in Vietnam law is regulated by the Labor Code 2019 and the Decree 145/2020/ND-CP. According to these regulations, the following rules apply to overtime pay in Vietnam:
- Employers must obtain the consent of the employees before requiring them to work overtime.
- The normal working hours in Vietnam are eight hours per day and 48 hours per week. Employees can work overtime for up to 50% of the normal working hours in a day, and up to 40 hours in a month.
- The maximum overtime hours in a year are 200 hours for most employees, and 300 hours for some employees who work in certain sectors or situations, such as textile, garment, leather, electricity, electronics, agriculture, forestry, salt, fishery, processing, information technology, or emergency cases.
- Employees who work overtime must be paid at least 150% of their regular wage for overtime hours on normal working days, at least 200% of their regular wage for overtime hours on weekly rest days, and at least 300% of their regular wage for overtime hours on public holidays or paid leave days.
- Employees who work overtime at night must be paid an additional 20% of their regular wage for each overtime hour, on top of the overtime pay rate.
- Employees who work overtime on shifts that span both day and night must be paid an additional 15% of their regular wage for each overtime hour, on top of the overtime pay rate.
To calculate the overtime pay for an employee in Vietnam, the following formula can be used:
Overtime pay = Regular wage x Overtime hours x Overtime pay rate x Additional rate (if applicable)
For example, if an employee has a regular wage of 100,000 VND per hour, and works four overtime hours on a normal working day at night, the overtime pay for that employee would be:
Overtime pay = 100,000 x 4 x 1.5 x 1.2 = 720,000 VND
Workplace discrimination is the unfair or unequal treatment of an employee or a job applicant based on their personal characteristics, such as race, color, religion, sex, national origin, age, disability, or genetic information.
Workplace discrimination can take various forms, including:
- Disparate Treatment: This occurs when an employer treats an employee or job applicant differently based on their personal characteristics, such as refusing to hire, promote, or pay them equally. For example, if a qualified female candidate is passed over for a promotion in favor of a less qualified male colleague, it may be considered disparate treatment discrimination.
- Disparate Impact: This occurs when an employer has a neutral policy or practice that disproportionately affects an employee or job applicant because of their personal characteristics. For instance, if a company requires a certain height or weight that excludes a particular group, it may be considered disparate impact discrimination.
- Harassment: Harassment takes place when an employee or job applicant is subjected to unwelcome conduct based on their personal characteristics. This conduct creates a hostile, intimidating, or offensive work environment or interferes with their work performance. Examples of harassment can include offensive jokes, derogatory comments, or unwelcome advances based on a person’s race, gender, religion, or other protected characteristics.
- Retaliation: Retaliation occurs when an employer takes adverse action against an employee in response to their engagement in protected activities, such as reporting discrimination, filing a complaint, or participating in an investigation. Retaliation can include actions like demotion, termination, or unfavorable work assignments.
- Sexual Harassment: Sexual harassment is a specific form of harassment that involves unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. It creates a hostile work environment or results in adverse employment decisions.
- Age Discrimination: Age discrimination occurs when an employee or job applicant is treated less favorably due to their age, typically when they are 40 years old or older. This can include actions like denying promotions, training opportunities, or terminating employment based on age.
- Disability Discrimination: Disability discrimination involves treating an employee or job applicant unfavorably because of their disability. It can include refusing to provide reasonable accommodations, denying employment opportunities, or subjecting individuals to harassment based on their disability.
- Race Discrimination: Race discrimination occurs when employees are treated differently based on their race or physical features attributed to their race. It can include actions like unfair treatment, unequal pay, or denial of opportunities based on race or skin color.
It’s important to note that these examples are not exhaustive, and workplace discrimination can manifest in various other ways. Laws and regulations regarding workplace discrimination may vary by jurisdiction, so it’s essential to consult specific laws in your area for a comprehensive understanding of workplace discrimination.
Employees and job applicants who experience workplace discrimination can file a complaint with a relevant authority or agency, and seek remedies such as back pay, reinstatement, promotion, or damages.
In Vietnam, workplace harassment is addressed under the Labor Code. Workplace harassment is generally defined as any unwelcome behavior by an employer, manager, colleague, or client that humiliates, intimidates, or affects the dignity and respect of an employee. This includes physical, verbal, psychological, or sexual harassment. The law emphasizes creating a safe, respectful working environment for all employees and prohibits any form of discrimination or harassment.
Vietnamese labor laws recognize several types of workplace harassment, including:
- Sexual Harassment: Any unwanted conduct of a sexual nature that creates an intimidating, hostile, or offensive work environment.
- Psychological Harassment: This includes bullying, intimidation, or any other psychological pressure exerted on an employee.
- Physical Harassment: Any form of physical abuse or threat thereof.
Employers are responsible for preventing and correcting workplace harassment, and for protecting employees from retaliation for reporting or opposing harassment. Employers can be held liable for workplace harassment if they knew or should have known about the harassment and failed to take appropriate action.
Employees who experience workplace harassment can file a complaint with the Ministry of Labor, Invalids and Social Affairs or the local labor authorities, and seek remedies such as back pay, reinstatement, promotion, or damages.
Leave entitlements are the rights and benefits that employees have to take time off from work for various reasons, such as illness, injury, family, or personal matters. Leave entitlements can be paid or unpaid, and can vary depending on the employer’s policies and the applicable laws and regulations.
In Vietnam, leave entitlements for employees are specified under the Labor Code and other relevant regulations. Here is an overview of the leave entitlements typically available to employees in Vietnam:
- Annual Leave: Employees are entitled to a minimum of 12 days of paid annual leave after working for 12 months for the same employer. The number of leave days may increase with the length of service.
- Public Holidays and Tet (Lunar New Year): Employees are given days off for public holidays, including International New Year’s Day, Victory Day, International Labor Day, National Day, and the Tet Holiday, which usually lasts from four to five days.
- Sick Leave: Employees can take sick leave when they are ill or injured and provide a medical certificate. The entitlement and pay depend on the length of service and the type of insurance contribution. Generally, employees are entitled to use their social insurance to cover the days they are off work due to illness or injury.
- Maternity Leave: Female employees are entitled to six months of maternity leave for childbirth. They can also receive a maternity allowance from social insurance if they have paid into the system for a certain period.
- Paternity Leave: Fathers are entitled to paternity leave ranging from 5 to 14 days depending on the specific circumstances of the childbirth, such as normal delivery, C-section, or whether the child is born prematurely.
- Marriage Leave: Employees are typically entitled to three days of leave for their wedding, and one day for the wedding of their child.
- Bereavement Leave: Employees are allowed to take leave in the event of the death of a family member. The length of the leave depends on who has passed away but is typically around three days.
- Family and Medical Leave: While there is no specific law titled as “family and medical leave” as in some countries, Vietnamese labor laws allow for leave related to personal and family medical situations, often covered under sick leave or other relevant leave policies.
These entitlements are the basic rights of employees working in Vietnam, and companies might provide additional benefits. It’s essential for both employers and employees to understand these entitlements and any associated conditions or documentation requirements.
Workers’ compensation is a system that provides benefits to employees who are injured or become ill as a result of their work. Workers’ compensation benefits can include medical care, wage replacement, vocational rehabilitation, and death benefits. Workers’ compensation is regulated by laws and regulations, depending on the country or region, and the type of work or industry.
Workers’ compensation for employees in Vietnam is administered by the social insurance fund as laid out by the Vietnamese labor laws. Employees and employers must contribute to the social insurance fund. Employees’ contribution is 8% of their monthly salary, and employers’ contribution is 17.5% of their monthly payroll.
Employees who are injured or become ill as a result of their work are entitled to the following benefits from the social insurance fund:
- Medical care: Employees are covered for the costs of medical examination, treatment, and rehabilitation, as well as the costs of transportation, accommodation, and meals related to their medical care.
- Wage replacement: Employees are paid a sickness allowance equal to 75% of their average monthly salary for the six months preceding their injury or illness, for the duration of their medical leave, up to a maximum of 180 days per year. If the employee’s injury or illness results in a permanent disability, the employee is paid a disability allowance equal to 30% to 90% of their average monthly salary, depending on the degree of disability, for the rest of their life.
- Vocational rehabilitation: Employees who suffer a permanent disability that affects their ability to work are entitled to vocational training and job placement services, as well as a vocational rehabilitation allowance equal to 30% of their average monthly salary for the duration of their training, up to a maximum of 24 months.
- Death benefits: If the employee’s injury or illness results in death, the employee’s dependents are entitled to a funeral allowance equal to 10 times the base salary, and a survivor allowance equal to 40% to 70% of the employee’s average monthly salary, depending on the number of dependents, for the rest of their life.
Employees who are injured or become ill as a result of their work must report their injury or illness to their employer and file a claim with the social insurance agency within a certain time limit. Employees must also follow the rules and procedures for receiving medical treatment and benefits, and cooperate with the investigation and evaluation of their claim.
Unemployment benefits are the payments that employees receive when they lose their job through no fault of their own, and are actively looking for work. Unemployment benefits can help employees to cover their living expenses and to find a new job. Unemployment benefits are funded by taxes paid by employers and employees, and are administered by the Vietnam Social Security (VSS).
Employees who want to receive unemployment benefits must meet the following eligibility criteria:
- They must have terminated their labor contract or working contract.
- They must have paid unemployment insurance for at least 12 months in the 24 months before the contract termination.
- They must have submitted an application for unemployment benefits to an employment service center within three months from the date of contract termination.
- They must have not found a new job after 15 days from the date of submission of the application.
The amount of unemployment benefits that employees receive depends on their previous earnings and the duration of their unemployment. The monthly unemployment benefit is equal to 60% of the average monthly salary on which unemployment insurance contributions are based for the six consecutive months before unemployment.
However, the maximum benefit amount cannot exceed five times the base salary for employees subject to the state salary regime, or five times the regional minimum wage for employees subject to the employer salary regime, at the time of contract termination.
The duration of unemployment benefits that employees receive depends on the length of their unemployment insurance contributions:
|Length of Unemployment Insurance Contributions
|Duration of Unemployment Benefits
|From 12 months to less than 36 months
|From 36 months to less than 72 months
|From 72 months to less than 144 months
|144 months or more
Employees who receive unemployment benefits must actively look for work and report their job search activities to the employment service center every month. Employees must also accept any suitable work offer that they receive, or they may lose their benefits.
Non-compete agreements are contractual clauses that limit an employee’s ability to work for a competitor or start a rival business within a specific time frame and geographic area after leaving their current employer.
These agreements aim to safeguard the employer’s legitimate business interests, such as trade secrets, confidential information, customer relationships, and goodwill. Its enforceability usually varies depending on the country or region, as well as the reasonableness and necessity of the restrictions imposed.
Applying Employment Law – Practical Insights
Understanding and utilizing employment law can be beneficial for employees in various ways. Here are some practical insights on how employees can learn and use employment law to their advantage:
- Take the initiative to educate yourself about employment laws that apply to your jurisdiction. Resources such as government websites, legal publications, and online forums can be valuable sources of information.
- Be aware of your rights as an employee. Understand what protections employment law affords you in terms of fair treatment, non-discrimination, wages, benefits, workplace safety, and other areas.
- Thoroughly review your employment contract and any relevant company policies or handbooks. Pay attention to clauses related to termination, non-compete agreements, benefits, and dispute resolution procedures.
- Maintain a record of important employment-related documentation, such as employment contracts, performance evaluations, pay stubs, and communication with your employer. It can serve as evidence in case of any disputes or violations of your rights.
- If you encounter an issue or concern in your workplace, try to resolve it through internal channels first. Follow your company’s grievance or complaint procedures, and document your efforts to address the issue.
- Utilize the services of employee advocacy groups or organizations that specialize in employment law.
Remember, employment law can be complex, and it’s always advisable to seek legal advice when faced with challenging situations or if you believe your rights have been violated.
When to Seek Legal Advice
When considering whether to seek legal advice in employment matters, there are several critical moments where the expertise of an employment lawyer can be invaluable. You should consider consulting a legal professional:
- Before Signing Employment Contracts or Agreements: Before you agree to any employment terms, having a lawyer review the contract can ensure that your rights are protected and you fully understand your obligations.
- During Significant Workplace Changes: If your employer is undergoing significant changes such as mergers, layoffs, or policy shifts, it’s wise to understand how these changes affect your rights and employment.
- When Facing Discrimination or Harassment: If you believe you are a victim of discrimination or harassment in the workplace, a lawyer can advise you on the validity of your claims and the best course of action.
- When Facing Disciplinary Actions or Termination: If you are subject to disciplinary actions or termination, especially if you believe these to be unjust or illegal, a lawyer can help protect your rights and may assist in negotiating a severance or an appeal.
- When Dealing with Workplace Injuries or Illnesses: If you’re navigating the complexities of workers’ compensation or disability accommodations, legal advice can ensure you receive the benefits and support you’re entitled to.
In all these situations, timely legal advice can prevent future complications, ensure your rights are upheld, and guide you towards the most beneficial outcome. Whether you’re an employee seeking to protect your interests or an employer aiming to comply with the law and best practices, consulting with an employment lawyer can provide clarity and confidence in navigating the complex field of employment law.
Benefits of Hiring an Employment Lawyer
Whether you are an employer or an employee, you may encounter various legal issues or disputes that require professional guidance and representation. That is why you might want to hire an employment lawyer for your benefits such as:
Protecting Your Rights
By engaging an employment lawyer, individuals and businesses can safeguard their rights within the workplace. These legal professionals are adept at identifying and asserting your rights, whether it’s during contract negotiations, in cases of wrongful termination, or when dealing with workplace discrimination or harassment. They ensure that you are fully aware of your legal standing and the protections afforded to you under employment law, effectively preventing any potential infringement of your rights.
In instances of workplace injustice such as unlawful dismissal, discrimination, or unpaid wages, an employment lawyer can be instrumental in securing fair compensation. They possess the expertise to accurately assess the value of claims and are skilled negotiators who can advocate on your behalf. By utilizing their comprehensive understanding of employment law, they work to ensure you receive all the compensation you are entitled to, which might include back pay, benefits, and damages for distress or inconvenience.
The realm of employment law is notoriously complex and ever-evolving, with a myriad of federal, state, and local laws to consider. Employment lawyers are dedicated to understanding these laws in-depth and can effectively navigate the legal landscape on your behalf. This expertise is particularly valuable in interpreting the nuances of the law, understanding legal precedents, and applying them to your specific situation. Whether you’re an employee facing a legal issue or an employer aiming to comply with the latest regulations, an employment lawyer can guide you through the complexities, ensuring that all actions are legally sound and strategically considered.
Preventing Future Issues
An employment lawyer doesn’t just resolve current disputes; they can also help prevent future ones. For employers, they can assist in drafting employment contracts, policies, and handbooks that comply with all legal requirements, reducing the likelihood of legal disputes down the line. For employees, they can review job offers and contracts to ensure fair terms and prevent any potential issues with future employers.
Customized Strategy and Representation
Every employment case is unique, and employment lawyers provide personalized advice and strategies tailored to your specific circumstances. They represent you in negotiations, mediations, arbitrations, or court proceedings, offering the best chance for a favorable outcome. With a thorough understanding of your goals and concerns, they can effectively advocate for your interests.
Employment law is a vital and diverse field that affects the rights and obligations of employers and employees. It plays a crucial role in fostering fair and equitable work environments.
At Le & Tran Law, we are dedicated to guiding you through the intricacies of employment law, offering expert counsel and robust support. Trust in our commitment to deliver justice and fair treatment, ensuring your peace of mind in all employment matters.
With our expertise and dedication, we are more than just legal advisors; we are your partners in achieving workplace harmony and legal success.