Is it allowed to retain the original personal documents of the employee when concluding an employment contract in Vietnam? Will there be penalties for unilaterally retaining the original personal documents of the employee?
What is an employment contract in Vietnam?
According to Article 13 of the Labor Code 2019 regarding employment contracts as follows:
Employment contract
1. An employment contract is an agreement between an employee and an employer on paid work, wages, working conditions, and the rights and obligations of each party in the labor relationship.
In case both parties agree under a different title but the content reflects paid work, wages, and the management, operation, and supervision of one party, it is considered an employment contract.
2. Before employing an employee, the employer must enter into an employment contract with the employee.
Thus, the contract is regulated as above
Is it allowed to retain the original personal documents of the employee when concluding an employment contract in Vietnam? Will there be penalties for unilaterally retaining the original personal documents of the employee? (Image from the Internet)
Vietnam: Is the employer allowed to retain the original personal documents of the employee?
Pursuant to Article 17 of the Labor Code 2019 on behaviors that employers must not engage in when concluding and performing employment contracts as follows:
Behaviors that employers must not engage in when concluding and performing employment contracts
1. Retaining the original personal documents, diplomas, or certificates of the employee.
2. Requiring the employee to provide a monetary or other property guarantee for the performance of the employment contract.
3. Compelling the employee to perform an employment contract to repay debts to the employer.
Thus, according to the regulations, employers are not allowed to retain the original personal documents, diplomas, or certificates of the employee.
Will unilaterally retaining the original personal documents of the employee be administratively sanctioned?
According to the provision at Article 9 of Decree 12/2022/ND-CP on violations of regulations regarding the conclusion of employment contracts as follows:
Violations of regulations regarding the conclusion of employment contracts
1. Fines for employers for any of the following acts: concluding an employment contract not in writing with an employee doing a job with a duration of one month or more; concluding an employment contract not in writing with authorized representatives concluding contracts for a group of workers aged 18 or above who are performing seasonal or specific jobs with a duration of less than 12 months as prescribed in Clause 2, Article 18 of the Labor Code; incorrect type of employment contract with the employee; concluding an employment contract without the principal contents as prescribed by law shall be penalized as follows:
a) From 2,000,000 VND to 5,000,000 VND for violations involving 1 to 10 employees;
b) From 5,000,000 VND to 10,000,000 VND for violations involving 11 to 50 employees;
c) From 10,000,000 VND to 15,000,000 VND for violations involving 51 to 100 employees;
d) From 15,000,000 VND to 20,000,000 VND for violations involving 101 to 300 employees;
đ) From 20,000,000 VND to 25,000,000 VND for violations involving more than 300 employees.
2. Fines from 20,000,000 VND to 25,000,000 VND for employers for any of the following acts:
a) Retaining the original personal documents, diplomas, or certificates of the employee when concluding or performing the employment contract;
b) Compelling the employee to provide a monetary or other property guarantee for the performance of the employment contract;
c) Concluding an employment contract with an employee aged from 15 to under 18 without the written consent of their legal representative.
3. Remedies
a) Compelling the employer to conclude a written employment contract with the employee for acts of concluding an unwritten employment contract with an employee doing a job with a duration of one month or more as prescribed in Clause 1 of this Article;
b) Compelling the employer to conclude a written employment contract with the authorized representative for a group of employees performing seasonal jobs or jobs with a duration of less than 12 months when they fail to conclude a written employment contract with the authorized representative for a group of employees aged 18 or above performing seasonal or specific jobs with a duration of less than 12 months as prescribed in Clause 2, Article 18 of the Labor Code prescribed in Clause 1 of this Article;
c) Compelling the employer to conclude the correct type of contract with the employee for acts of concluding the incorrect type of employment contract with the employee as prescribed in Clause 1 of this Article;
d) Compelling the employer to return the original personal documents; diplomas; certificates retained from the employee for violations prescribed in Point a, Clause 2 of this Article;
đ) Compelling the employer to return the monetary or property guarantee retained from the employee plus the interest based on the highest non-term deposit rate of state commercial banks published at the time of the sanction for violations prescribed in Point b, Clause 2 of this Article.
Thus, according to the regulations, employers unilaterally retaining the original personal documents, diplomas, or certificates of the employee when concluding or performing an employment contract may be administratively fined up to 25,000,000 VND.
The above fine is for individuals, and organizations violating will be fined twice as much as individuals.
In addition, measures to remedy the consequences include compelling the employer to return the original personal documents; diplomas; certificates retained from the employee.
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