Can employees receive monthly advance payment in January 2023 for Tet holiday in Vietnam? How much salary are employees allowed to receive monthly advance payment in Vietnam?

Can employees receive monthly advance payment in January 2023 for Tet holiday in Vietnam?

During the Lunar New Year 2023, employees have an increased demand for shopping, traveling and eating. However, the Lunar New Year falls in the second half of January 2023. Most companies stipulate the time to pay salary at the beginning of the month (the 5th, 10th, 15th). Therefore, it is still not the time to pay wages, so there are many employees  who want to receive monthly advance payment on this occasion. So, are employees allowed to receive monthly advance payment before Tet? Let's find out through the article below.

Pursuant to the provisions of Clause 3, Article 97 of the Labor Code 2019, the salary payment term is as follows:

3. An employee who receives a piece rate or a fixed amount shall be paid as agreed by both parties. In case a task cannot be completed within one month, the employee shall receive a monthly advance payment based on the amount of work done in the month.

According to this Article, if the employee receive a monthly advance payment based on the amount of work done in the month, the monthly salary will be advanced according to the amount of work done in the month.

Pursuant to the provisions of Article 101 of the Labor Code 2019 on salary advances as follows:

1. An employee may receive an interest-free salary advance in accordance with conditions agreed on by the two parties.

2. The employer must make the advance payment to the employee for the number of days the employee temporarily leaves his/her work in order to perform duties of citizens for a period of 01 week or longer, but the advance shall not exceed 01 month’s salary. The employee must reimburse the advance.

An employee who is conscripted in accordance with the Law on Conscription may not receive salary advance.

3. When taking annual leave, an employee shall receive an advance payment of at least salary for the entitled days of leave.

According to this Article, employees are entitled to monthly advance payment in the following cases:

- Employees are entitled to monthly advance payment according to the conditions agreed upon by the two parties and no interest will be charged.

- The employer must give the employee a monthly advance payment corresponding to the number of days the employee is temporarily absent from work to perform his/her civic duty for 01 week or more, but not exceeding 01 month's salary according to the labor contract and the employee must return the advance amount.

Employees who enlist in the army under the provisions of the Law on Military Service are not entitled to monthly advance payment.

- When taking annual leave, employees are entitled to monthly advance payment at least equal to the salary of the days off.

Pursuant to the provisions of Clause 2, Article 128 of the 2019 Labor Code, work suspension is as follows:

2. The work suspension shall not exceed 15 days, or 90 days in special circumstances. During the suspension, the employee shall receive an advance of 50% of his/her salary entitled prior to the suspension.

Upon the expiry of the work suspension period, the employer shall reinstate the employee.

According to this Article, the employee is entitled to an advance of 50% of salary during the period of temporary suspension of work to verify the case of violation of labor discipline in Vietnam.

Thus, in case the employee needs to advance salary before the Lunar New Year 2023 and is agreed by the employer, the employee will be entitled to an advance salary if falling into the above cases in Vietnam.

How much salary are employees allowed to receive monthly advance payment in Vietnam?

Currently, the law only stipulates the cases in which the employee is entitled to advance salary and depends on the agreement with the employer without specifying the salary advance rate. Therefore, the salary advance will be fully agreed upon between the employee and the employer.

Thus, the employee can negotiate with the employer about the salary advance before the Lunar New Year 2023 and the advance level. Usually 30%; 50%; 70%; 100% in advance.

What are penalties for employers who do not advance the employee's salary during the Lunar New Year 2023?

Pursuant to the provisions of Clause 2, Article 17 of Decree 12/2022/ND-CP on violations against regulations on salaries as follows:

2. The following fines shall be imposed upon an employer for commission of one of the following violations: Failing to pay salaries on schedule as prescribed by law; failing to pay or insufficiently paying salaries to employees as agreed in their employment contracts; failing to make or insufficiently making overtime pay; failing to make or insufficiently making nightshift pay; failing to pay or insufficiently paying work suspension allowances as prescribed by law; restricting or interfering employees’ spending of their salaries; forcing employees to spend their salaries on goods or services of the employer or any particular providers decided by the employer; deducting from employees’ salaries in breach of law; failing to pay or insufficiently paying salaries to employees how are reassigned to perform works which are not specified in their employment contracts or during a strike; failing to make or insufficiently making payments to employees who, due to employment termination or job loss, have not taken or not entirely taken up their annual leave in compensation for their untaken leave days; failing to make or insufficiently making advance payments to employees who temporarily leave their works in accordance with regulations of law; failing to pay full salaries to employees who are not disciplined for their work suspension period:

a) A fine ranging from VND 5.000.000 to VND 10.000.000 shall be imposed if the violation involves 01 - 10 employees;

b) A fine ranging from VND 10.000.000 to VND 20.000.000 shall be imposed if the violation involves 11 - 50 employees;

c) A fine ranging from VND 20.000.000 to VND 30.000.000 shall be imposed if the violation involves 51 - 100 employees;

d) A fine ranging from VND 30.000.000 to VND 40.000.000 shall be imposed if the violation involves 101 - 300 employees;

dd) A fine ranging from VND 40.000.000 to VND 50.000.000 shall be imposed if the violation involves 301 employees or more.

The above fine level is the fine level for individuals, the fine level for organizations is 2 times the fine level for individuals.

Thus, at present, the law only stipulates the sanction for failing to make or insufficiently making advance payments to employees who temporarily leave their works in accordance with regulations of law without sanctioning the employee in case of insufficiently making advance payments in other cases.

Therefore, in case an employee is temporarily suspended from work before the Lunar New Year 2023 and has a need to advance his salary, the employer must pay the salary in advance to the employee in Vietnam.

Best regards!