1. Meet recruitment conditions for using foreign employees working in Vietnam
According to the provisions of Clause 1 and Clause 2, Article 152 of the 2019 Labor Code, to recruit foreign employees to work in Vietnam, employers must meet the following conditions:
- Only foreign employees can be recruited to fill management, executive, expert and technical positions that cannot be met by Vietnamese employees according to production and business needs.
- Before recruiting foreign employees to work in Vietnam, employers must explain their need for labor and obtain written approval from a competent state agency.
At least 15 days before the expected date of employing foreign employees, the employer shall determine their demand for employment of foreign employees for each job assignment which Vietnamese employees cannot perform, and send a report to the Department of Labor, War Invalids and Social Affairs as prescribed in Article 4.1.a Decree 152/2020/ND-CP amended and supplemented by Decree 70/2023/ND-CP. In the Explanation Report on the need to employ foreign employees, the employer must clearly explain the following contents:
- Job position: Choose 1 of 4 job positions: manager/executive director/expert/technical worker;
- Job Title;
- Number of employees;
- Working term;
- Form of work;
- Work location;
- Reasons for using foreign employees;
- Situation of using foreign employees:
- Job position description, job title ;
- Qualification requirements;
- Experience requirements;
- Reasons for not being able to recruit Vietnamese employees for positions expected to employ foreign employees.
During the process of using foreign employees, if the employer changes the need to use foreign employees in terms of position, job title, form of work, quantity, location, the employee Employers must report to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs at least 15 days in advance from the expected date of employing foreign employees as prescribed in Article 4.1. a Decree 152/2020/ND-CP amended and supplemented by Decree 70/2023/ND-CP.
2. Employ foreign employees with work permits
Employing foreign employees with work permits is one of the responsibilities of employers who employ foreign employees.
At least 15 days before the date a foreign employee is expected to start working in Vietnam, the employer needs to submit an application for a work permit to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs where the foreign employee is expected to work.
In some cases, foreign employees working in Vietnam are not subject to work permits according to Article 154 of the 2019 Labor Code. For these cases, the employer will carry out procedures for certification of foreign employees’ eligibility for exemption from work permit or report to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs about the employment of foreign employees who are not subject to the issuance of work permits according to legal regulations.
3. Report on foreign labor use
According to the provisions of Article 6 of Decree 152/2020/ND-CP, when employing foreign employees, employers are obliged to report periodically in the first 6 months of the year and annually on the situation of employing foreign employees. Employers must report electronically to the Ministry of Labor, War Invalids and Social Affairs and the Department of Labor, War Invalids and Social Affairs where the foreign employees work according to Form No. 07/PLI Appendix I Decree 70/2023/ND-CP.
The report on employment of foreign employees in the first 6 months of the year will be sent before July 5. The period for data cut-off for biannual reports shall be counted from December 15 of the year preceding the reporting period to June 14 of the reporting period.
The annual report on the use of foreign employees will be sent before January 5 of the subsequent year. The period for data cut-off for annual reports shall be counted from December 15 of the year preceding the reporting period to December 14 of the reporting period.
In case a foreign employee works for an employer in more than one province or centrally run city, the employer shall, within 3 working days after the foreign worker starts working for the employer, report via the electronic network to the Ministry of Labor, War Invalids and Social Affairs and provincial-level Department of Labor, War Invalids and Social Affairs in the locality where the foreign worker comes to work according to Form No. 17/PLI, Appendix I of the Decree. 70/2023/ND-CP.
4. Legal consequences when not complying with obligations when using foreign employees
In case the employer does not comply with the obligations in the process of employing foreign employees mentioned above, based on Clause 1, Article 6 and Article 32 of Decree 12/2022/ND-CP, the employer Employees may be subject to administrative sanctions as follows:
| Behavior | Form of sanction
|
|
| For individuals
|
For organizations
|
|
| Failing to report, reporting incorrectly, or failing to report within the time limit on the employment of foreign workers according to regulations
|
Fine from 1,000,000 VND to 3,000,000 VND | Fine from 2,000,000 VND to 6,000,000 VND |
| Using foreign employees inconsistent with the contents of the work permit or the work permit exemption certificate | Fine from 5,000,000 VND to 10,000,000 VND/ employee
(maximum not exceeding 75,000,000 VND) |
Fine from 10,000,000 VND to 20,000,000 VND/ employee
(maximum not exceeding 150,000,000 VND)
|
| Employs foreign workers in Vietnam without work permits or work permit exemption certificates, or employs foreign workers with expired work permits or expired work permit exemption certificates | Fine from 30,000,000 VND to 75,000,000 VND
(Depends on number of employees) |
Fine from 60,000,000 VND to 150,000,000 VND
(Depends on number of employees) |
Disclaimers:
This article is for general information purposes only and is not intended to provide any legal advice for any particular case. The legal provisions referenced in the content are in effect at the time of publication but may have expired at the time you read the content. We therefore advise that you always consult a professional consultant before applying any content.
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Apolat Legal is a law firm in Vietnam with experience and capacity to provide consulting services related to Employment and contact our team of lawyers in Vietnam via email info@apolatlegal.com.
