In Vietnam, can employees who are detained or held in custody be paid by the company?
Hello Lawyer! My lawyer asked me: Can an employee who is detained in custody be paid by the company? At my company, there are employees (employees) who are detained by the police for violating the law. It is said that according to the old regulations, employees are entitled to advance wages during the days of being held in custody or temporary detention. Please, according to current regulations, can employees who are detained or held in custody be paid by the company, How will employee benefits be resolved? Thank you.
Thank you for submitting your question to us. Lawyer X will answer your questions as follows:
Legal basis:
Labor Code 2019
Law on Social Insurance 2014
Can employees who are detained or held in custody be paid by the company?
Firstly, for salary payment: Clause 2, Article 101 of the Labor Code 2019 stipulates; The employer must give the employee an advance salary corresponding to the number of days the employee is temporarily absent from work; to perform the 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.
Thus, in addition to the temporary suspension due to the employee performing military service; The 2019 Labor Code does not specify wages for the remaining cases, including the case of temporary detention.
Next, According to the new regulations, employees who are held in custody or temporary detention are also subject to the case of having to suspend the performance of the labor contract; but not in the case that the Employer must advance the salary to the Employee during the time the Employee is held in custody or temporary detention; (unless the employer has its own regulations).
Therefore, the company does not have to advance wages for employees who are detained or detained, whether related or not related to the labor relationship. If it is the fault of the procedure-conducting agency; then the Employee has the right to complain and request the restoration of legitimate rights and interests that have been infringed; be compensated for damage in accordance with the law.
When being detained, how are the employee’s regimes resolved?
Social insurance regime
In fact, it is possible to suspend the payment of social insurance premiums according to the provisions of Clause 2, Article 88 of the Law on Social Insurance 2014. Specifically:
“2. Employees who are participating in compulsory social insurance and are detained; then the employee and the employer may suspend the payment of social insurance premiums. In case it is determined by a competent authority that the employee has been unjustly committed; If they are wrong, they will pay social insurance premiums for the time they are detained. The amount of compensation is not subject to interest on late payment as prescribed in Clause 3, Article 122 of this Law“.
Pension regime
While being detained pending an investigation, prosecution, and trial, the employee has reached retirement age. So, in this case, the employee is entitled to retirement benefits or not?
According to the provisions of Article 88 of the Law on Social Insurance 2014; then in case the employee is held in custody or temporary detention, the employee; and the employer is allowed to temporarily stop paying social insurance premiums.
However, during the time of being held in custody or temporary detention, the employees have reached retirement age; and also have fully paid compulsory social insurance for over 20 years; thus, the employee has ensured all conditions to enjoy the retirement regime as prescribed in Article 54 of the Law on Social Insurance; (The Law on Social Insurance does not stipulate that those who are held in custody or temporary detention are not entitled to their retirement benefits).
The responsibility of the employer, in this case, is carrying out procedures for employees to retire; making dossiers and coordinating with social insurance agencies; to paying the employee’s retirement benefits (Article 21 of the Law on Social Insurance).
Settlement of regimes for temporarily detained workers
Postponement of contract performance
Article 30 of the Labor Code 2019; stipulates cases of temporary suspension of the performance of the labor contract, including “b) The employee is held in custody or temporary detention in accordance with the law on criminal proceedings.
At the end of the period of suspension of the Labor Contract; then the employer must take back the employee according to the provisions of Article 31 of the Labor Code 2019:
“Article 31. Re-acceptance of employees whose labor contract suspension period expires: Within 15 days from the date of expiration of the labor contract suspension period; the employee must be present at the workplace and the employer must accept the employee back to work under the signed labor contract if the labor contract is still valid; unless otherwise agreed by the two parties or provided for by law.
Thus, the suspension of the labor contract has not completely ended the relationship between the enterprise and the employee. Expiration of 15 days from the date of expiration of the period of temporary suspension of the labor contract; if the employee is not present at the workplace; unless otherwise agreed; then the employer has the right to unilaterally terminate the labor contract with the employee.
Please see more articles:
- What should employees do when a company owes 3 months salary in Vietnam?
- In Vietnam, can you arbitrarily deduct an employee’s salary?
Các câu hỏi thường gặp
According to the provisions of the Labor Code 2019, the working hours of minors are regulated as follows:
Working hours of minor employees from full 15 years old to under 18 years old; age must not exceed 08 hours in a day and 40 hours in a week.
Working hours of people under 15 years old; not more than 04 hours in 01 days and 20 hours in 01 weeks; and not be used over time, work at night.
Persons from full 15 years old to under 18 years old may work overtime; working at night in a number of occupations and jobs as prescribed by the Ministry of Labor, War Invalids, and Social Affairs.
Employees are responsible for complying with labor discipline, specifically:
Implement specific regulations on working time, rest time and order in the unit.
– Strictly comply with regulations on occupational safety and hygiene at the workplace; compliance with technical regulations and technology.
– Protect assets, business secrets and technology secrets of the unit.
When employees violate labor discipline, they may be subject to labor discipline; In case the employee loses tools and equipment, causing damage to the employer’s property, he/she must pay compensation in accordance with law.
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