In fact, due to production and business needs, or external force majeure factors such as fires, natural disasters, floods ... The employer has a plan to switch the employee to another job or position with the original labor contractual agreement.
1. When is the enterprise allowed to switch employees to jobs or positions other than the labor contract?
Pursuant to the provisions of Clause 1, Article 29 of the 2019 Labor Code, an employer may switch the employee to work other than the labor contract when:
- Encountering unexpected difficulties due to a natural disaster, fire, or dangerous epidemic;
- Taking measures to prevent and overcome labor accidents and occupational diseases;
- Electricity and water incidents;
- Due to the needs of production and business. In this case, the enterprise must specify it in the internal labor regulations or the collective labor agreement of the enterprise.
2. How long is the employer allowed to temporarily switch the employee to other jobs than the labor contract?
The enterprise may temporarily switch the employee to other jobs than the labor contract but must not exceed 60 cumulative working days in 01 years. In case an employer wants to switch employees for a period of more than 60 days, written consent is required.
- In case the switching period expires, but the employer wants the employee to continue to work at the new position, the employer must obtain the consent of the employee. Consent to the agreement can be by:
+ The Labor Contract Appendix contains provisions on the switch of a new job different from the initially agreed job description.
+ New labor contract between employer and employees. In this case, the employer and the employee may agree to terminate the initial labor contract and then sign a new labor contract.
In the event of the expiration of the switching period, the enterprise wants the employee to continue to work at the new position but the employee still wants to continue to do the initially agreed job description, the two parties will continue to perform the contract as signed in the original. The employer does not have the right to unilaterally terminate the labor contract with the employee in this case. However, the employee has the right to unilaterally terminate the labor contract if the employer does not arrange the work, work location, or working conditions as agreed in the labor contract.
3. What are the employer's obligations when switching employees?
The employer must notify employees at least 03 working days in advance when temporarily switching the employee to another job.
The content of the notice must include:
- The employee's temporary employment period;
- Arrangement of work suitable to the employee's health and gender.
4. What are the regulations on the employees' salary when they are switched?
The salary paid to the employee is the salary for the new job and the salary for the new job must be at least 85% of the salary for the old job, but not lower than the regional minimum salary set by the Government.
In case the salary of the new job is lower than that of the old job, the old salary may be kept intact within 30 working days.
Note: The employee does not agree to temporarily work other jobs than the labor contract for more than 60 cumulative working days in 01 year and must stop working, the employer must pay the salary for termination as prescribed.
5. How is the administrative penalty level for the illegal labor switch?
Based on the provisions of Clause 1, Article 5, Clause 1, and Clause 2, Article 10 of Decree 28/2020 / ND-CP, the employer may be administratively sanctioned for the acts of switching labor in contravention of regulations. Specifically:
- A fine of between VND 2,000,000 and VND 6,000,000 shall be imposed on the employer that acts of temporarily switching the employee to other jobs than the labor contract without notifying the employee 03 working days in advance or not clearly informing the temporary work duration or the job assignment is not suitable for the employee's health and gender.
- A fine of between VND 6,000,000 and 14,000,000 shall be imposed on the employer that commits one of the acts of switching the employee to another job compared to the labor contract for improper reasons, term or without a written contract. The employee's opinion according to the provisions of law.
- Labor Code 2019;
- Decree 28/2020 / ND-CP.