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Is the employer allowed to extend the probationary period according to Vietnamese law?

If the probationary period has ended but the enterprise has not yet been able to make a decision on whether to accept or refuse to accept employees into the company, can they extend the probationary period for further consideration?

The probationary period normally lasts about 2 months. Although it is quite a long time, for some businesses, the above time is not enough for them to fully grasp the ability of an employee to hold a particularly important position in the enterprise because that position requires a lot of important factors, and is not easy to change.

In case the employer is ‘hesitant’, not sure whether to accept or not to accept the employee, if it is not possible to agree on an extension of the probationary period, the enterprise will usually choose not to accept and seek other suitable candidates.

Therefore, in these cases, employees will often accept an extension of the probationary period even though they may know that this is against the law and directly affects their interests. Employees in the probationary regime receive only 85% of the salary compared to the official position.

As it is better to receive a lower salary for a few months than to receive no salary or lose the job.

Regulations on maximum probation period in Vietnam

Article 25 of the Labor Code 2019 has detailed regulations on the maximum probationary period depending on the type of work of the employee, specifically:

– For the job of a business manager: The maximum probation period is 180 days.

– For jobs with professional titles that require professional or technical qualifications from college or higher: The maximum probation period is 60 days.

– For jobs with professional titles that require intermediate professional qualifications, technical employees, and professional staff: The maximum probation period is 30 days.

– For other jobs: The maximum probation period is 06 working days.

Probation is an optional period. However, if there is a probationary period, that period will not exceed the above timelines in order to protect the interests of employees as there have been many cases of employers extending the probationary period to pay less for employees as well as other benefits.

A notable misconception is that the employer will not have to pay social insurance for the employee, or the payment of social insurance is optional, however, the actual issue depends on the type of contract signed.

If the signed contract is a probationary contract, the employee will not be required to participate in social insurance premiums. If the contract is a labor contract with probation content, the employer will have to pay social insurance for the probationary period in accordance with the law.

Intentionally prolonging the probationary period does not bring real benefits to the employer, but only contributes to the increase in the number and severity of violations of the law.

Point b, Clause 2, Article 10 of Decree No. 12/2022/ND-CP sanctioning administrative violations in the field of labor, social insurance, and overseas Vietnamese employees under contracts stipulating that the employer commits the act of exceeding the prescribed probationary period will be fined from 2,000,000 VND to 5,000,000 VND.

In addition, the employer must pay the employee in full for the period of work beyond the probationary period, ie 100% instead of 85%.

Agreement on probation period with employees

As analyzed above, although it is against the law to increase the probationary period, for businesses that really need more time to consider the suitability of employees, the agreement with employees on an extension of time will usually be agreed to by employees if they themselves feel it is in their interests.

In some cases, it was the employee who benefited more from the extension, because the company gave them ‘one more chance’ to prove they were a good fit for the position.

However, it should be noted that the law may not consider which party is more beneficial. Even in the case where the two parties agree with greater benefits for the employee, the employer may also be considered for breaking the law if detected or denounced.

Thereby, the employer should carefully consider this issue when agreeing to extend the probationary period with the employee.

ASL LAW is the top-tier Vietnam law firm for Employment and Labor Law. If you need any advice, please contact us for further information or collaboration.


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