CAN EMPLOYERS FORCE EMPLOYEES TO WORK OVERTIME?

Situation: I’m an employee of Company H specializing in confectionery production. On normal days, I only work 8 hours. However, during the year-end period to meet the demand for candies and cakes for the Tet holiday in 2024, the company has required me to work overtime to meet the required quantity for the market. Sometimes I have to work until 1 or 2 in the morning, even though I do not agree. So, I would like to ask the lawyer whether Company H's requirement for employees to work overtime like this violates any legal regulations?" 

Reply:

Thank you for sending your question to FDVN Law Firm (“FDVN”). Regarding your consulting requests, after studying the relevant legal regulations, FDVN would like to provide you with the information as follows:

1. Is the company allowed to force employees to work overtime? 
According to Clause 2, Article 107 of the 2019 Labor Code, regulations on overtime work are as follows: 2.  An employer has the right to request an employee to work overtime when all of the following conditions are met:  i) The employee agrees to work overtime;  ii) The number of overtime working hours of the employee does not exceed 50% of the normal working hours in 01 day; in case of weekly work, the total normal working hours plus overtime working hours shall not exceed 12 hours in 01 day, and 40 hours in 01 month; In case the regulation on normal weekly working hours is applied, the total number of normal working hours and overtime hours must not exceed 12 hours in 1 day; no more than 40 hours in 1 month;  iii) The total overtime working hours do not exceed 200 hours in 01 year, except for the cases specified in Clause 3 of this Article.

At the same time, Article 108 of the Labor Code 2019 also stipulates that only in some cases the employer has the right to request employees to work overtime without limiting the number of working hours and the employee cannot refuse, which are the following cases: 

1. Execution of a conscription order for the purpose of national security or national defense as prescribed by law;
2. Performance of tasks necessary to protect human life or property of certain organizations or individuals in the prevention and recovery of natural disasters, fires, epidemics and disasters, unless those tasks threaten the employees’ health or life as prescribed by occupational safety and health laws.
In your case, the company has required you to work overtime without your consent. Furthermore, as you have presented, on normal days, you only work 8 hours per day. However, during the year-end period, overtime work extends until 1 or 2 in the morning, exceeding 50% of the normal working hours per day. Additionally, you do not fall into any of the special overtime cases specified in Article 108 of the Labor Code of 2019.
Therefore, it is against the law for Company H to ask you to work overtime and not complying with the overtime hours limitation. 

2. The legal provisions governing penalties for overtime work violations.
In case the company mobilizes workers to work overtime without their consent, except as provided for in Article 108 of the Labor Code, administrative fines ranging from 40,000,000 VND to 50,000,000 VND shall be imposed, as stipulated in Clause 3, Article 18, and Article 6 of Decree No. 12/2022/NĐ-CP. If there is a violation involving the mobilization of workers to work overtime beyond the hours prescribed by law, penalties shall be imposed according to one of the levels specified in Clause 4, Article 14, and Article 6 of Decree No. 12/2022/NĐ-CP.

a) From 10,000,000 VND to 20,000,000 VND for violations involving 01 to 10 employees;
b) From 20,000,000 VND to 40,000,000 VND for violations involving 11 to 50 employees;
c) From 40,000,000 VND to 80,000,000 VND for violations involving 51 to 100 employees;
d) From 80,000,000 VND to 120,000,000 VND for violations involving 101 to 300 employees;
d) From 120,000,000 VND to 150,000,000 VND for violations involving 301 or more employees.

Above is FDVN's legal opinion regarding your consulting request based on legal regulations. Hopefully FDVN's advice will be useful to you.

According to Pham Van Viet - FDVN Law Firm

-----------------------------------------------------------------------