Considerations for enterprises during the recruitment process

Recruitment is one of the important stages in establishing labor relationships, aimed at finding candidates for the enterprise. Due to the concern about having to set recruitment criteria suitable for the job position to be recruited, many enterprises have forgotten or ignored legal regulations during this stage. This leads to many risks for the enterprise, including being punished for administrative violations as well as affecting the image and reputation of the enterprise. This article addresses some considerations for enterprises during the recruitment phase.

Discrimination in recruitment

One of the mistakes that many enterprises encounter today is the issue of discrimination and unequal treatment in recruitment, manifested through policies, job announcements, or the benefits that employees receive.

When widely posting hiring posts on websites, enterprises need to pay attention to the content of their job postings. For instance, recruitment information of some enterprises has exclusionary criteria in recruitment such as: “do not recruit TH people”, “only recruit single employees” or only recruit/not recruit a group of workers with specific characteristics such as “the company does not recruit employees with infectious diseases, HIV/AIDS, employees over 40 years old”. These contents may meet the company’s recruitment requirements at that time but unintentionally create discrimination in the recruitment process.

Pursuant to Clause 1 Article 8 of the Labor Code 2019, discrimination in employment is strictly prohibited. Such discrimination is defined as any act of differentiating, excluding, or preferring individuals based on race, color, national origin, ethnicity, sex, age, pregnancy, marital status, religion, belief, political opinion, disability, family responsibilities, HIV status, or trade union membership that adversely affects equality of opportunity in employment or occupation[1]. In fact, the aforementioned requirements may constitute a violation of the law, subjecting the employer to inspection and administrative penalties, leading to unnecessary damages to the enterprise. Consequently, enterprises may be fined between 10,000,000 VND and 20,000,000 VND for discriminatory behavior in labor recruitment.[2]

Enterprises should note that there are only a few cases where discrimination in the recruitment of workers is acceptable, stemming from the specific nature of the job, specifically: “Discrimination, exclusion or preference arising from the specific requirements of the job and acts of maintaining and protecting employment for vulnerable employees are not considered discrimination”[3]. Therefore, some physically demanding, dangerous or high-risk jobs such as repairing high-voltage power lines, manholes often prioritize recruiting men or specialized professions such as pilots, flight attendants of airlines will set certain criteria for health, appearance, height, etc. may not be considered discrimination in this case.

In addition to setting discriminatory recruitment criteria, many enterprises also require employees to engage in discriminatory behaviors, such as signing commitments not to have children within a certain period while working at the enterprise or requiring female employees to undergo pregnancy tests to confirm they are not pregnant at the time of recruitment. As mentioned, the above actions are considered discrimination based on maternity status and marital status under Clause 1, Article 8 of the Labor Code 2019. This violation is considered extremely serious and may be subject to inspection and penalties.

To minimize the risk of administrative penalties, enterprises should review the issued regulations, procedures, and recruitment information, and if necessary, eliminate any discriminatory content or requirements. In cases where the enterprise needs to prioritize candidates who meet specific criteria due to the nature of the job, it should include notes or explanations in the regulations to ensure compliance with legal provisions and maintain fairness and transparency in labor recruitment, and this should only be applied in cases specified by law. Moreover, organizing training sessions for recruitment staff on labor laws and employee rights is also a useful measure, helping to raise awareness among the parties involved and reduce the risk of labor law violations.

Enterprises apply a challenge period to employees

In practice, some enterprises impose a “challenge period” on employees during or after the probationary period, before signing the labor contract or during the validity period of the labor contract, in order to assess the employee’s suitability for the recruited position. So, is the application of this challenge period in accordance with legal regulations?

First of all, it must be affirmed that current labor laws do not stipulate a challenge period for employees, but instead stipulates a probationary period. According to current regulations, it can be understood that the probationary period is the time for both parties to assess the suitability of the labor relationship, the enterprise will evaluate whether the employee is suitable for the recruited position, and vice versa, the employee will consider the suitability of the job. During this period, if they want to “test” the employee, the enterprise can set probationary evaluation criteria. In case these criteria are not met, the enterprise can terminate the probationary contract with the employee. The advantage of terminating the contract during this period is that there is no need to notify the other party in advance or to bear any legal liability. According to the provisions of Clause 1, Article 24 of the Labor Code 2019, enterprises and employees can agree on probationary regulations in the labor contract or separate them into a probationary contract. Thus, to determine whether the termination of the employment contract during the challenge period is in accordance with the law, it is necessary to consider whether this challenge period is within the probationary period. If the challenge period is also the probationary period, both the enterprise and the employee have the right to terminate the probationary period during this time. However, if the challenge period is set outside the probationary period, the termination of the employment relationship must comply with legal regulations, specifically the regulations on terminating labor contracts. If the termination occurs during the challenge period but does not comply with the regulations on contract termination, the enterprise may be considered to have unilaterally terminated the labor contract illegally.     

Meanwhile, if the challenge period occurs after the end of the probationary period and the enterprise has not signed an employment contract, this is also considered a violation of the law. Because, when the probation period ends, the enterprise must inform the employee of the probation results[4] and sign an official labor contract if a probation contract was previously established, or the relationship between the parties will transition to an official labor relationship regarding the probation agreement in the labor contract. Therefore, there will be no time gap between the probation period and the official employment contract period for the company to apply the challenge period.   

Overall, recruitment is an activity that is familiar and carried out in every enterprise but is subject to many legal regulations regarding each specific action in this phase. Therefore, this is the stage where enterprises need to strictly comply with legal regulations to avoid potential risks that may arise for the enterprises.