Legal regulations on changes in positions of employees

In the context of increasing integration and fierce competition, organizational restructuring and changes in job positions to optimize operational efficiency have become inevitable for all enterprises. However, such changes must be grounded in solid legal foundations. NPLaw shall provide an in-depth analysis of the current legal regulations on changes in positions of employees, covering the forms of changes, applicable conditions, procedures, and essential considerations for enterprises to ensure compliance with the law, safeguard employees’ legitimate rights, and minimize potential legal risks.

In the context of increasing integration and fierce competition, organizational restructuring and changes in job positions to optimize operational efficiency have become inevitable for all enterprises. However, such changes must be grounded in solid legal foundations. NPLaw shall provide an in-depth analysis of the current legal regulations on changes in positions of employees, covering the forms of changes, applicable conditions, procedures, and essential considerations for enterprises to ensure compliance with the law, safeguard employees’ legitimate rights, and minimize potential legal risks.

I. Current situation regarding changes in positions of employees

Changes in employees’ job positions often occur during organizational adjustments, mergers, or company restructuring. Employers may change an employee’s position, effectively assigning the employee to work different from that agreed upon in the labor contract, under certain circumstances as prescribed by law.

However, in practice, violations still occur where positions of employees are altered unlawfully. So, what does the law specifically provide on this matter? Let us explore with NPLaw below.

II. Legal provisions on changes in positions of employees

1. What is a change in an employee’s position?

Current law does not define the concept of a change in position. However, based on relevant legal provisions, it may be understood as the employer assigning or transferring an employee to a different position or title within the same organization or enterprise, compared with the original position stipulated in the labor contract.

2. In what circumstances may an enterprise change an employee’s position?

An enterprise may change an employee’s position in several circumstances, including:

Due to production and business needs: The employer may temporarily assign an employee to perform work different from that agreed upon in the labor contract when facing unforeseen difficulties such as natural disasters, fires, dangerous epidemics, measures for preventing or remedying occupational accidents, occupational diseases, incidents relating to electricity or water supply, or other production and business needs, pursuant to Clause 1, Article 29 of the Labor Code 2019.
Due to changes in organizational structure or job positions: In certain cases, changes may result from corporate restructuring or requirements of the job position, as provided under Article 42 of the Labor Code 2019.
Pursuant to agreement between the employer and the employee.
As a disciplinary measure: The employee may be transferred or demoted to a lower position if they commit violations in accordance with the company’s internal rules and regulations.

3. Are employers subject to sanctions if they arbitrarily change employees’ job positions?

Pursuant to Article 11 of Decree No. 12/2022/ND-CP:

A fine ranging from 1,000,000 VND to 3,000,000 VND shall be imposed on employers who temporarily transfer employees to work different from the labor contract without notifying the employee at least 03 working days in advance, or without notification, or with unclear notification on the temporary assignment period, or assigning work that is inconsistent with the employee’s health or gender.
A fine ranging from 3,000,000 VND to 7,000,000 VND shall be imposed on employers who transfer employees to work different from the labor contract without proper reasons, within improper time limits, or without obtaining the employee’s written consent as prescribed by law.
Remedial measure: The employer shall be compelled to assign the employee to perform the work agreed upon in the signed labor contract.

III. Questions regarding changes in employees’ job positions

1. Is the employee’s consent required when changing their job position?

Any change in an employee’s position that leads to modifications in the labor contract must be notified to and agreed upon by the employee. Specifically, according to Article 33 of the Labor Code 2019, such changes must be implemented through agreement between the employer and employee by amendments or supplements to the labor contract.

2. If changing an employee’s position results in a change in salary, must the enterprise notify and reach an agreement with the employee?

The employer is obliged to notify and reach agreement with the employee. The agreement must be recorded in writing or included as an annex to the labor contract, in accordance with Article 22 of the Labor Code 2019.

3. Where may employees file a complaint if their position is changed without legitimate grounds?

Pursuant to Article 5 of Decree No. 24/2018/ND-CP on procedures for complaints:

First complaint: The employee submits a complaint to the employer.
Second complaint: If the employer fails to resolve the complaint or provides an unsatisfactory resolution, the employee may file a complaint with the Chief Inspector of the Department of Labor, War Invalids and Social Affairs where the enterprise is headquartered.
Additionally, the employee may initiate legal proceedings if a labor contract dispute arises.

Accordingly, if the employer changes the employee’s position without legitimate grounds, the employee may file complaints as outlined above.

4. What conditions must the enterprise comply with when changing an employee’s job position?

When changing an employee’s position, the enterprise must comply with certain conditions to safeguard employee rights and ensure legal compliance, including:

Providing prior notice and obtaining the employee’s consent regarding the new position, tasks, and reasons for the change. The notice period must be sufficient for the employee to prepare and adjust work arrangements as required by law.
Ensuring the new position is suitable to the employee’s qualifications, expertise, health, gender, and experience.
Ensuring that the change does not adversely affect the employee’s rights such as salary, insurance, working hours, and other benefits under the labor contract and law.
Amending or supplementing the labor contract, if necessary, to clearly record the terms relating to the new position so as to protect the rights of both parties and prevent disputes.

IV. Legal advisory services on changes in positions of employees

The above provides NPLaw’s insights into the issue of changes in employees’ positions. Should readers have any further inquiries, please contact NPLaw for comprehensive legal advice and assistance.