Ordered to stay for overtime day after day, with poor appraisals or lost bonuses for refusing — this is legally called unlawful use of overtime. The law does not ban overtime, but sets hard caps and requires the employee’s consent. This article explains the limits, exceptions, and complaint channels.
1. Three overtime limits that apply simultaneously
Under Article 107.2 of the 2019 Labor Code, an employer may use overtime only when all of the following are met:
- The employee’s consent — under Article 59 of Decree 145/2020/ND-CP, consent must be specific about duration, location, and the work performed; a generic “agrees to overtime” clause in the contract or internal rules is insufficient;
- No more than 50% of normal working hours in one day (for weekly schedules: total normal plus overtime hours not exceeding 12 hours/day); no more than 40 hours in one month;
- No more than 200 hours in one year — except designated industries allowed up to 300 hours/year (export manufacturing of textiles, garments, leather, footwear, electronics; agro-forestry-fishery processing; power, telecom; and other urgent cases under Article 107.3).
Exceeding any of these caps outside the special cases is a violation — even where the employee “volunteers” but total hours exceed the ceiling.
2. Two special cases requiring no consent
Under Article 108, the employer may require overtime on any day, without hour limits, and the employee may not refuse, in two cases:
- Executing mobilization orders for national defense or security duties;
- Work to protect human life and property in preventing or remedying natural disasters, fires, dangerous epidemics, and catastrophes (unless the employee’s own life or health is at risk).
Outside these two cases, any form of “forcing” overtime — threats of dismissal, wage cuts, or poor appraisals for refusing — is unlawful.
3. Overtime pay employees are entitled to
Under Article 98, overtime must be paid at least: 150% of the normal hourly wage on ordinary working days; 200% on weekly days off; 300% on public holidays, Tet, and paid leave days. Forcing overtime without paying the correct overtime rates is a separate violation subject to its own penalty.
4. Forced into overtime: where to complain?
Employees can follow this route:
- Step 1 — Grassroots trade union: report to the company union or employee representative organization for intervention and negotiation;
- Step 2 — First complaint: file a complaint with the employer itself (under Article 15 of Decree 24/2018/ND-CP, resolution within 07 working days);
- Step 3 — Second complaint: if dissatisfied, complain to the Chief Inspector of the Department of Home Affairs (the provincial labor authority since 01/03/2025) where the company is headquartered;
- Step 4 — Mediation or lawsuit: request a labor mediator (Article 188) or sue directly in the People’s Court; the violation may also be denounced to the Department Inspectorate for administrative sanction.
5. How are violating employers handled?
Using overtime beyond the caps or without employee consent is subject to administrative sanctions in the labor sector. From 10 September 2026, the penalty framework follows Decree 283/2026/ND-CP (replacing Decree 12/2022/ND-CP). Beyond fines, employers must pay all outstanding overtime wages and may face suspension of related operations for serious repeat violations.
6. Frequently asked questions
Q: My contract says “agrees to overtime when the company requires” — is forced overtime then lawful?
A: It may still be unlawful. Consent must be specific about duration, location, and work for each occasion (Article 59, Decree 145/2020), and total overtime must stay within the Article 107 caps.
Q: Can I be disciplined for refusing overtime?
A: Outside the two special cases in Article 108, employees may refuse overtime and the employer may not discipline, dock wages, or retaliate for it.
Q: What is the overtime rate on public holidays?
A: At least 300% of the normal hourly wage (Article 98), on top of the holiday pay already due.
Forced into excessive overtime or need a working-hours policy review? Contact us for advice.
Prepared by the FLAW AI Legal Council. This content is pending QA Council review before submission for approval; it is for reference only and does not replace legal advice for your specific situation.