Question:
Dear Lawyer, The Information and Communications Technology (ICT) department of our Company has recently encountered an operational incident, and as a result, the ICT Manager intends for employees to work an additional 11 hours per day beyond their regular working hours. My question is whether the tasks required to secure and restore lost IT data would fall within the scope of special overtime cases as defined by Article 108 of the Labor Code. How should the company proceed in relation to the specifics mentioned in this context?
Answer:
Regarding your inquiry, SB Law would like to provide the following response:
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Does the task of handling and securing lost IT data fall within the scope of the regulations for overtime work in special cases? (According to Article 108 of the Labor Code).
Based on the information provided by the Client, SB Law does not yet have sufficient specific data to evaluate whether the task of handling and securing IT data falls under the special overtime provisions stipulated in Article 108 of the 2019 Labor Code ("2019 Labor Code").
In the event of incidents occurring in the Information and Communication Technology ("ICT") department to ensure national defense and security tasks, or to prevent and mitigate the consequences of natural disasters, fires, dangerous epidemics, and disasters, the Company may apply the provisions of Article 108 of the 2019 Labor Code to require employees to work overtime up to 11 hours per day.
Article 108 of the 2019 Labor Code provides for overtime work in special cases:
“The employer has the right to request the employee to work overtime on any day without being restricted by the overtime hours limitation prescribed in Article 107 of this Code, and the employee is not allowed to refuse in the following cases:
- Implementing mobilization orders and ensuring national defense and security tasks as prescribed by law;
- Performing tasks to protect human life, property of agencies, organizations, and individuals in preventing and mitigating the consequences of natural disasters, fires, dangerous epidemics, and disasters, except in cases where there is a risk of affecting the life and health of the employee as prescribed by the law on occupational safety and health.”
If the situation does not fall under the special overtime provisions of Article 108 of the 2019 Labor Code as mentioned above, the Company must comply with the provisions of Article 107 of the 2019 Labor Code regarding overtime work.
Therefore, the Company needs to evaluate and review the cause of the incident in the ICT department to determine its origin.
In the event that the Company requires consulting and evaluation opinions from SB Law, we kindly request the Company to provide additional information so that SB Law can research and provide detailed and specific evaluations, including: (i) What is the incident in the ICT department? (ii) Detailed causes of the incident, and what caused it? (iii) What technical expertise does the Company need to resolve the issue?
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How should the Company handle this situation?
If the IT incident meets the conditions stipulated in Article 108 of the 2019 Labor Code as analyzed above, the Company can authorize overtime up to 11 hours/day.
In the event that the incident in the ICT department does not fall under the special cases stipulated in Article 108 of the 2019 Labor Code, the Company can consider the following options:
+ Option 1: Allocate additional human resources to resolve the issue and implement overtime regulations according to Clause 2 and 3, Article 107 of the 2019 Labor Code as follows:
“2. Employers are allowed to use employees for overtime work when fully meeting the following requirements:
a) Must obtain the consent of the employee;
b) Ensure that overtime working hours do not exceed 50% of the normal working hours in one day; in case the normal working hours are applied on a weekly basis, the total normal working hours and overtime working hours shall not exceed 12 hours in one day; and not exceed 40 hours in one month;
c) Ensure that the total overtime working hours of the employee do not exceed 200 hours in one year, except for the cases specified in Clause 3 of this Article.
3. Employers are allowed to use employees for overtime work not exceeding 300 hours in one year in some industries, trades, jobs, or the following cases:
a) Production and processing for export of textile, garment, leather, footwear, electrical, electronic products, and processing of agricultural, forestry, salt, and aquaculture products;
b) Production and supply of electricity, telecommunications, oil refining; water supply and drainage;
c) Resolving tasks that require highly specialized skills that the labor market does not fully and timely supply;
d) Resolving urgent tasks that cannot be delayed due to the seasonal, timing nature of raw materials, products, or to resolve tasks arising from unforeseen objective factors, due to the consequences of weather, natural disasters, fires, enemy sabotage, power shortages, raw material shortages, technical incidents of the production line;
đ) Other cases as prescribed by the Government.”
The Company can allocate additional existing human resources and optimize the overtime schedule to meet job requirements while ensuring the health and rights of employees. Regarding overtime hours, the Company adjusts overtime hours to comply with Article 107 of the 2019 Labor Code, limiting employees' overtime to no more than 12 hours/day and 40 hours/month.
+ Option 2: In the event the Company lacks manpower to handle the incident, the Company can consider hiring subcontractors (signing service contracts) or leasing labor from labor leasing companies to resolve the incident.
If the Company evaluates that this ICT incident requires a long time to resolve, the Company cannot mobilize additional existing human resources and does not have an optimal solution to improve efficiency, it may consider using this option. This is a solution that helps the Company quickly resolve arising work issues while avoiding excessive overtime for employees, ensuring legality and protecting employees' rights.
Note: When leasing labor from labor leasing companies, the position of leased employees must be permitted by law, specifically in this case, the position "System Programmer" (Appendix II of Decree 145/2020/ND-CP) can be considered.
