Review of the legality of recruitment procedures: what should enterprises consider?

In an increasingly competitive labor market and the continuous update of labor regulations, reviewing the legality of recruitment procedures has become an essential requirement for enterprises. A recruitment process that fails to comply with legal requirements may expose an enterprise to legal risks, labor disputes, and reputational damage. Thus, understanding the applicable legal framework, identifying potential shortcomings, and conducting periodic compliance reviews are necessary to ensure that recruitment activities remain both effective and legally compliant.

I. Current level of legal compliance in recruitment activities

At present, the level of legal compliance in recruitment activities varies significantly among enterprises. While many enterprises have established well-structured recruitment procedures in accordance with labor laws, numerous violations still occur in practice, including requests for inappropriate information, lack of transparency in recruitment announcements, and incomplete recruitment procedures.

Such shortcomings may lead to labor disputes and legal liabilities for employers. Accordingly, strengthening the review of the legality of recruitment procedures is essential to ensure legal compliance and enhance professionalism in human resources management.

II. Overview of the review of the legality of recruitment procedures

1. What is a review of the legality of recruitment procedures?

A review of the legality of recruitment procedures is a process by which an enterprise examines and evaluates every stage of its recruitment activities, including job advertisements, application intake, interviews, candidate assessments, and the execution of employment contracts, against the requirements of current labor laws.

The objective of such a review is to identify inappropriate provisions, procedural deficiencies, or potential legal violations so that timely corrective actions can be implemented. It helps ensure that recruitment activities are conducted transparently, lawfully, and with minimal legal risk to the enterprise.

2. Common recruitment mistakes frequently made by enterprises

In practice, many enterprises continue to make various errors during recruitment, including:

• Publishing recruitment announcements that lack transparency or contain discriminatory content;
• Requiring applicants to provide unnecessary personal information;
• Failing to conduct complete interview and assessment procedures;
• Applying inconsistent recruitment criteria.

In addition, some enterprises commit violations during the employment contract stage, such as:

• Delaying the execution of employment contracts;
• Using inappropriate types of employment contracts;
• Failing to clearly explain employees’ rights and obligations.

3. Why should enterprises review their recruitment procedures?

Enterprises should conduct reviews of their recruitment procedures to ensure compliance with labor laws and to prevent violations that may result in sanctions or disputes.

Such reviews also enable employers to identify procedural deficiencies and standardize recruitment practices accordingly.

Furthermore, reviewing recruitment procedures contributes to:

• Enhancing transparency and professionalism in recruitment;
• Attracting high-quality talent;
• Reducing legal risks associated with employment relationships.

III. Legal regulations governing the review of recruitment procedures

1. How is the recruitment process regulated by law?

Current legislation does not prescribe a mandatory recruitment procedure consisting of specific steps. However, it establishes fundamental principles that employers must comply with when recruiting employees.

Specifically, under Article 8 of the Labor Code 2019, employers are prohibited from discriminating against applicants or infringing upon their honor and dignity during recruitment. Additionally, under Article 11 of the Labor Code 2019, employers may recruit employees either directly or through employment service organizations, provided that the recruitment process is conducted openly, transparently, and in compliance with the law.

Accordingly, enterprises are free to develop their own recruitment procedures, including:

• Recruitment announcements;
• Application receipt and processing;
• Interviews;
• Candidate assessments;
• Execution of employment contracts.

However, the process must comply with the provisions of the Labor Code 2019 and relevant implementing regulations, particularly those concerning equal treatment, non-discrimination, and the protection of applicants’ personal information.

2. What conduct is prohibited during recruitment?

Pursuant to Article 8 of the Labor Code 2019, employers are prohibited from engaging in the following acts during recruitment:

• Discrimination in employment;
• Mistreatment of employees or forced labor;
• Sexual harassment in the workplace;
• Exploiting vocational training or apprenticeship arrangements for profit, labor exploitation, or compelling trainees to engage in unlawful activities;
• Employing workers who lack the required training or national vocational skill certificates for occupations where such qualifications are mandatory;
• Soliciting, enticing, or making fraudulent representations for the purpose of human trafficking, labor exploitation, or forced labor;
• Unlawfully employing minors.

3. Administrative sanctions for recruitment-related violations

Pursuant to Article 8 of Decree No. 12/2022/ND-CP, administrative sanctions for violations relating to recruitment and labor management include:

- Fines ranging from 1,000,000 VND to 3,000,000 VND for:

• Failure to declare labor usage;
• Charging recruitment fees to employees;
• Failure to update or present labor management records upon request by competent authorities.

- Fines ranging from 5,000,000 VND to 10,000,000 VND for:

• Employment discrimination;
• Employing workers who do not satisfy mandatory training or certification requirements;
• Failure to report labor fluctuations;
• Failure to establish or properly maintain labor management records.

- Fines ranging from 50,000,000 VND to 75,000,000 VND for:

• Soliciting, enticing, promising, or making fraudulent advertisements for recruitment purposes aimed at labor exploitation or forced labor, where criminal liability is not yet triggered.

In addition, employers may be required to implement remedial measures, including reimbursing any unlawful recruitment fees collected from employees.

4. Legal risks arising from failure to review recruitment procedures

Failure to review the legality of recruitment procedures may expose enterprises to numerous legal risks under the Labor Code 2019 and Decree No. 12/2022/ND-CP, including:

• Administrative sanctions under Article 8 of Decree No. 12/2022/ND-CP for acts such as employment discrimination, charging recruitment fees, or failing to comply with labor management obligations;
• Labor disputes arising from violations of recruitment principles prescribed under Articles 8 and 11 of the Labor Code 2019, including discrimination or infringement of an applicant’s honor and dignity;
• Risks of invalid employment contracts or contractual disputes resulting from procedural defects during recruitment;
• Obligations to remedy violations and refund unlawfully collected amounts under Clause 4, Article 8 of Decree No. 12/2022/ND-CP;
• Reputational damage and human resource management risks, particularly where violations are systematic or prolonged.

IV. Questions regarding the legal compliance review of recruitment procedures

1. When should an enterprise conduct a review of its recruitment procedures?

Enterprises should conduct periodic reviews of the legal compliance of their recruitment procedures or whenever there are changes in labor legislation, based on the labor management principles set out in Article 12 of the Labor Code 2019 regarding employers’ responsibilities in labor management.

In addition, a review should be conducted in the following circumstances:

• When the enterprise establishes or amends its recruitment procedures;
• When there are changes in human resources policies or organizational structure;
• When labor disputes or complaints relating to recruitment arise;
• When labor laws or administrative sanction regulations are amended.

2. What are the main aspects that should be examined during a review of recruitment procedures?

When reviewing the legal compliance of recruitment procedures, enterprises should assess the core elements necessary to ensure compliance with the Labor Code 2019, particularly Articles 8, 11, and 12, including:

• Recruitment announcements: Whether they comply with the principle of non-discrimination under Clause 1, Article 8 of the Labor Code 2019.
• Application receipt and processing procedures: Whether they are transparent and do not require information contrary to legal regulations or infringe upon applicants’ privacy rights.
• Interview and assessment activities: Whether they are conducted objectively and do not obtain conduct that violates the dignity or honor of employees, as prohibited under Clause 2, Article 8 and Article 11 of the Labor Code 2019.
• Execution of employment contracts: Whether the appropriate type of labor contract is entered into at the correct time and with legally compliant contents.
• Post-recruitment labor management: Whether labor management records are properly established and updated in accordance with Article 12 of the Labor Code 2019.

3. Is it necessary for small and medium-sized enterprises to review their recruitment procedures?

Small and medium-sized enterprises are equally required to comply fully with the provisions of the Labor Code 2019, particularly:

• Article 8 (Prohibited Acts in Labor Relations);
• Article 11 (Recruitment of Employees);
• Article 12 (Responsibilities for Labor Management).

Accordingly, reviewing the legal compliance of recruitment procedures is necessary in order to:

• Ensure that recruitment activities do not involve any prohibited conduct under Article 8 of the Labor Code 2019;
• Reduce the risk of administrative sanctions under Article 8 of Decree No. 12/2022/ND-CP;
• Prevent labor disputes arising from recruitment-related errors;
• Standardize human resources processes and enhance operational transparency and professionalism.

4. How can an enterprise develop a recruitment process that is both effective and legally compliant?

To establish a recruitment process that is both effective and legally compliant, enterprises should design and implement it in accordance with the Labor Code 2019. Specifically, enterprises should:

• Develop a transparent and clearly structured recruitment process, covering recruitment announcements, application receipt, interviews, candidate evaluations, and employment contract execution, while ensuring compliance with the non-discrimination principle under Clause 1, Article 8 of the Labor Code 2019.
• Standardize objective recruitment criteria that are genuinely related to job requirements and avoid any criteria that infringe upon privacy rights or constitute discriminatory treatment.
• Execute employment contracts in full compliance with the requirements of the Labor Code 2019 to minimize future disputes.
• Fulfill labor management obligations in a timely and proper manner under Article 12 of the Labor Code 2019, including maintaining and updating labor management records.
• Regularly review the legal compliance of recruitment procedures to promptly adjust them in response to legislative changes or emerging risks.

5. Can enterprises conduct the review themselves, or should they engage a third party to ensure objectivity?

Current laws do not require enterprises to engage a third party when reviewing the legal compliance of their recruitment procedures. Thus, enterprises may conduct such reviews internally.

However, in practice, retaining a third party, such as legal counsel or a professional legal consulting firm, is often recommended where the enterprise:

• Has a large scale of operations or a complex recruitment process;
• Is in the process of standardizing its human resources management system;
• Wishes to ensure greater objectivity and identify legal risks more comprehensively;
• Has previously encountered labor disputes or administrative sanctions relating to recruitment.

V. Why should enterprises seek legal advice from NPLaw regarding the legal compliance review of recruitment procedures?

Reviewing the legal compliance of recruitment procedures requires in-depth legal expertise and practical experience to fully identify potential risks at every stage of the recruitment process.

The lawyers at NPLaw can assist enterprises in conducting a comprehensive assessment of their recruitment procedures, identifying non-compliant areas, and proposing practical and effective corrective measures. Moreover, the involvement of legal professionals helps enterprises establish transparent recruitment procedures, reduce errors, and proactively prevent labor disputes from the outset.

With extensive experience in labor law and corporate governance, NPLaw not only assists in resolving existing issues but also helps enterprises optimize their recruitment processes in a legally secure and sustainable manner.

The information provided above is for reference purposes only. Should you require detailed advice regarding a specific matter, please contact NPLaw Firm for prompt assistance.