During the implementation of labor contracts, there are many cases where employees are detained to serve the investigation, prosecution or trial in criminal cases. This situation raises an important question about the rights and legal status of employees in labor relations: Does being detained mean the termination of the labor contract?

In this legal article, we will analyze in detail to clarify that: (1) being detained does not mean losing your job, and (2) the legal regulations related to suspending the labor contract in this case.

1. Being detained does not mean losing the job

Detention is one of the preventive measures under the Criminal Procedure Code applied to promptly prevent crimes or when there is evidence that the accused will cause difficulties in investigation, prosecution and trial or the accused will continue to commit crimes or to ensure the execution of the sentence. If an employee is involved or suspected of being involved in a criminal case, the employee may be placed in detention and cannot work during the detention period or until there are new decisions from the Procuracy or the Court.

Meanwhile, job loss can be understood as a situation where the labor contract between the parties is terminated according to one of the grounds prescribed in Article 34 of the 2019 Labor Code. One of those grounds is when the employee is sentenced to imprisonment but is not given a suspended sentence or is not eligible for release according to the provisions of Clause 5, Article 328 of the Criminal Procedure Code, the death penalty or being prohibited from doing the job stated in the labor contract according to a court judgment or decision that has come into legal effect. Thus, only when an employee is detained and then sentenced to prison according to an effective judgment will he or she experience “job loss” according to legal regulations.

According to Article 30 of the 2019 Labor Code, in the event that an employee is detained or imprisoned in accordance with the provisions of the criminal procedure law, the employer has the right to suspend the performance of the labor contract. Further handling will be based on the actual situation — such as when the employee is released after the end of the detention period, there is a decision to suspend the investigation, or there is a verdict that has come into legal effect. Depending on each specific case, the employer can accept the employee back to work or terminate the labor contract if the employee is no longer qualified to continue performing the labor contract. 

2. Suspension of labor contracts and relevant considerations

First, the nature of labor contract suspension

The suspension of a labor contract is understood as the temporary cessation by both the employee and the employer of the exercise of their respective rights and obligations under the labor contract for a certain period, with the possibility of resuming the performance of the contract in the future. In the event that the employee is no longer eligible to continue working, the employer has the right to terminate the labor contract in accordance with the law.

The suspension of the labor contract serves as a legal mechanism to protect the rights and interests of both the employee and the employer in special situations, when the employee is temporarily unable to perform their contractual obligations due to objective events such as detention, temporary imprisonment, military service, long-term medical treatment, or other reasons as prescribed by law. During the suspension period, the employee is temporarily exempt from performing work, while the employer is also released from obligations towards the employee during the period of non-performance.

Second, responsibilities of the parties during the labor contract suspension

a. Reinstatement of employees after the suspension period

According to Article 31 of the 2019 Labor Code, “Within 15 days from the expiry of the suspension period of the employment contract, the employee shall be present at the workplace and the employer shall reinstate the employee under the employment contract if it is still unexpired, unless otherwise agreed by both parties or prescribed by law.”

Based on the above provisions, during the suspension of the labor contract, the following situations may arise:

(i) Expiration of the labor contract during the suspension period: The employment relationship will automatically terminate upon the expiration of the contract term. In this case, the employer must comply with the obligation to give prior notice of the termination as prescribed in Article 45.1 of the 2019 Labor Code.

(ii) The employee fails to return to work within 15 days from the end of the suspension period: The employer has the right to unilaterally terminate the labor contract in accordance with Article 36.1.d of the 2019 Labor Code, and must ensure the prior notice period according to Article 36.2 of the same law.

(iii) The employee is being held in detention and wishes to terminate the labor contract: In this case, to avoid legal risks, the termination should only proceed when the employee provides a written document clearly stating their intention to terminate the contract. After that, the two parties can sign an agreement to terminate the labor contract and the employer needs to carry out the termination notice procedure in accordance with regulations.

b. Responsibilities related to social insurance payment during the labor contract suspension due to detention

According to Article 30.2 of the 2019 Labor Code, during the suspension period of the labor contract, the employer is not obliged to pay salary and other benefits under the labor contract (including social insurance, bonuses, subsidies, allowances, etc.), unless otherwise agreed by the parties or otherwise provided by law.

Accordingly, if the employer and employee have an agreement to continue paying social insurance during the employee’s detention, social insurance payments will be made according to that agreement.

In addition, in the case of employees being detained, as mentioned above, the employer has the right to temporarily suspend social insurance payments. However, according to Article 88.2 of the 2014 Law on Social Insurance, if after the detention period, the employee is determined by the competent authority to be wrongfully convicted, the employee and the employer are responsible for repayment for social insurance payments for the entire detention period. In the 2024 Law on Social Insurance (effective from July 1, 2025), this regulation has been adjusted. Accordingly, during the detention period, the employee and the employer are allowed to temporarily suspend social insurance payments. After that, if the employee’s salary “retrospectively paid in full” for the period of detention, the parties must make social insurance repayments for the suspension period. However, as the 2024 Social Insurance Law 2024 has not yet come into effect, specific guiding documents on the conditions of “retrospectively paid in full ” have not been issued. Therefore, employers need to regularly update legal regulations to ensure proper and timely handling of cases of employees being temporarily detained.

Another issue that needs to be noted when a business has employees in detention is the adjustment of social insurance participation information. Specifically, since there is no obligation to pay social insurance during the detention period, the business must carry out the procedure of “reporting a reduction” in the number of employees covered by social insurance according to the provisions of Article 98.1 of the 2014 Law on Social Insurance and Article 29.1 of the 2024 Law on Social Insurance 2024.

3. Conclusion

From a legal perspective, the detention of an employee does not mean the termination of the employment relationship. This provision is intended to protect the rights of the employee – the weaker party in the employment relationship. At the same time, the mechanism for suspending the performance of the employment contract also helps businesses reduce their financial burden during this time, thereby contributing to maintaining balance and fairness in the employment relationship.

However, during the management process, employers need to pay special attention to the related obligations as presented above, as well as proactively update legal changes and comply with legal procedures to minimize potential risks.