A probation clause that runs one day past the legal cap is not a minor drafting slip. Under Vietnamese law, that clause is void. The employee is treated as having passed probation on the first day of work — and the employer loses the right to end the engagement on probation grounds.

Most employment contracts in Vietnam include a probation clause. Fewer than half get the duration right. The rules are short and specific, but they are easy to apply to the wrong category — and the cost of getting the category wrong falls entirely on the employer.

This guide sets out the probation period rules under Vietnam's Labour Code 2019, the traps that catch employers out, and the practical steps HR teams should take before the next hire.

The four probation caps under the Labour Code 2019

Vietnam's Labour Code 2019 (Law No. 45/2019/QH14) sets four maximum probation periods. The cap is tied to the qualification level the role requires — not to the seniority, title, or salary of the person hired.

Maximum probation Role category
180 days Enterprise managers under the Law on Enterprises or the Law on Management and Use of State Capital
60 days Positions requiring a college-level qualification or higher
30 days Positions requiring intermediate or vocational qualifications, technicians, and skilled workers
6 working days All other positions

The most common error is classifying a role by how senior it feels rather than by the qualification it requires. A senior hire who does not hold a formal managerial position under the Law on Enterprises does not qualify for the 180-day cap. Get the category wrong by one level and the clause falls outside the law.

Note two points on scope. Probation cannot be applied to a labour contract with a term of less than one month. And the 6-day figure is counted in working days, while the other three caps run in calendar days.

Three rules that catch employers out

Beyond the duration caps, three further rules decide whether a probation clause holds up.

One probation per role. A job may be subject to probation only once. An employer cannot extend a probation period beyond the agreed term, and cannot run a second probation for the same role. If more evaluation time is needed, the answer is a better-defined role or a fixed-term contract — not a repeat probation.

Probation salary of at least 85%. Pay during probation must be at least 85% of the agreed salary for the official role. Two conditions sit underneath this. The 85% is a floor, not a target — employers may pay the full salary, and many do to attract talent. And the salary used as the base must itself meet or exceed the applicable regional minimum wage.

Termination without notice — if agreed in writing. During probation, either party may end the arrangement at any time, without notice and without compensation. That right exists only where the probation was properly agreed in writing before work began. Without a written probation agreement, the employer cannot rely on it.

What happens when the clause exceeds the cap

If the probation period in your contract exceeds the statutory maximum, the excess is not simply trimmed back to the legal limit. The consequence is more serious.

The employee is treated as having passed probation from the first day of work. The employer loses the right to terminate on probation grounds. If the employer terminates anyway — believing the person is still on probation — that termination is exposed to a wrongful dismissal claim, with reinstatement and back-pay risk attached.

This is why the duration is not a detail to leave to a template drafted years ago. One overlong clause converts an at-will probation into a full employment relationship the employer never intended to form.

Two ways to structure probation — and why it affects cost

The Labour Code allows two structures, and the choice has real financial consequences.

Option 1 — Probation inside the labour contract. Probation terms sit within a single labour contract. This is simpler to administer, but it means the labour contract is in force from day one. Where that contract has a term of one month or more, compulsory social and health insurance obligations apply from the start of probation. From 1 January 2026, unemployment insurance also attaches to labour contracts of one month or more — closing the gap that previously let shorter arrangements avoid it.

Option 2 — Standalone probation agreement. A separate probation agreement covers only the evaluation period. If the employee passes, the parties then sign the labour contract. Because a standalone probation agreement is not itself a labour contract, the employee is not a compulsory-insurance participant and no contributions are paid into the insurance funds during probation. The trade-off is a second signing step, a clean handover into the labour contract, and a payment obligation many employers miss — explained in the next section.

For most employers, a standalone probation agreement gives the cleaner position: it separates the evaluation from the permanent relationship, keeps compulsory fund contributions out of the trial period, and preserves the no-notice exit on both sides.

No social insurance during probation — but the employer still pays

Choosing a standalone probation agreement does not let the employer simply keep the saving on insurance. The law redirects it to the employee.

Under Clause 3, Article 168 of the Labour Code 2019, where an employee is not subject to compulsory social insurance, the employer must pay that employee an additional amount, at the same time as salary, equivalent to the contributions the employer would otherwise have paid into the funds. A probationer on a standalone agreement falls squarely within this rule.

In practice, this means the employer's saving on fund contributions is paid to the probationer as cash instead. The employer's combined statutory rate is currently about 21.5% of the salary base — social insurance 17.5%, health insurance 3%, and unemployment insurance 1%. So the probationer receives roughly an extra 21.5% on top of the probation salary, and the employer's cost is broadly the same as if contributions had been made.

Two points employers get wrong here:

This rule applies only to the standalone-agreement route. If probation sits inside a labour contract of one month or more, normal compulsory insurance runs instead — and, from 1 January 2026, that includes unemployment insurance.

Build the probation agreement to do more than set a date

A probation agreement is often the first document a new hire signs — and the point at which they first touch confidential systems, customer data, and company tools. A duration-only agreement leaves those exposures unaddressed. A well-drafted probation agreement should also cover:

These clauses matter most in exactly the roles that are hardest to classify — marketing, content, sales, and technical hires who handle valuable data and produce assignable work from day one.

What HR teams should do now

Before the next hire, run this check against every standard template:

About the author

Diep Hoang is the Founding Partner of Dilinh Legal, a business law firm in Ho Chi Minh City. She founded the firm in 2010 and has built it into one of Vietnam's leading practices in Corporate and M&A. Diep has been ranked by Chambers as a leading lawyer in Corporate & M&A since 2020. Dilinh Legal is ranked by Chambers Asia in Corporate & M&A, Dispute Resolution, and Labour & Employment, and by Legal500 in Corporate & M&A and Dispute Resolution.

For guidance on the wider contract framework, Dilinh Legal's Labour & Employment team can review how your probation clauses sit within your broader employment contract structure under the 2019 Labour Code.

For a review of your standard employment and probation templates against the current caps, contact Dilinh Legal at contact@dilinh.com.