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13 January 2020

Leadership and particular independence in the Working Environment Act

It is a common practice that employers use the phrase “leading” or “particularly independent” regarding specific jobs or employees. In this article, we will explain what requirements are set for such positions and what are the consequences from the employee’s point of view.

According to the Working Environment Act, leadership means a senior position with clear managerial functions (like department head or office manager). It’s usually associated with greater responsibility and the possibility of making fully independent decisions on behalf of the company. Also, the employee in the leading position can decide for himself, determining the need for his work and, to a large extent, manage his working hours.

The other special group of employees is particularly independent workers, meaning employees without direct managerial functions but who still have senior and responsible positions. Those employees prioritize their tasks, assign work to others, and decides when and how to perform their duties. Examples include department leaders, office managers and others who have a significantly greater responsibility than the majority of the company’s workers.

Requirements from the Working Environment Act

Remember that the job title itself or the scope of duties is not definitive when deciding on leadership or particular independence. The ability to manage working hours is also not sufficient. Although The Norwegian Labour Inspection Authority defines senior management as overall positions with apparent managerial responsibilities, it is clear that the real-life situations decide in this matter. Particular independence comes with soundly stated autonomy of work.

It is crucial to remember that when you have a particularly independent job, you are exempt from the rules on the working time specified in the Working Environment Act. Why? Because generally, such jobs require more flexibility than the regulations allow. This also means that you are not entitled to overtime pay, which is why it is customary that employees in a particularly independent position receive financial compensation.

Moreover, employees exempted from the working time regulations are entitled to reduced working hours and exemptions from night work. The company has overall responsibility for employee’s well-being and safety. Excessive work pressure, especially for managers, may result in breaking the HSE rules.

When the particular independence is assumed wrongly, the rules on working time still apply. This means that employees can claim payment for overtime work under the law. Of course, the employee must prove the extent of overtime work. In response to that, the company may have to repay overtime work for even three years back.

Expectations versus reality

To put things in perspective: Tekna’s lawyers manage a considerable number of employment contracts within a year. Vika, a recent graduate, has submitted her job offer to Tekna’s legal department. The contract states “an annual wage 500,000 NOK. We consider this job particularly independent, so overtime is not eligible. We expect work beyond normal working hours”.

What consequences will it have for Vika? Is it right to consider fresh alumni as a particularly independent employee? What does it take to be considered particularly independent?

Tekna’s experience is that the exception rule (about working hours and overtime work) is used to a greater extent than what the wording provides. As said before, it is not necessarily true that the given employee is leading or particularly independent, just because the employer has written in the agreement that the employee does not receive overtime compensation.

A leadership or particular independence often means that the workload is higher, and the hourly wage can be lower than expected (if the basic salary does not correspond with the workload). Therefore, if you come across such a job offer, remember to negotiate a good enough base salary that can balance the overtime workload.

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