Are you not paid overtime? It may be illegal
A project engineer was paid NOK 120,000 in overtime pay after being treated unfairly. NITO's lawyer warns all employees that some companies abuse the scheme with a particularly independent position.
An increasing number of employees are missing out on overtime pay, even though they are entitled to it. Overtime must in principle be paid, but the Working Environment Act allows for exceptions for employees in senior positions and in particularly independent positions.
NITO's lawyers see an increasing tendency for employers to incorrectly characterise a position as particularly independent or leading in order to avoid extra salary payments to which the employee is entitled under the Working Environment Act.
A project engineer who is a NITO member and who wishes to remain anonymous says:
" When my employer reported the need for overtime, it wasn't just for an hour or two. It could be three or four evenings in a row, in addition to weekends and night work. When I asked about overtime pay, I was told that all the extra hours I had worked were compensated in annual bonus.
He had a particularly independent position in the employment contract and worked in water and sewerage systems. The employer believed that it was the needs of the project that governed the working hours and that all overtime was already included in his job position. Asked NITO for help
Asked NITO for help
After working overtime for several years worth more than NOK 200,000, he
layoff notice on the grounds that the situation in the company was bad. This was related to the corona pandemic.
" Then I decided to ask NITO for help, because I had not been paid for the time I had actually worked, nor was I paid overtime," he says.
NITO lawyer Anne Kathrine Fokk received the case and found several problematic conditions:
"It was obvious that the position was not very independent. Our member did not have the opportunity to delegate tasks to others, did not have financial responsibility and the working hours were governed by the milestones in the project. He was therefore entitled to be paid his overtime hours," Fokk explains.
Characteristics of particularly independent positions
- The employee often has a superior and responsible position in the company with an obvious degree of independence
- The employee largely controls his or her own working hours and has the opportunity to influence deadlines and external circumstances for the work
- A specific assessment must be made in each individual case to assess whether the position is exempt from the Working Environment Act's working hours provisions
- Employees who work permanent hours and have their tasks delegated by their manager cannot be mentioned as employees with a particularly independent position
"At NITO, we often see that the employer incorrectly characterizes a position as particularly independent or leading in order to avoid paying for work beyond normal working hours. Without a detailed description of the position, it may lead to some companies trying to use this type of position to their advantage, Fokk warns.
Came to an agreement and got paid
On behalf of the member, NITO submitted an overtime claim and through negotiations, the parties reached an agreement on the payment of half of the hours. That amounted to just under NOK 120,000.
" No one should work for free, regardless of position, industry or job title. It's unfair," says the project engineer and makes a request:
"I would recommend all employees to unionize. If you are a technologist or engineer, you should choose NITO.
" At NITO, you get access to a number of benefits, including highly skilled lawyers. Do not wait to ask for help, with time it will become more difficult to clarify the situation. Involve your trade union if you are in a situation where the employer does not comply with the Working Environment Act and disagreements cannot be resolved through dialogue.