What is required to hold a particularly independent or leading position?
The Working Environment Act contains working time rules that protect employees, but makes exceptions for managerial or particularly independent positions. These people largely control their own working day, and are not entitled to overtime pay, for example. The positions must meet strict requirements. Here are the criteria that must be in place.
The main rule: The law protects all employees
The Working Environment Act provides all employees with protection through the provisions on working hours. The rules are designed to ensure a proper work-life balance, and are intended to protect you from unnecessary health and social strain.
Among other things, the working hours rules set limits on how much you can work, stipulate how much rest you must have each day and week, and give you the right to overtime pay.
The Act's exceptions for particularly independent and managerial positions
However, there are exceptions for employees in managerial or particularly independent positions, see Section 10-12 (1) and (2) of the Working Environment Act (lovdata.no). The reason is that some positions require such a high degree of flexibility and independence that the usual working hours regulations do not fit.
But the law is already flexible. Employers can usually solve the need for adaptation within the framework of the law. Therefore, they must use the exception with caution and only when it is actually necessary.
What the exemption means for you
If you are exempt from the working hours rules, you no longer have the protection provided by the safety rules. Then there is no limit to how much you can work, no guarantee of daily and weekly rest, and no special rules protect you from night work. You also lose the right to overtime pay. Exceptions to these rules must therefore be used restrictively.
However, even if your position is exempt, your working hours must still be justifiable. The employer is still responsible for ensuring that your work does not pose a health risk, even in positions with a high degree of self-determination.
The employer must assess your actual working day
To determine whether your position can be legally exempted, your employer must consider what you actually do at work. They cannot simply refer to the job title or what is agreed in the employment contract. The law takes precedence over the agreement. It is the actual working day that is crucial.
Union representatives should pay particular attention if the employer has exempted job groups – for example, everyone with the same title – without individual assessment. Each assessment must be based on the actual tasks and responsibilities of the individual employee.
Requirements for particularly independent positions
In order for your position to be considered particularly independent, you must have considerable independence in how and when you organise and carry out your work tasks. It is not enough that you have flexible hours or can work from home - you must have real freedom to manage your working day.
You must be able to assess and determine the need for your own work input, and to a large extent decide for yourself when you will work. You must also be able to influence how much you work, either directly or through the opportunity to delegate.
It is not enough that your employer does not control your working hours - you must have real independence in how and when you carry out the work.
If you work on a project, your employer cannot, as a general rule, exempt you, because your working hours are normally governed by the project's progress and not by your own assessments and priorities.
Your position must also be superior and responsible, high up in the hierarchy with the possibility of committing the company legally or financially.
Check if you have a particularly independent position
- Do you have the opportunity to prioritise your work tasks and decide when and how the work should be carried out?
- Can you influence how much you work or delegate tasks?
- Do you have influence over deadlines and external frameworks for the tasks?
- Do you control your own working hours, without your manager controlling when or how much you work?
- Do you have an overall role with responsibilities that may have financial or legal consequences for the business?
- Does your salary reflect the increased responsibility and independence that the position entails?
The Labour Inspection Authority is clear that all these points must be met in order for the position to be considered particularly independent. Read more about what the Norwegian Labour Inspection Authority emphasizes (arbeidstilsynet.no)
Requirements for senior positions
If you have a senior position that can be exempted, you must have a senior position with clear leadership functions and decision-making authority. The exception applies to high-level managers who largely decide their own working hours and work input.
You must be high up in the organizational hierarchy and have clear management responsibilities, such as personnel responsibility, budget responsibility and performance responsibility. You must have the authority to make decisions on behalf of the enterprise and not be subject to permanent control of working hours.
If you have to follow the working hours of those you manage, you normally do not have a leading position in the sense of the law.
Check if you have a senior position
- Do you largely control your own working hours?
- Do you assess and decide for yourself the need for your own work effort?
- Are you not subject to permanent control of working hours?
- Are you high up in the organizational hierarchy?
- Do you have clear management responsibilities (personnel responsibility, budget responsibility and performance responsibility)?
- Do you have the authority to make decisions on behalf of the business?
These rules do not apply to particularly independent and senior positions
- Limits on how much you can work
- Frameworks for daily and weekly rest
- Right to breaks
- Protection against night and Sunday work
- Right to overtime pay
But: Continued requirement for proper working hours
What can you do if you suspect illegal exemption?
If you suspect that your employer has illegally exempted you from the working hours chapter, you should ask for a written explanation for the assessment. Several of NITO's collective agreements give you and your employee representatives the right to demand such written justification when the employer makes exceptions to the working hours rules.
Union representatives should pay particular attention if the employer has exempted recent graduates or entire job groups without individual assessment. In such cases, it may be appropriate to contact the trade union for legal assistance and assessment of the case.
NITO is here when it matters
Many people do not know where to start when uncertainty arises in working life. As a trade union, we are here to give you security, support and concrete advice – when you need it most.
