Advice and Tips
Leading - or particularly independent positions
Many employers use the concepts of "leading” or “particularly independent” regarding specific jobs or employees. In the following article we’ll explain what the formal requirements are for this position and what they mean for your rights.
Tekna’s attorneys review a great number of employment contracts over the course of a year. For example, recent graduate Line has sent her job offer to Tekna’s legal department. The contract contains the following information:
«Annual salary: NOK 500,000. The position is regarded as particularly independent and is therefore not eligible for overtime. Working beyond regular working hours must be expected.»
What are the consequences for Line – and is it correct that she will be regarded as having a particularly independent position? Which factors have to be present to be seen as “particularly independent”?
First off, while the rules on working time apply as a rule to all employees, an exception from working time rules has been made for these two kind of positions in the Working Environment Act:
Leading - or particularly independent position
The Norwegian Labour Inspection Authority points out that "leading position" means senior positions with clear managerial functions. Examples of these positions are of course the top leaders, but also departmental managers, office managers and other employees who have a high level of responsibility; they make a high number of independent decisions on behalf of the organization. They may to a great extent both determine their own need for the amount of time they work and decide their own work schedule.
Additionally, the Norwegian Labour Inspection Authority points out that "particularly independent position" means employees who don’t have direct management functions but who still have senior-level, responsible positions. This involves employees who prioritize their own work tasks, deciding what they are going to do, what will be delegated to others as well as when and how work is to be completed.
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Even if an employee is exempt from working time regulations, their working hours must be arranged so that they themselves are not subjected to excessive physical or mental strain and their employer has the possibility of maintaining their safety. Employees who are exempt from working time regulations have the same rights as other employees to have the number of their working hours reduced and be exempted from working at night. In the following section we’ll focus on particularly independent positions.
What’s needed to be “particularly independent”?
There’s a legal prerequisite that regulations with respect to particularly independent positions are to be strictly followed. This means that the access to giving an employee a particularly independent position is narrow. The introductory section to this law explains that regulations are meant to include «employees who do not have a leading position […] but who still have senior-level, responsible positions». In addition, there is an emphasis on stating that a particularly independent position must involve a clear and obvious «independence» with respect to how and when work tasks are to be organized and completed.
Having a project manager position, a key position or a higher salary than co-workers are not reasons enough to say that an employee has a particularly independent position. The position’s title is not a decisive factor here; neither is the fact that an employee manages their own working hours and/or have flexible working hours reason enough for allowing them to be placed in the particularly independent category. On the contrary, it is the employee’s actual work situation that decides this matter.
What are the consequences of having a particularly independent position?
When you have a particularly independent position, you’re exempted from the working hours provisions in the Working Environment Act. This means that in reality, they do not have working hours in the legal sense, and they are not subject to the limits on how much one can work in a week or a year. However, the most practical aspect for the individual is probably that they are not entitled to overtime pay, and therefore, it is often common for employers to compensate employees in particularly independent positions at a higher rate.
But these positions often means having a higher workload, and you can risk earning an hourly wage that’s quite low if your base salary doesn’t equal your workload. If you’re offered a particularly independent position, it’s important to negotiate a good base salary that covers your workload beyond normal working hours. Finally, it’s you as an employee who assumes the risk of having your workload become greater than you thought it would be when you started the job.
If you’ve been hired in a particularly independent position on an incorrect basis, the work time regulations in the Working Environment Act may be applied in your case. This means that you as an employee can legally demand overtime pay for any work you’ve done beyond your regular working hours. You must prove the scope of your overtime work, but your company might have to give you back pay for this work, which is retroactive for three years.
If you suspect that you do not actually hold such a particularly independent position as claimed by the employer, it is important that you maintain your own record of working hours if the company does not facilitate time tracking. However, as previously mentioned, the employer still has a responsibility to ensure that you do not work so much that it adversely affects your health.
Do you actually have a “particularly independent position”?
Tekna’s experience shows that the exemption provision is used more often than was originally intended. It’s not necessarily correct that you have a particularly independent position just because your employer has written in your employment contract that you’re not entitled to receive any overtime allowance.
Tekna is very concerned that as many as 34% of working recent graduates reveal that they’re not entitled to overtime pay. Tekna’s opinion is that in principle recent graduates should never be defined as employees with particularly independent positions.
If you’re unsure of whether you’re in a particularly independent position or not, we recommend that you contact Tekna’s legal department to receive an evaluation of your work situation.