More than one in five employed Norwegians are exempt from the working time provisions of the Norwegian Working Environment Act – without any entitlement to overtime pay, regardless of how many hours they actually work.

Many of these exemptions are based on the assumption that flexible working hours, significant responsibilities or a project management role are sufficient for an employee to qualify as holding a “particularly independent position” under section 10-12, second paragraph, of the Working Environment Act.

Misclassification can prove costly. It may give rise to claims for back payment of overtime and lengthy disputes, and the issue will often affect not just one employee, but entire categories of positions within an organisation.

In a recent judgment, HR-2026-2227-A, the Norwegian Supreme Court makes clear that the threshold for applying the exemption is higher than many employers have assumed.

Flexible working hours are not enough

In its judgment of 14 October 2026, the Supreme Court held that the exemption must be interpreted narrowly.

The fact that an employee can organise their working day flexibly, holds a position of responsibility or works as a project manager is not sufficient. The decisive question is whether the employee, in practice, enjoys a clear and genuine degree of independence – in particular, genuine freedom to determine both the amount of work to be performed and when that work is carried out.

The judgment provides an important correction to a common misconception: independence in how tasks are performed is not the same as independence in determining how much and when one is required to work. The assessment must be comprehensive and based on the actual circumstances of the position – not merely the employee’s title, salary or the wording of the employment contract.

Read the judgment here: https://www.domstol.no/globalassets/upload/hret/avgjorelser/2026/oktober/hr-2026-2227-a.pdf

Why the position in question wasn’t “particularly independent”

The employee in the case had considerable freedom to organise his tasks and determine how they should be carried out. Nevertheless, he had limited control over his own workload and was not free to decide when the work should be performed. The parameters of the projects restricted his genuine autonomy.

External constraints also matters

An important point is that the assessment does not stop with the employer’s instructions. Deadlines, client requirements, milestones and project schedules may, in practice, restrict an employee’s control over their working hours, even where the employer does not set fixed attendance hours or monitor when the employee works.

External constraints must therefore also form part of the assessment. A position does not become independent simply because the employer refrains from imposing limits on working hours.

This is particularly relevant for project-based businesses. The Supreme Court emphasises that project-based work does not in itself determine whether the exemption applies. A project manager may have substantial responsibility for planning, finances, subcontractors and project delivery, while still being subject to requirements that, in practice, determine both the amount of work and when it must be performed.

What should employers do now?

Employers should review both their employment contracts and the actual working arrangements of key employees. Who determines the workload, priorities and working hours? To what extent do deadlines, client requirements and project schedules restrict the employee’s freedom to organise their work? Flexible working hours alone are not sufficient if the employee lacks genuine control over the scope and timing of the work.

As noted above, this is not merely a theoretical risk. Employers should therefore correct arrangements that do not reflect the employee’s actual degree of independence before a dispute forces the issue to be resolved on less favourable terms.

We are happy to assist with specific assessments of position classifications, employment contracts and working time arrangements. Please contact us to discuss whether your organisation’s current practices meet the applicable requirements.