Supreme Court narrows independent-position exemption from working-time rules

Høyesterett has narrowed the exemption for employees in a «særlig uavhengig stilling» under arbeidsmiljøloven § 10-12 second paragraphDomstol. In HR-2026-2227-ADomstol, decided 14 October 2026Domstol with dommer Borgar Høgetveit Berg delivering the leading opinion, a unanimous five-judge panel set aside Gulating lagmannsrett's judgmentDomstol of 20 October 2025 and held that a project manager in a construction group was not in a particularly independent positionDomstol — so the chapter 10 working-time rules, including overtime pay, applied to himDomstol.

The claimant A worked from April 2020 as project manager in contractor X AS on a 40-hour week with ordinary overtime deemed included in pay. After the 2021 bankruptcy he sued B personally — board chair, managing director and principal shareholder — under aksjeloven § 17-1Domstol, after Nav Lønsgaranti rejected his overtime claimDomstol. Both lower courts freed B, finding the position exemptDomstol; NITO intervened for A and SMB Norge for B.

On the law, the judgment holds the exemption is narrowDomstol. The wording requires a «særlig» independent position — not every independent oneDomstol — and the preparatory works (Ot.prp. nr. 49 (2004–2005) p. 181; Innst. O. nr. 18 (2005–2006)) demand a clear and obvious independence in how and when tasks are organised and performedDomstol: the employee sets priorities, decides what to do and what to delegate, and when and how to do it. Flexible hours alone do not sufficeDomstol. Crucially, the assessment must take in all framework conditions, including external ones the employer does not controlDomstol: a position that is not independent in light of client deadlines and project milestones cannot become independent under the Act merely because the employer sets no limits on working timeDomstol. The judgment endorses NOU 2016:1 p. 199 to the same effect. Project work as such does not place an employee inside or outside the exemptionDomstol; the assessment is always concreteDomstol.

The exemption must also be read in conformity with the Working Time Directive 2003/88/ECDomstol, implemented in chapter 10: § 10-12 second paragraph cannot open exceptions wider than the Directive's article 17(1) permitsDomstol. That provision covers workers whose working time is not measured or predetermined or can be set by the workers themselvesDomstol, and the Court, citing CJEU case C-175/16 Hälvä, stresses the focus is freedom to determine the duration of working time, not merely when during the day to workDomstol.

Applied to the facts, A controlled how project tasks were doneDomstol and led up to five turnkey projects worth up to near 100 million kroner, but had limited say over workload and timingDomstol: he could not in reality refuse assignmentsDomstol, had to request time off in lieuDomstol — indicating he did not freely control his hoursDomstol — and worked under external constraints that genuinely limited his controlDomstol. The Court of Appeal's focus on his managerial tasks rather than his control over his own working time was therefore wrongDomstol. The appeal succeededDomstol; B must pay A's Supreme Court costs of 534 228 kronerDomstol (399 000 for 114 counsel hours at 3 500 plus VAT of 99 750 and court fee 35 478) within two weeks of serviceDomstol.

For advisers, the practical test is now sharper: exemption requires great freedom to determine the volume of work and when it is doneDomstol, assessed against every constraintDomstol — and in doubt, the working-time rules apply. Even exempt employees keep the § 10-2 basic protectionsArbeidstilsynet and the right to justifiable working hoursArbeidstilsynet.

Legal basis: arbeidsmiljøloven § 10-12 andre ledd, cf. §§ 10-6 (overtime pay supplement of at least 40 per cent), 10-2 and 1-9, read in conformity with Directive 2003/88/EC article 17(1), cf. articles 2(1) and 6Domstol.