Ole Kristian Olsby Mari Vindedal November 2 2022 Digital platform workers and freelancers in Norway may gain employee status under new EU directive Littler | Employment & Immigration - Norway Ole Kristian Olsby, Mari Vindedal Employment & Immigration Fixed-term and part-time contractsUnpredictable work patternsDigital platform workersWhat constitutes an employee?The EU Directive on Transparent and Predictable Working Conditions provides that many digital platform workers, several freelancers and the vast majority of on-call temporary workers can obtain rights as employees. The directive was recently put out for consultation for implementation in Norwegian law.Fixed-term and part-time contractsCurrently, fixed-term and part-time contracts are covered by the Norwegian Employment Act and are mentioned specifically in the legal text. Employees under such contracts already have several rights by law in Norway – for example, they are protected against unlawful dismissal and may have prioritised appointments.The directive, when implemented, will cover all employees but seeks in particular to provide more predictability and security for employees with a looser connection to working life.Among other things, these employees will receive:a right to request a transition to more permanent work;a ban on trial periods longer than six months. For shorter contracts, the trial period must be in a reasonable proportion to the contract period;the opportunity to have parallel working relationships; andprotection against abuse of on-demand contracts. Currently, on-demand contracts with no guaranteed working time or pay are not allowed under Norwegian law, but on-demand contracts are permissible in fixed time-framework agreements.Unpredictable work patternsThere are currently no specific requirements with regard to unpredictable work patterns in the Norwegian Employment Act, although there are some requirements relating to working arrangements in general (eg, information about when the work will start, how long the work will last and information regarding salaries).The directive will introduce new requirements relating to unpredictable work patterns. It stipulates that contracts down to an average of three working hours a week are to be covered. In addition, contracts without any guaranteed hours or wages will be included. In the case of working relationships with unpredictable work patterns, the employer must:inform the employee that their work pattern will vary. The employer must indicate the number of guaranteed hours and the payment beyond this;provide reference hours and days for when the employee can expect to be required to work; andprovide a notification deadline as to how late the employer can make contact in order to assign work to the employee.Digital platform workersIn addition to the EU Directive on Transparent and Predictable Working Conditions, a new directive for digital platform workers is also on its way in the European Union. This, if adopted, will give rights to both independent contractors and employees among digital platform workers as a special atypical form of association.Currently, digital platform workers are not regulated in Norway, apart from under regulations relating to health and safety and discrimination. However, freelancers may be entitled to be paid sick leave under the National Insurance Act. If independent workers, digital workers or other types of atypical or on-demand workers are proven to be employees, they will be covered as employees under the Employment Act.What constitutes an employee?Temporary and part-time workers are already covered by EU law as employees. In Norway, they are covered by more specific provisions as specific groups of employees. The question now is whether digital platform workers, on-call temporary workers and freelancers can also get worker rights as atypical workers.Under EU law, the following criteria or characteristics may represent an atypical employment relationship that can grant employee rights:varying work patterns;several employers;a conditional right to refuse work assignments;independence in work within certain time frames;indirect control by the employer through, for example, clients' requests;that the employer has the right to exercise sanctions, but must not make use of it;that the employer by and large decides the organisation of the work;that the employee is an integral part of the employer's business; andthat the employee does not share the financial risk.Independent contractors who act at their own risk and who are not an integral part of the client's business are excluded.The question of what constitutes an employee according to EU law will have significance for the Norwegian concept of "employee" when the directive is implemented. The EU legal term will set a lower limit for who must be covered by the implemented directive rights, and at the same time an upper limit for who cannot benefit from the rights.In Norwegian law, the boundary between an employee (with employee rights) and an independent contractor (without such rights) has traditionally been decided after an overall assessment based on the following factors, developed in preparatory work and practice from the Supreme Court:a personal obligation to work;subordination;the fact that the employer decides where the employee should work and provides the tools for the employee to do so;the fact that the employer bears the risk;remuneration;a stable relationship; andthe fact that the employee only works for one employer.The traditional Norwegian approach is not necessarily in accordance with the criteria developed in EU law. In the worst case scenario, this will constitute possible stumbling blocks when the directive is to be put into practice, so that not all atypical workers get the rights they are entitled to under the directive.For further information on this topic please contact Ole Kristian Olsby or Mari Vindedal at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.