Apr 8, 2025
Temporary Employment in Norwegian Labor Law – Regulations, Conditions, and Practical Implications
Temporary staffing represents an alternative to permanent employment when companies need temporary labor. Unlike temporary employment, staffing is characterized by the absence of an employment relationship between the hirer and the leased employee, but rather between the lessor and the employee. This creates a tripartite relationship where the legal relationships between the parties are based on different principles:
The employee is employed by the lessor
The lessor has employer obligations towards the employee
The hirer is responsible for organizing and leading the work
The relationship between the lessor and hirer is regulated through a general contract
Norwegian law has strict limitations on temporary staffing compared to other European countries. The opportunity for staffing is mainly limited to the same situations that allow for temporary employment. This regulatory framework is subject to both public and private enforcement.
The Distinction Between Temporary Staffing and Contracting
A central distinction in Norwegian labor law is the difference between temporary staffing and contracting. This distinction is crucial because the limitations in the authorization of staffing in the Working Environment Act do not apply to contracting.
By "contracting," it is meant that a company (contractor) uses its own employees to perform an assignment for another company (client), where the employees are subject to the contractor's supervision and management. Contracting is common when companies outsource support functions like canteen operations, cleaning, and security services, or when they need specialized functions performed.
Key Factors in the Assessment
The Supreme Court has established in HR-2018-2371-A (Norwegian) that the following factors are crucial in distinguishing between staffing and contracting:
Factors indicating contracting:
The management of the work is with the contractor
The number of employees used for the assignment is irrelevant to the client
A fixed price is agreed for the assignment
The assignment is clearly defined
The contractor has independent responsibility for the outcome
The contractor uses its own materials and tools
Factors indicating staffing:
The client has the management of the work
A specific number of employees is made available to the client
An hourly rate or time-dependent price is set
The tasks are unspecified or only outlined
The client retains responsibility for the work performed
The client's materials and tools are used during the assignment
The Supreme Court has emphasized that the key factors are who has responsibility for the management and outcome of the work performed, while the other factors can capture attempts to circumvent the rules.
Two Main Forms of Staffing
The Working Environment Act distinguishes between two forms of staffing:
1. Staffing from a company that is not intended for leasing (§ 14-13)
This typically includes staffing from ordinary production companies. The aim is to allow leasing as an alternative to layoffs or dismissals due to market fluctuations or to cover a need for specific expertise with the hirer.
Conditions for lawful staffing under § 14-13:
The employee must be permanently employed by the leasing company
The leasing must occur within the fields that constitute the lessor's main occupation
The leasing activity cannot involve more than 50 percent of the permanently employed of the lessor
Even if the minimum conditions are met, a comprehensive assessment can still result in the company being considered to have leasing as its purpose, cf. § 14-12. In Rt. 2013 p. 1730 (YIT), the Supreme Court emphasized that both the employment in the leasing company and the leasing to the hirer were initiated and justified by the hirer's needs, and that the employee had no position in the leasing company to return to.
2. Staffing from a company intended for leasing (§ 14-12)
This includes staffing from staffing agencies and other businesses that are intended for leasing.
Limitations on the authorization for staffing under § 14-12:
Staffing is only permitted when the conditions for temporary employment under § 14-9, letters a to e, are met
This includes situations where the work is of a temporary nature, temporary replacements, internships, etc.
Extended staffing authorization through an agreement with employee representatives:
Companies bound by a collective agreement with a trade union with at least 10,000 members can agree on staffing regardless of the limitations in § 14-12 (1)
The agreement must be concluded in writing with employee representatives representing a majority of the employee category to which the staffing applies
The agreement must be time-limited
The Principle of Equal Treatment
A key element in the regulation of temporary staffing is the principle of equal treatment, which was introduced into Norwegian law as a result of the EU's Temporary Agency Work Directive. This principle is enshrined in the Working Environment Act § 14-12a.
Main Rules on Equal Treatment
The staffing company must ensure that leased employees receive the same wage and working conditions as they would have received with a direct hire with the hirer to perform the same work. This includes:
Length and placement of working hours
Overtime work
Duration and placement of breaks and rest periods
Night work
Holidays, holiday pay, days off, and compensation for such days
Salary and expense coverage
The concept of wages is interpreted broadly in case law. In HR-2018-1037-A (Manpower), the Supreme Court held that travel allowances were included in the wage concept, while HR-2020-2109-A (Semco) determined that company-level bonus schemes were also included.
Pension, however, falls outside the requirement for equal treatment.
Access to Common Benefits and Services
Leased employees must have the same access to common benefits and services at the hirer as the company's own employees, including canteens, company kindergartens, and fitness facilities. This applies unless there are "objective reasons" for discrimination.
Duty to Provide Information and Right to Inspect
To ensure compliance with the principle of equal treatment, several mechanisms have been introduced:
The hirer's duty to provide information to the staffing company:
The hirer must provide the lessor with all information necessary for the lessor to fulfill the requirement for equal treatment
The staffing company's duty to provide information to the employee:
The staffing company must, upon request, provide the employee with the information necessary to assess whether their own wage and working conditions fulfill the requirement for equal treatment
The staffing company's duty to document for the hirer:
The staffing company must, upon request, document to the hirer which wage and working conditions have been agreed with the leased employee
The hirer's duty to document for employee representatives:
Employee representatives at the hirer have the right to access the wages and working conditions of leased employees
Joint Responsibility for Wages, etc.
The hirer is jointly liable with the staffing company for the payment of wages, holiday pay, and any other compensation according to the principle of equal treatment. This means that:
The joint responsibility arises as soon as the employee’s claim is defaulted
Claims must be submitted within three months after the due date
The hirer must pay the claim within three weeks after it is presented
The joint responsibility does not apply in case of bankruptcy of the staffing company
Effects of Unlawful Staffing
The consequences of unlawful staffing vary depending on which staffing provision is violated:
In case of violation of § 14-12 (staffing from staffing companies)
The employee can claim permanent employment with the hirer
The employee can claim compensation
Exceptionally, the court may refrain from granting a ruling on permanent employment if it would be "clearly unreasonable" after a balancing assessment of the parties' interests
In case of violation of § 14-13 (staffing from production companies)
No direct right to permanent employment or compensation
If the conditions for staffing under § 14-13 are not met, the staffing is considered to be covered by § 14-12
Then the legality is assessed under § 14-12, and in the case of illegality, the legal consequences under § 14-14 apply
An employee who has been leased for more than three years (with a temporary position) or four years (with work of a temporary nature) has the right to permanent employment with the hirer. This does not apply to staffing based on an agreement with employee representatives under § 14-12 (2).
Practical Advice for Companies
For Hirers
Carefully assess the distinction between staffing and contracting Document the basis for the assessment, especially who has management and responsibility for the outcome
Ensure that the conditions for staffing are met In the case of staffing from production companies, check that the leasing activity does not exceed 50% of the employees with the lessor
Conduct necessary discussions with employee representatives In the case of staffing from production companies (§ 14-13), the hirer must conduct discussions with employee representatives before deciding on staffing
For long-term staffing needs Consider permanent employment to avoid the employee achieving the right to permanent employment after three/four years
Implement the principle of equal treatment Provide the staffing company with sufficient information about the wages and working conditions in the company
Be aware of joint responsibility Investigate the seriousness of the staffing company and establish routines to verify that the leasing company fulfills its obligations
For Lessors
Clarify the nature of the business Document whether the company is intended for leasing (§ 14-12) or not (§ 14-13)
In the case of leasing from a production company Ensure that the leasing occurs within the company’s main occupation and does not exceed 50% of the permanently employed
Ensure compliance with the principle of equal treatment Obtain sufficient information from the hirer on applicable wages and working conditions
Document wages and working conditions Be prepared to document these to the hirer, employee, and employee representatives
Summary
Temporary staffing is subject to strict regulations in Norwegian law, aimed at protecting the main rule of permanent employment and bilateral relationships in the workforce. The regulations distinguish between staffing from production companies and staffing agencies, with different conditions and requirements.
For staffing from agencies, the principle of equal treatment applies, which ensures that leased employees receive the same wages and working conditions as they would have with direct employment at the hirer. This principle is supported by information obligations, inspection rights, and joint responsibility.
The consequences of unlawful staffing can be significant, with the possibility of permanent employment with the hirer and liability for damages. Companies using staffing should therefore be well-acquainted with the regulations and establish routines to ensure compliance.
