Digital platform workers and freelancers can gain employee status with the new directive

Atypical working conditions is a topic that receives a lot of attention in EU law. How can it be ensured that this group gets the necessary rights, and who is actually an atypical 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 (Norwegian only) for implementation in Norwegian law.

Several new rights

The directive covers 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 a trial period longer than 6 months, in the case of shorter contracts, the trial period must be in a reasonable proportion to the contract period
• Opportunity to have parallel working relationships
• Several measures against abuse of on-call contracts

The directive 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 shall be included. In the case of working relationships with so-called unpredictable work patterns, there is a requirement for the employer to provide information on:

• That the work pattern will vary, the number of guaranteed hours and the payment beyond this
• Reference hours and days for when the employee can expect to be required to work
• A notification deadline for how late the employer can make contact for assignments

In addition to the Directive on transparent and predictable working conditions, a new directive for digital platform workers is also on its way in the EU. This, if adopted, will give rights to both independent contractors and employees among digital platform workers as a special atypical form of association.

Who are the atypical workers?

Temporary and part-time workers are already covered by EU law as employees. The question now is whether digital platform workers, on-call temporary workers and freelancers can also get worker rights - as atypical workers.

In EU law, the following criteria or characteristics can speak for an atypical employment relationship that can grant employee rights:

• Varying work patterns
• Can have several employers
• A conditional right to refuse work assignments
• Independence in work within certain time frames
• Can be indirectly controlled by the employer through, for example, clients' requests
• The employer has the right to exercise sanctions, but must not make use of it
• The employer by and large decides the organization of the work
• Is an integral part of the employer's business
• Cannot 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.

Need for a revision of the Norwegian moment list

Who is 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 get 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 a seven-point list developed in preparatory work and practice from the Supreme Court.

The traditional Norwegian approach is not necessarily in accordance with the criteria developed in EU law. In the worst-case scenario, the moments 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.