Arbeids(retts)lunsj episode 38 - Employer's Guide to 2025 (AI Voices)

In this episode of Arbeids(retts)lunsj, Lill Egeland and Nicolay Skarning take us on an exciting journey into 2025 through the lens of employment law. They discuss how the election year could impact labor legislation, including potential changes to the rules on hiring temporary workers and fixed-term contracts. Additionally, they delve into legal processes and proposed new laws that could shape the workplace.

Highlights:

• How upcoming regulatory changes could affect HR and employers.
• Discussion on the proposed Whistleblower Directive and its implications.
• Increasing documentation requirements in termination and personnel cases.
• The development of platform work and the definition of employees in light of new EU directives.
• A renewed focus on the psychosocial work environment and how businesses can prevent conflicts and sick leave.

As always, this episode is well-suited for taking along on a walk.

Disclaimer: This episode is machine translated from the transcript of the Norwegian episode of Arbeids(retts)lunsj. The voices are generated using AI-tools.

Som alltid er episoden godt egnet for å ta seg med på tur.

Transcript

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[00:00:04] Monica: Hi and welcome to the first podcast of 2025, Work(Law) Lunch. My name is Lill Egeland and I work at the law firm Simonsen Vogt Wiig. We're kicking off the year with Nicolay Skarning back in the studio with me, welcome.

[00:00:23] Henry: Thank you very much. It's nice to be here.

[00:00:25] Monica: I thought that getting a glimpse into the crystal ball for those working with labor law and HR must be very useful.

And we can predict. We can see now what might happen this year. At least we can have some semi-informed thoughts about it, and that's the topic for today's episode.

[00:00:44] Henry: We have the crystal ball in front of us now.

[00:00:48] Monica: That's what we have.

[00:00:49] Henry: And we have a lot of actual things we're building on, so I think we should be able to provide quite good guidance. There's a lot of exciting stuff happening in 2025.

[00:00:56] Monica: And as always, you who are listening should get out for a walk and listen while you walk, because you'll absorb more that way, and not to mention, you'll get some fresh air and maybe a bit of light too. It's actually getting lighter now, so just get out there.

[00:01:09] Henry: Fortunately.

[00:01:11] Monica: 2025, yes.

The first thing I think of with 2025 is that it might be an election year. One can imagine that, of course, it will be in the fall, and we might not see it immediately, but the first thing I think of is, if we get a new government, a new majority in the Parliament, then there will probably be some changes to the rules, maybe about temporary employment, but at least to the rules about hiring.

[00:01:36] Henry: Yes, that's exactly right as you say. The conservative parties have announced that they will change the rules back to how they were in 2019. This means that there will again be the possibility to hire from staffing agencies for temporary needs. And based on previous government changes, the new government is usually formed by October, which means that if the conservatives prepare quickly, a proposal could actually be presented to the Parliament before Christmas.

[00:02:10] Monica: Yes, so 2025 might be a year where things are looking up for...

both staffing agencies, but also clients and companies that need to hire and use more flexible labor.

[00:02:26] Henry: Yes, I think you're absolutely right, and we also have this case ongoing in the courts regarding those restrictions, and it's also a case that will come up in the district court this spring.

[00:02:38] Monica: So maybe we'll see a change before there is a potential change in government due to a court case that is currently in the courts and that you are handling, Nicolay?

[00:02:47] Henry: Yes, we are currently representing 12 staffing agencies, and we are optimistic about the case because we represent both a Polish agency and a Danish-owned company. So, we anticipate that this could be a quite interesting legal process in the Oslo District Court.

[00:03:07] Monica: Yes, when we talk about hiring, we already know that a change has been proposed in an area that has caused quite a stir in 2024. Namely, the "AS-meg-selv" and sole proprietorships. It has been a hard and tough regulatory change for that group, especially in the IT industry. Because, as we know, in 2024 changes were introduced that required both registration and approval as staffing agencies. And if you were a client, you practically had to show that you needed work for a project and through the use of specialized consulting assistance.

It's a challenge in itself, but for the self-employed and sole proprietorships, most large clients, just to be on the safe side, started saying they wouldn't do any business with you unless you were registered as a staffing agency. This caused trouble because, at the same time, the labor inspection authority tightened its approval practices, stating that if you only have one employee, you won't be approved as a staffing agency, and if you're a sole proprietorship, you won't get any approval as a staffing agency.

There are now proposed changes.

[00:04:34] Henry: Yes, that's correct. And along the same lines, last year or actually the year before, this change was also implemented by expanding the concept of an employee. This made large public and private entities that purchased these services worried that these consultants might suddenly be considered employees and could demand employee status.

So those changes have, it really hasn't been the government's intention to create difficulties for the industry, and therefore a joint committee and an investigation have now led to an exemption from the approval scheme, particularly for these IT consultants that you mentioned.

So, we need to see how extensive that exception will be. But we expect, Lill, that it might come around February-March or something like that?

[00:05:26] Monica: Yes, I would think so. There is currently a hearing, and it is proposed that those in this group should not need approval as staffing agencies, which seems fairly uncontroversial. And as you mentioned, a committee is being established to look into the practical and principled aspects of this.

Because clearly, this is actually quite a difficult topic, and it touches on something very fundamental in labor law, as you mentioned, namely what constitutes an employee, and whether we should have an intermediate category between self-employed individuals and employees. These are some of the issues that will be closely examined by such a committee.

[00:06:08] Henry: Yes, and you could say there was just a desire to clarify the concept of an employee, and that was done in the law, section 1-8 of the Working Environment Act. But then some issues arose because of that, namely, as you mentioned, people who are "AS-meg-selv," their own company or sole proprietorship, where they could suddenly risk being defined as employees against their own will. And then we also have the constitutional protection of both employment relationships and business.

So the constitution also stipulates that if you want to be self-employed and not an employee, you should have the right to do so. And this is something that the committee must consider. We might see some quite interesting changes in this area by 2025. We've assisted a number of consultants who have faced significant difficulties in recent months because they haven't been allowed to offer their services.

[00:06:56] Monica: Yes, it will be very interesting. If we switch to another topic, I think I've noticed a trend in the courts regarding both dismissal cases related to the employee's own conduct and downsizing cases. There's a trend where the courts are increasingly demanding more documentation on the assessments made by the employer.

And I think that this trend will likely continue into 2025. The requirement that if you want to prove anything, it's not enough to just stand in court and explain what happened; you need to refer to something documented in writing, contemporaneous evidence. I don't know, have you given any thought to this trend we're seeing in the courts?

[00:07:57] Henry: I think that's a very accurate and important clarification that people listening, who work with and are responsible for these types of cases, should take note of. The requirement for written documentation is increasing, which means that text messages, emails, minutes, and so on become very important pieces of evidence.

And we know that the Supreme Court has previously stated that evidence closely related to the decision will be particularly emphasized by the court. This means that if you have difficult personnel conversations, downsizing plans, and so on, you should document these.

Quite early on, these are the kinds of things we also work a lot with and assist employers with, precisely to document their thoughts so that they can show this later, and it can have quite a significant impact in court cases. So, I think that's a very good clarification you're giving there.

[00:08:56] Monica: I thought of it because I read a ruling from the labor court, which is a court that handles disputes related to collective agreements. In a recent case, a layoff process had been carried out, and the documentation, the written part, was somewhat lacking. However, there were clear explanations and so on. But the court, in this labor court case, stated that it was not favorable to have so little documentation, and there was some criticism regarding the lack of documentation from employers. That made me think that this is a pattern we are seeing. As lawyers, we always emphasize the importance of documentation, but as I said, I see that it is becoming more stringent, and one should be aware of that.

[00:09:50] Henry: That is my experience as well. As you know, I serve as a deputy judge in the labor court for Spekter, the employer association Spekter, and this is something I have also noted from the labor court, namely that there are significant demands for documentation. This has increasingly developed over time, and it also impacts regular cases, such as job protection and downsizing cases.

[00:10:18] Monica: I think so.

[00:10:20] Henry: We work a lot with that, and it has been a frequent topic in our department as well. We know how to handle it properly; it's not like you have to write long dissertations. It's about doing it in a simple and straightforward way. I think we have pretty good templates and setups for it now, which make it easy to meet the requirements.

[00:10:42] Monica: I think so too, and I also think that to avoid getting stuck in a rabbit hole here, but I get very eager when we talk about documentation, because it's clear that what's difficult in personnel matters when you have to document that things aren't as they should be, is that you get that tricky balance as soon as you start writing things down, the atmosphere doesn't exactly become super great, and the employee doesn't exactly believe that you have their best interests in mind when you start documenting.

But I believe it doesn't have to be that way, because I think it's entirely possible to find ways to document while genuinely believing that it can work out, and where you can genuinely build that security and trust with the employee, so that it can actually go well too, because that's always our goal. For it to go well for the person.

But now let's pull ourselves out of that documentation rabbit hole, because we could talk a lot about that—it's the core of legal practice. Let's pull ourselves up and look into the crystal ball for 2025. Another thing I think might happen in 2025 is the possible arrival of the new whistleblowing directive, which has been in the pipeline for quite some time.

It's under consideration at the ministry, whether the whistleblowing directive should be implemented or not. We have a report from a law firm that has suggested how the directive should be implemented in Norwegian law. I believe that 2025 will be the year when the whistleblowing directive is actually implemented.

And if that happens, we will have two parallel laws, or we don't know yet, we might get one law, but most likely there will be two laws. We have one law that addresses whistleblowing in the work environment, specifically in the Working Environment Act. This relates to the employee's right to blow the whistle. As of today, it is part of the Working Environment Act.

And then, if the proposal on the table goes through, we will have a separate law regulating whistleblowing within the scope of the whistleblowing directive, which is broadly speaking, under EU legislation. So employers will need to balance and ensure compliance with both sets of regulations. They must ensure they have a whistleblowing channel that meets the new law's requirements, ensure they have procedures in place to handle these cases, and so on.

So, the whistleblowing directive might be a topic that could create some work in the dreams of employers going forward.

[00:13:28] Henry: Yes, you're absolutely right, and I completely agree with you. I think this might come up around 2025 because it has been in the pipeline for quite some time. Fortunately, we have had some inquiries about it, and we have systems in place, which we can call a kind of health check for this, a whistleblowing health check where we set up these things and help businesses navigate through it, both in terms of what routines they should have and how they should potentially address this directive.

[00:13:54] Monica: Absolutely. I've also looked into the proposed laws and regulations in addition to what we've discussed. One thing I've noticed is that it's being proposed that the general manager could now face imprisonment or fines, which has been the case before as well. For instance, in the Veireno case, the general manager received a prison sentence for violations of working hours regulations.

But now there are provisions proposing to strengthen the toolbox of the labor inspection authority. Among other things, to impose violation fees personally on what is effectively the general manager. That's serious stuff. It won't be a personal fine.

[00:14:42] Henry: No, it just shows a bit of the risk associated with that type of position and that the risk would then increase.

[00:14:51] Monica: Yes.

[00:14:52] Henry: When the risk for an employee increases, it can be reflected in insurance policies that might not cover it, for example, fines are not automatically covered, but it can be reflected in salary conditions. So, it's an interesting development, but it's also because there's more focus on workplace crime and such issues.

[00:15:12] Monica: Yes, that's correct.

[00:15:13] Henry: Wage theft, right, things like that. So this is being followed up, and it will be interesting to see how it will be received in the courts.

[00:15:21] Monica: And you're right, this is part of the package being put together to tackle workplace crime. So when we talk about fines for the general manager, it typically won't be the serious, proper employers who might slip up on something. It will be those with systematic errors and deficiencies, operating right on the edge of the law.

This is the scope of this fine provision.

[00:15:47] Henry: It is not difficult to comply with this at all when you are a serious employer like those we work with. Because we conduct health checks on our clients. And this also includes working hours, salary payments, and everything. These are systems that we always do a quick check on to ensure they are correct, so there are no issues with the labor inspection authority.

[00:16:09] Monica: So I have also seen that a change is being proposed in the provision regarding temporary employment related to so-called practical work, because right now, when you want to hire someone temporarily, it is an exception to the main rule. If you are going to hire someone, the main rule is permanent employment, and all political parties agree on that.

What people disagree on is how broad the access to temporary employment should be. One of the reasons for temporary employment is so-called practical work. That's what the law states. And then there's the question of what practical work actually is. We have some Supreme Court decisions and a fair amount of theory describing it, but now there's a proposal to change the wording to say that practical work is practical work during the course of an educational program.

This is what they propose to clarify in the law. I haven't delved deeply into the preparatory work, but when I read the wording, it seems to me like a so-called codification, meaning that they are not tightening the rules but rather clarifying what is already the case. In my mind, the provision for temporary employees in practice work is precisely for use in more formalized educational programs.

There have at least been resident doctors in the healthcare sector, for example, who have been included in this. So to me, it doesn't seem like a big change, but it's good to have it clarified.

[00:17:42] Henry: Yes, I completely agree with you, so it's really just a codification. Sometimes it might seem like a tightening of the rules, so those who have many interns should take the time to follow this law change to avoid ending up with people they think are interns but are actually permanent employees.

[00:18:03] Monica: That's correct, and that's the consequence of not meeting the requirements for temporary employment, ending up with a permanent employee you didn't expect. It's also not uncommon; in fact, it's very common to hire temporarily in practice, like a trainee type. There's actually a significant misunderstanding among many that you can hire trainees under this practice provision, but you can't.

It doesn't work, neither before nor after this legislative change. And then I've seen that there's a proposal to raise the age limit for municipalities and also for companies. I've written this down for myself, and I'll just have to check later whether it's actually general. Yes, listeners will have to excuse us for not being able to say 100% whether this is only in the municipal sector, but at least there's a proposal to increase it to 72 years. Currently, you can say you have to retire at 70 if there are good pension arrangements and so on, and this stems from the pension agreement in February 2024, where it was stated that the age limit in the state should be raised.

This is just the first step on the way. We are all getting older, and the welfare state can't handle everyone working for a short time. So, we will see this increase in age limits going forward, and this is the beginning.

[00:19:29] Henry: Yes, that's what the politicians are saying—that people should be able to work longer in their careers, and they want to extend job protection in terms of age.

And there's certainly a lot of good things to say about that, because as you mentioned, we're getting older, and we need the workforce in Norway as well. So the downside for businesses is, of course, that job protection will be, shall we say, extended. And that means, of course, that... a few more cases will probably arise where employees are not performing in their roles, so I think we'll see a few more of those cases.

[00:20:06] Monica: Yes, that might be the case. And I think that businesses have long needed and still need good routines to ensure they utilize all types of employees. And even though we're getting older, Nikolay, we don't really feel it.

[00:20:24] Henry: I still feel like I'm only 30 years old.

[00:20:26] Monica: You're only 30 years old.

I still think there's this notion that once you hit 65, things slow down, and biologically that might be true, but it doesn't mean you should dwell on it because you need to be able to facilitate a different type of work so that you can indeed keep going until you're 72.

[00:20:49] Henry: That's right. It's a development that the business will need to embrace, and it also means that one must pay attention, of course, to training and maintaining skills. Those kinds of things will be a bit more in focus.

We might come back to the topic of the psychosocial work environment and the hearing from the labor inspection authority on that.

[00:21:09] Monica: Go ahead, Nicolay, because something is happening there too.

[00:21:11] Henry: Let me mention that as well, because I find it interesting both in terms of the notifications you talked about, the notification rules, and the discussion we had a few days ago, or just before Christmas, about guiding whistleblowers to make this institution work as well as possible.

Namely in connection with the psychosocial work environment. And there, the labor inspection authority has proposed a change to a couple of rules in chapter 4, which deals with the psychosocial work environment, to clarify this further. This is something you have been very concerned with in your work with us for several years, namely focusing on how to improve the psychosocial work environment. This is because a very large part of sick leave in Norway is due to, shall we say, psychological conditions. Depression, not thriving, harassment, those kinds of things in the workplace. So now the labor inspection authority wants to strengthen these rules.

I believe in many ways this is very sensible as well, but it also means that companies will face greater demands to document, back to the issue of documentation. Document that they are truly following up on the psychosocial work environment, conducting surveys, ensuring measures are taken when necessary. That they should both identify factors that make employees sick and psychosocial conditions, i.e., mental conditions, and simultaneously implement measures to improve.

So this is coming more, and I think it's an exciting development in 2025.

[00:22:34] Monica: Yes, that will be very exciting. There is a draft regulation on the table, and I know there is a lot of disagreement between the employee side and the employer side, which I can somewhat understand. On one hand, I think it's very, very good to get clearer guidance on how to work with the psychosocial work environment because terms like work environment risk, for example, are probably only familiar to those who work with HSE.

It shouldn't be like that. Employers, managers, everyone should know what a workplace risk is, which ones typically exist, and how to address them. Because that will lead to a better work environment, fewer whistleblowing cases, and increased productivity. So this is really great.

The downside of having a regulation that is very clear about what the workplace risk factors are and how to work with them is that it becomes very easy for employees to point out violations of those provisions. I already see this in cases I've handled, and when I start looking at the regulation, it's actually very easy to identify where things have gone wrong.

Good, it's good that it's like that because then you have something to measure against, but what I'm a bit curious about is whether it might increase the frequency of disputes in these psychosocial cases, which would be the opposite of what we want to achieve. What we need is calm, and we need good work on the psychosocial aspects. We shouldn't be sitting and pointing at paragraphs and shooting at each other, saying that now you're breaking the regulations, like this and that.

It's not the intention. So, I'm very curious about what will happen with the draft regulation, but I hope that we can achieve awareness and improvement in understanding this set of rules, so that we can actually work on psychosocial issues in a good way.

[00:24:41] Henry: Yes, you know, I am often accused of having an employer's perspective, being an old NHO lawyer and all, and that's a completely justified accusation against me, we can say.

[00:24:51] Monica: Do you see it as a kind of honor?

[00:24:53] Henry: Yes, I think it's an honor for the employer side to act correctly and contribute to value creation in collaboration with, of course, the employees. And I have to say that from my standpoint, I completely agree with you that issues can arise, and the intention is not to create even more processes out of this.

But at the same time, I do think that the psychosocial work environment has been underestimated in many places. So, from an employer's perspective, I also see a lot of positives in this, namely that there should be greater awareness of it. And to identify factors that create a negative atmosphere in the workplace.

I also believe it's in the employers' interest. We shouldn't have too much bureaucracy. I'm not saying that. So, it's clear that a balance must be found. But I'm quite confident that LO, NHO, and the other parties in the labor market, when we provide input to the legislators and regulators, the Labor Inspection Authority, the Ministry, and the government, will find a good balance on this matter.

[00:25:52] Monica: I hope so, and I think if there's one thing to take away from this, that employers need to learn, it's how the way you organize work is crucial to how people feel at their jobs. And it sounds obvious, but it's something I don't think people take seriously enough.

So if you have poor organization with weak leadership or unclear and vague boundaries about who should do what, the level of conflict increases and you get whistleblowing cases. We need to aim to spread this message by 2025. At least, that's my plan, because I believe it can help us... have fewer whistleblowing cases. It will make it a bit easier to be an employer.

[00:26:35] Henry: Yes, a comment on that, because whistleblowing is something you've worked a lot with, both for organizations and by suggesting improvements to regulations and so on. And what I find exciting about much of what you've done there is the idea of investigating without necessarily concluding with criticism, but also being able to conduct fairly quick investigations within the organization itself.

And I think the system we have in place now has made it so that I believe these whistleblowing cases can be handled more smoothly going into 2025, precisely because we've created systems that allow us to address them without making more of them than necessary.

[00:27:12] Monica: Maybe 2025 can be the year where there aren't massive psychosocial whistleblowing cases that explode, but where employers... manage to handle these issues at the appropriate level, as low as possible, without people getting sick and hurt. That would be a great goal for 2025.

[00:27:29] Henry: That's exactly what we aim for when we tackle these cases. Very often, we try to resolve them as quickly as possible at the lowest level.

[00:27:36] Monica: Absolutely. Okay, do you have anything else?

What else is happening in 2025?

[00:27:42] Henry: You know, we've talked about temporary employment and the hiring regulations that might change in 2025 due to a potential new government if that's how things turn out this fall. We've also mentioned a couple of Supreme Court cases, but they might not be so... interesting to delve into much further. However, we have had a few cases from the Supreme Court, including the Stendi case you mentioned. There have been quite a few issues around hiring and equal pay and such. So, we can say that cases and legal disputes around these hiring issues are something we should expect.

We can expect quite a lot of activity in 2025 as well.

[00:28:28] Monica: Yes, and we will get a clarification or a ruling from the Supreme Court regarding the back payment of holiday pay after such a reclassification from being self-employed to an employee. So there are things in the pipeline at the Supreme Court that will be interesting to follow in 2025 as well.

[00:28:47] Henry: And there's one more thing I forgot that I learned in a course this fall, you know.

[00:28:52] Monica: Yes.

[00:28:52] Henry: And then I was with people from LO and got some insight into how they work on some exciting issues. And it was about these platform workers, like those who work for Foodora and Wolt, questioning whether they are employees or contractors.

And there's a lot of push from the labor movement, especially regarding the legislative changes that came in 2023, which essentially expand the definition of an employee. This means, Lill, that by 2025, we will likely see a lot of disputes around this. The expansion of the employee definition could lead to many current contractors demanding permanent employment, claiming they are actually employees.

[00:29:39] Monica: I completely agree, and there are key points in the platform directive that are ready to be implemented in Norway, so there's a lot of exciting things happening.

[00:29:52] Henry: I thought when I heard about this platform thing, that we were talking about the oil platform in the North Sea. That was the first thing that came to mind. But then we quickly learned that it's about these apps, which are called app platforms, or you're more tech-savvy than me.

[00:30:05] Monica: I am much more tech-savvy than you, Nicolay. I never thought about an oil platform here. I was just thinking about Foodora. But anyway, Nicolay, thank you so much for looking into the big crystal ball we have here on the table in front of us. It has been very exciting. We are looking forward to 2025. This is going to be fun.

And to you who have been listening, thank you for tuning in, and we look forward to having you back for the next episode of Arbeids(retts)lunsj. Thank you for today, Nicolay.

[00:30:32] Henry: Likewise, thank you for today.