Freelancers' Questions: Can I claim overtime?
Freelancer’s Question: I have been freelancing as a
Marketing Manager for the past 6 weeks. But the employer has refused to pay me
for any additional hours over my contracted 25 per month.
One of the employer’s representatives says that the extra hours were not authorised - even though she was aware of me telling her at the time that I am over my hours (and required immediate work on certain days outside of regular office hours).
Because of what she has told me, I am not charging overtime on the invoice I’m preparing, just the normal pay for the hours. But do I have any rights to claim for those hours?
Expert’s Answer: The simple (yet somewhat unhelpful) answer is, ‘it depends.’
As you are working as a freelancer, you are not subject to the same protections of an employee under a contract of employment. I won’t go into detail on this point, as I’m sure most workers who have taken the decision to freelance have some degree of knowledge about this. Your starting point would therefore be the contract you signed with the company.
What does your contract say?
It’s impossible to provide precise legal advice without having seen all of the paperwork, although the specific provisions of the contract will be vital in determining whether you’re able to claim for the additional hours you’ve put in. I appreciate that you’ve been told you’ve worked too many hours and work is still outstanding, but it’s certainly worthwhile checking just what was agreed in writing between you and the end-user.
What do your Terms & Conditions say?
In an ideal world, a freelance worker would decide the terms on which they are engaged and provide the contract containing their terms and conditions to the engaging company for signature.
In the real world, however, many companies prefer to engage freelance workers on their own terms and will often have their own form of contract containing terms which are preferential to the company. As a general rule of thumb, the party who puts the contract forward will have the upper hand, although there’s certainly room for manoeuvre and no reason why certain terms can’t be negotiated.
Was it a ‘time spent’ or ‘fixed-price’ agreement?
Some contracts will stipulate a fixed price for the work to be undertaken, while others will provide for payment on a “time spent” basis. It is quite often the case that contracts containing terms common to both types are used,such as where bonus payments are triggered for completing work within a specified time or for undertaking certain pre-agreed tasks within the timescale.
It is therefore vital for freelancers to know, precisely, what they’re signing up to from the outset.
Three things to check in your contract/Ts &Cs
The key points for you to look out for include:
· Scope of services to be provided. Was the “immediate work” which the client asked for included in the contract? If not, you’re well within your rights to refuse to undertake any this work unless you’re remunerated for it.
· Working hours. It’s worth double-checking that your agreed working hours reflect what you’re being told verbally; i.e. 25 hours per month consisting of x hours outside of normal office working hours.
· Payment. The amount you’re to be paid, the dates on which payments are to be made and the method of payment are vital terms, but most people overlook terms relating to payment against certain milestones, such as payment upon completion of a certain project or after a certain amount of time. It’s worth checking whether there’s a clause along these lines you can seek to rely on.
To review, it’s important to be aware from the outset that you’re confident you can complete the work within the timescales set out in the contract, or to negotiate a change to allow for pre-agreed work to be completed within a timescale agreed between you beforehand.
Looking at your contract, if you’re able to track down a suitable clause then you would be within your rights to either decline to undertake the additional work or to negotiate additional payment to undertake the extra work.
Be aware, however, that refusing to undertake additional work is likely to jeopardise your chances of securing more work in the future with the same company, although most companies will understand that they can’t get something for nothing.And if they don’t, perhaps it’s worth considering whether you really want to be engaged by them again, particularly if there’s no shortage of work out there.
At Lawdit, we offer a free 30-minute consultation so feel free to call (023 8023 5979) if you’re still stuck, or drop us an email and we’ll be happy to discuss matters with you.We have years of experience in this area of law and can draft a standard-form contract based around your particular needs which you can use as a starting point for future negotiations.
expert was Michael Coyle, a director at Lawdit
Editor’s Note: Further Reading -
15th April 2012