can you say no to overtime?

by Ask a Manager on October 16, 2012

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A reader writes:

I am a permanent, non-exempt employee, and I qualify for overtime at my workplace. I work overtime every now and then when needed, which I don’t really mind. However, my boss has been talking about an upcoming project where he sees us all working a lot of overtime — comparing it to a past project where people slept at work and did 18 hour days.

As an employee who qualifies for overtime, am I allowed to say no to my manager? At what point am I allowed to say that I don’t want to work overtime and would rather go home? “Occasional overtime” is what I was told when I was hired. When does overtime become more than “occasional”?

Here are the relevant facts:

* Generally, you should try to be flexible and accommodating when you’re asked to take on something at work outside of your normal work schedule, particularly when it’s temporary, but there’s a point beyond which it’s reasonable to push back. Certainly sleeping at work and working 18 hours days falls well over the line of reasonable (unless you knew you were signing up for that, such as if you were working on a political campaign).

* Your employer can require you to work whatever hours they want, and can change it at any time, unless you have a contract that states otherwise.

* A reasonable manager will work with someone who isn’t able to take on additional work hours, particularly when it’s many extra work hours, and particularly if the employee is willing to be flexible to the extent they can be.

* Not every manager is reasonable. But plenty are.

What that means in your situation is that you can absolutely talk to your boss and see if there’s a way to limit your overtime on this upcoming project. There very well may be — in which case, problem solved. But also be prepared for the possibility that he’ll tell you no, this is an all-hands-on-deck type thing … or that he won’t require it, but everyone else will be doing it and it will hurt you professionally if you’re the one person who opts out. In that case, you’ll need to decide if you want the job under those terms.

Start the conversation by saying something like this: “Can we talk about what kind of hours you think we should expect when work starts on X? I can work about 10 extra hours a week (or whatever) during it, but it would be difficult for me to be work significantly more than that on a regular basis.”

Once you hear his answer, you can decide how you want to proceed.

{ 69 comments… read them below or add one }

Employment lawyer October 16, 2012 at 11:06 am

Practically, AAM’s advice is spot on.

Legally, nobody can “force” you to work. The question is really a different one: at what point does a refusal (and subsequent firing) bar you from unemployment?

In many cases, you can refuse a job change and still collect unemployment, when the change is “substantial.” But this varies by state.

It’s not a bright line analysis. In my state, if you work 9-5, for five days/week and you refuse to take a job that is 9-9, for six days/week, you could still collect unemployment. But if they change the job to make it 8:30-6, you might not be able to quit even if you really hate working an extra 90 minutes/day.

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Ask a Manager October 16, 2012 at 11:09 am

“At what point does a refusal (and subsequent firing) bar you from unemployment?”

I might reword the question to “At what point does a refusal to work overtime become likely to get you fired?” … since ending up on unemployment isn’t most people’s ideal outcome!

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Just a Reader October 16, 2012 at 1:05 pm

I think it’s very likely in this type of environment. Given that this seems to be a recurring need, it would be shocking if the extreme overtime wasn’t mentioned during the interview process.

In my former job, I couldn’t have anyone on my team refuse overtime without having to replace them. My new job is a lot more flexible and it wouldn’t be an issue.

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fposte October 16, 2012 at 11:07 am

And in case this was the secret underlying question: yes, it’s legal to fire you for refusing to work overtime.

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Michael October 16, 2012 at 11:23 am

18 hour days?

I’d quit on the spot. Assuming you were a machine and had an instant on/off switch that’s only 6 hours of sleep. Jesus…

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twentymilehike October 16, 2012 at 11:33 am

that’s only 6 hours of sleep.

Years ago I worked a job at a coffee-shop-by-day/jazz-club-by-night. Often one person would work the night before (open till 2 am) and then work a morning shift (opened at 6 or 7). At that time somewhere I heard that the law required 8 hours minimum between shifts. Does anyone know if there’s any truth to this?

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Ask a Manager October 16, 2012 at 11:37 am

It’s not common, but there are a few places in the U.S. that do restrict the number of hours and days someone can be required to work in a row. There’s a discussion of this in the comments on an older post, starting here:
http://www.askamanager.org/2012/08/terse-answer-thursday-7-short-answers-to-7-short-questions-6.html#comment-92454

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fposte October 16, 2012 at 11:49 am

Though Missouri is claimed there as an “8 hours off” state, and I’m pretty sure it’s not. So this is definitely one of those areas where it’s good to check your own state department of labor’s website before you count on any particular rights.

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LL October 16, 2012 at 11:43 am

State laws may vary, but I don’t think federal labor laws stipulate a mandatory period of rest between shifts, except for children. Some positions, such as truck drivers and machine workers, require a 24-hr period of rest once a week – but that’s not the same as requiring 8 hrs between shifts.

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Ask a Manager October 16, 2012 at 11:46 am

Correct, there’s no federal law on the number of hours someone can be required to work or the length of a break (or even requiring any break at all); that’s all up to individual states.

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AnotherAlison October 16, 2012 at 11:52 am

Obviously of no import to the OP, but truck drivers are required 10 hrs off between shifts. (I’m not sure it’s 10 hrs – they recently changed this. The major change requiring a daily driving limit was back in the early 2000s & was a huge deal. My dad’s a truck driver.)

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Jamie October 16, 2012 at 11:57 am

I think that’s an excellent policy. I’m not generally in favor of the government micromanaging businesses, but in cases like this where it protects the drivers and the public from some companies pushing too hard I can stand a little enforcement.

FWIW Mike Davis from Tiger Oil had a similar policy (and stricter) for his drivers.

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fposte October 16, 2012 at 11:43 am

Unless you’re something like a trucker or an airline pilot, federal law in the US doesn’t care. State laws may offer more restrictions, but since even California doesn’t seem to have a minimum time between shifts, I suspect that no state does.

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Jamie October 16, 2012 at 11:48 am

Illinois has the One Day Rest in Seven Act.

Employers must provide 1 full day off in every seven and if workers volunteer to work the 7th day the employer must still secure a permit.

Also, 20 minute unpaid meal break for every 7.5 hour shift, to begin no later than 5 hours after start of shift.

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fposte October 16, 2012 at 11:51 am

Yes, that seems to be the most common kind of work-hour limitation–that you have to have a certain amount of time off in every week.

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Jamie October 16, 2012 at 11:55 am

Yes – I thought it was 2 consecutive days, actually, and was surprised that it was one. Either it’s recently changed or I was just mistaken and conflating a previous employer’s policy with the law.

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sunny-dee February 4, 2014 at 1:12 pm

My husband is a restaurant manager, and he rarely gets two days off consecutively (never on a regular schedule, usually only for a holiday or special occasion). He also works turnaround shifts, which is sometimes the nature of being the boss. At least in our state, there are neither rules nor conventions against it.

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Michael October 16, 2012 at 11:44 am

I worked at McDonalds and had to close one night only to turn around and work breakfast in the morning. Granted, that was only about 3 hours of sleep but all I had to do was work a normal shift in the morning and I was out the rest of the day. On top of this there was usually a very clear distinction between breakfast staff and afternoon/evening staff so mixing like that was rare.

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some1 October 16, 2012 at 12:20 pm

When I worked in retail, this was common. For holidays, you might close which means your shift doesn’t actually end until 11 or midnight and have to be back at 7 to open.

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Steve G October 16, 2012 at 12:43 pm

They did this to me at Ralph Lauren. Yes, I probably got the minimum legal time off between shifts, but by the time you drive home, relax, fall asleep, wake up and get ready again, it was 6 hours of sleep, which I can’t operate on.

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Kat M October 18, 2012 at 10:18 am

We used to call this the “clopener” shift: closer at night, opener the next morning. Never much fun. :P

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Jay October 16, 2012 at 11:45 am

I don’t think it’s the law, but I know some retail places (Kohl’s, for example) do have the 8 hour minimum gap as company policy.

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Jamie October 16, 2012 at 11:52 am

Yes, a lot of companies in manufacturing have rules about required time off between shifts – as well as moonlighting rules – as a safety measure.

It’s important to check your employee handbooks as they are binding and will often give you protections above what the law requires.

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fposte October 16, 2012 at 12:01 pm

Also one’s union rules, if those apply.

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Jamie October 16, 2012 at 12:06 pm

Excellent point.

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Josh S October 16, 2012 at 5:19 pm

Ah, the dreaded ‘clopen’.

We had this when I worked retail–shop closed at 11 on Friday nights, but we were there til 11:30 or later to clean and close the registers, etc. Saturday morning was a 7am open, and we were supposed to get there/clock in by 6:30 to be ready for customers (count the drawers, etc).

It was rough, and that’s with a full 7 hours in between. I can’t imagine only 4 hours in between.

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Anonymous October 16, 2012 at 11:43 am

Six hours if they do choose to literally sleep at work (and yes, can instantly fall asleep, don’t need to shower…)!

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JessB October 16, 2012 at 11:40 pm

And it’s only exactly six hours if you include time for bathing and eating as ‘work’, which I can’t imagine the boss will do.

Stories like this one make me glad I’m a temp, and can charge for time over what was agreed upon.

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marie October 16, 2012 at 11:24 am

I was a w-2 contractor this past summer, and was “not allowed” to work any hours beyond 40 – basically because the company did not want to pay me overtime. Fine by me, until there were several instances of when I had to work overtime to meet deadlines and I was not allowed to claim those hours on my time sheet. Completely illegal. If you work overtime, you are entitled to be paid overtime.

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Mike C. October 16, 2012 at 12:52 pm

I hope you reported this to the state labor board. Not paying wages is a serious, serious offense.

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Jamie October 16, 2012 at 12:57 pm

It depends on the contract. Contractors aren’t bound by the same wage laws as employees. For instance you can pay a contractor a fixed rate for a project, regardless of how many hours are involved. Some contractors use time sheets in order to calculate job costing and not for wages.

If time sheets were involved because she was working for an agency and being paid hourly, yes, it gets sticky and it could be a wage violation.

I’m not saying there wasn’t a violation – they may have been – but the fact that she was a contractor means you can’t immediately jump to that conclusion.

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Mike C. October 16, 2012 at 1:08 pm

Doesn’t the W-2 designation make the difference here?

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Jamie October 16, 2012 at 1:13 pm

No. It just means she’s working as an agent and the agency is taking the taxes out, etc. You can still have exempt or project based pay scales.

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fposte October 16, 2012 at 1:19 pm

Would her beef be with the agency, then, or her workplace? W-2 contracts are totally foreign to me.

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Jamie October 16, 2012 at 1:22 pm

Agency – as they are her employer. The workplace is merely the client.

Now if she is paid hourly and the client doesn’t want to pay OT, that’s a fight between the agency and the client. The agency should never ask her to falsify records in any instance. But the agency is the one required to comply with labor laws.

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Suzanne October 16, 2012 at 11:29 am

I worked a temp job a few years ago that required we work overtime (not 18 hour days, thankfully). Since it was a temp job, we were pretty much told to work or else. Several of us called the temp agency who had no sympathy. “You can quit” was all they told me, “but we don’t have anything else.” So, I ended up doing the OT, although i spent most of it at my computer on Facebook because there was very little for us to do.
Seriously, I think I could write a book on the number of ways companies lose money through mis-management…

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Sharon October 16, 2012 at 12:34 pm

I’ve done that too. I was a computer programmer/admin/support person many years back for a 911 dispatch agency. When massive floods hit our area, we IT people were asked to trade off shifts for round-the-clock onsite staffing just in case there were any computer problems. (Our normal on-call strategy wasn’t good enough for some reason.) We had to do that for 4 days. There were no computer problems (duh), so we basically used FEMA funds to trade shifts playing minesweeper and surfing the web.

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Steve G October 16, 2012 at 12:40 pm

That is nuts, if there was no work to do.

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Malissa October 16, 2012 at 12:09 pm

Would taking work home with you be an option on this project? This option could keep the project up to speed while letting everybody see their families and get their laundry done.

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Natalie October 16, 2012 at 1:47 pm

I’m not 100% sure, but that might get sticky with non-exempt, hourly employees.

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Rana October 16, 2012 at 2:14 pm

Plus it could set a precedent that the OP might not want to encourage.

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Blinx October 16, 2012 at 12:13 pm

I’ve done this periodically throughout my career, both as an hourly employee and a salaried one. There were certain deadlines that absolutely had to be met and the necessary info would not be available before a certain date (i.e. financial data for annual reports). Since this only happened once a year or so and only lasted 2 or 3 days, I was not thrilled but I could endure it. I either got overtime comp days. If it went on for more than that, I’m not sure what the quality of work would have been.

Yes,there is a camaraderie that forms when we were all in it together and you get to tell the war stories later on. You get to put it in your accomplishments at review time. However, when it came time for layoffs, no one remembers. Find out the particulars of what would be required, see if that meshes with your work/life balance, and stand your ground.

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Jamie October 16, 2012 at 12:19 pm

“Yes,there is a camaraderie that forms when we were all in it together and you get to tell the war stories later on.”

This is important – I can’t tell you what a huge difference this kind of attitude makes.

I have done it where there is the added camaraderie and without…and when it’s there it makes it not just bearable but actually kinda fun (yes, really. Fun) and without it when everyone is just trudging through marinating in resentment…not fun.

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Thomas October 16, 2012 at 2:09 pm

I had that kind of camaradarie when I first started at my current job: the team had a massive backlog it was working through. Overtime was never so much fun.

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NicoleW October 17, 2012 at 10:31 am

Blinx, I liked what you said about slogging through together. We have projects like that, but it’s usually 2-3 weeks maximum and we get to see the results of our hard work with the finished product.

But I also really identify with the following:
“However, when it came time for layoffs, no one remembers.”

This is exactly what happened at my company two years ago, although we were all exempt, so no OT and also no comp time. We had just completed one of these work insane hours periods, and then half my department was laid off, and those of us who remained received salary cuts. (There was tons of work to do but less profit.)

The other issue is how long the extreme OT continues. A few days, or even a few weeks, isn’t so bad if you are being compensated. But a months-long project isn’t sustainable for those kinds of hours. And if you’re paying your current employees time-and-a-half for an extra 8 hours every day, why don’t you just hire some temporary or project staff to work with them. The costs of training would surely even out with not having to pay so much OT!

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Someone October 16, 2012 at 12:38 pm
Jamie October 16, 2012 at 12:48 pm

18 hour days are excessive – I don’t think anyone would argue that point. But there is a happy medium between requiring excessive OT and making declarative statements, as are in the article, that every hour over 40 lessens productivity.

This article gets posted more often than any other, and each time I feel compelled to point out that how many hours you can work before you hit your wall is very individual.

I know people who think it’s crazy to work over 35 hours a week because that’s when they start to drain out. I think 55-60 is reasonable for me, I do get irritable after about 65 or so unless it’s a really intensive project.

There is no one recipe which works for everyone and 40 is a guideline – it’s not a magic number. If we turned into pumpkins after hour 40 a lot of us would be in big trouble.

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Mike C. October 16, 2012 at 1:06 pm

Yes, every bell curve has a tail. That doesn’t mean the research drawn from the study is bad.

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Jamie October 16, 2012 at 1:11 pm

The absolute statements are bad and misleading. The statement that “but every hour you work over 40 hours a week is making you less effective and productive over both the short and the long haul.” is overreaching.

If there is legitimate research behind the hyperbole these kind of absolute statements guarantee that many people won’t look at it…because the premise is faulty on the face of it.

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Mike C. October 16, 2012 at 2:52 pm

There aren’t any absolutist statements, because the “On average” is implied. Additionally, if people aren’t willing to look at the data, then they are being short-sighted.

http://stats.oecd.org/Index.aspx?DatasetCode=LEVEL

It’s pretty clear that there isn’t a direct correlation among OECD nations between hours worked and value per hour.

Look, why does this upset you so much? Most folks don’t do their best work when they are working a ton of hours. Most research says this number, on average is around 40ish hours per week. What is so objectionable about this statement that it would cause people not to even consider the data?

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Ariancita October 17, 2012 at 12:26 am

Agreed. Always good to go to the data (if you have access to it). And agreed that the “on average” is implied. However this particular article is written up, the data and analysis still stand.

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CatB (Europe) October 16, 2012 at 2:57 pm

I remember there was a discussion, several posts earlier, about the 9-to-5 work day, and the general consensus was that “9-to-5″ was a shorthand for a certain kind of work setup. My guess is that’s the case here also – “40 hours week” being a shorthand for “personal optimum weekly work time”. Such posts as the one cited suffer necessarily from the illneses of popularizing scientific studies, I think.

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IT October 16, 2012 at 12:50 pm

Its pretty common in IT to have projects that require all hands on deck for several months. We just finished two back to back projects (consolidating data centers) where no employees were not allowed to take time off and everyone, including a number of contractors, worked more than 80 hours a week. These two projects lasted from May to October. The contractors that did not want to work the overtime were released from their contracts (no unemployment, obviously).

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Mike C. October 16, 2012 at 12:54 pm

It’s only common because IT workers are screwed over in the federal overtime laws. If they had to pay you overtime I’m willing to bet a whole lot of firms would figure out how to schedule work more evenly over a development cycle.

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Mike C. October 16, 2012 at 1:02 pm

OP, 18 hours/day is crazy. Hopefully you and your coworkers can spread the work process smoothly to ensure you aren’t going above 10-12 hours/day.

As far as the law is concerned, you’re screwed. I used to work at a place where after weeks of crazy schedules (no days off, etc) they were given the choice of the overtime or the door. My current place of employment also has lots of overtime, but they also care about safety so it’s never too crazy.

In addition to what Allison said, I want you and your coworkers to be extra careful about safety issues. Be really, really clear about any dangers at work – including traveling to and from! Watch out for each other and double up where you can. Checklists are your best friend here.

Being sleep deprived is a lot like being drunk, and I have no idea why employers want employees suffering from either at work.

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Anna October 16, 2012 at 1:50 pm

+1
Even if you’re not driving (or operating heavy machinery), sleep deprivation is not something you’ll want to mess with.

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Wow October 16, 2012 at 1:27 pm

Hey OP, I think Alison is right but I want to sympathize with you.

18 hour days are ridiculous, even in public accounting (where we are all exempt). I’ve heard stories of 18 hour days but am pretty sure they’re all apocryphal. At the same time if my manager put his foot down on adding a procedure or something that would mean we have to work those hours to make the filing deadline, or if a staff person quits in the middle of a project and no one else is available, the work has to get done, you know?

I find it empowering, personally, to make it a conscious choice. Remembering that I can always choose to leave (this is easier in my industry – experienced CPAs are highly coveted/recruited) and that by accepting the many rewards (pay, benefits, etc) of my employer I am also accepting demanding schedules makes me feel more in control and less like I’ve been taken advantage of.

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Tax Nerd October 16, 2012 at 1:58 pm

I worked a few 18-hour days in public accounting, but not many. I’m certain my work product suffered from it. Once for a marketing proposal. Another time calculating how much tax and penalties a client owed for its employees that were several years delinquint in their tax returns.

I heard tales of a New York City office of one of the Big Four mandating that people put in a solid 24-hours in the office at one point. I have no idea what they expected to get out of that. People were crying from exhaustion, and I imagine that their work was useless after hour 20 or so. Rumor has it that they also got a “Today is my last day. My laptop is in _____’s office” resignation.

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Wow October 16, 2012 at 2:04 pm

Yeah I work in a pretty small market, but I have a friend on a big time finance client at a B4 office in NYC and I would totally believe him if he said they put in 18 hours days during busy season.

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Wow October 17, 2012 at 11:15 am

haha, oddly enough after this discussion I stayed late last night working on a marketing proposal :) Not 18 hours though!

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ooloncoluphid October 16, 2012 at 2:49 pm

And this is why unions are a good thing.

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Wubbie October 16, 2012 at 3:07 pm

Back when I was a temp (>10 years ago) I did an assignment on a project, and the first day they said “work as many or as few hours as you want, we don’t care as long as the project gets done!” There were 5 of us working on the project. I worked 3 weeks straight, averaging about 90 hours per week. A couple of others did a little less, and the last two did significantly less time. It didn’t bother me though because we were getting paid for our time and I WANTED to make as much money as possible so I squeezed every penny of OT I could physically manage. I think I topped out at around 110 or 115 hours for one of those weeks.

I currently work as an event planner for a major private university, and a 12-14 hour day is not at all uncommon on an event day. There are usually no more than 2-3 of those in a month (and very often fewer than that). We’ll occasionally do international events that might require bursts of 14-16 hour days for 3-7 days. Honestly, I enjoy the work (and the travel), so I really don’t mind it! No overtime in this position, though, but we do get tons of comp time on top of a very high number of vacation days.

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JuliB October 16, 2012 at 6:01 pm

I’m a (salaried) consultant who works on Accounting and Budgetary systems. We will occasionally have 18 hour (or more) days – and these projects require both IT and Finance staff. People burn out/become unproductive if there are too many days like this over time. (And certainly not if there’s an expectation of this occurring several times over many weeks.) Proper planning and management is vital!

Client staff saying no leads to resentment from their colleagues and management (and the consultants too, but who cares about that). Volunteer to work from home and also try to be very focused – that will help you.

As mentioned above, a lot of bonding happens on the project. If it isn’t something that happens normally, I would think you might be best to go along with it.

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Ben February 12, 2013 at 10:42 am

Just two weeks ago this “new” manager we now have was trying to force me to work overtime on something that never required overtime before this person started. So I straight up said “NO” I will not work overtime for something that is part of my normal routine, I have too much other shit going on in my life to put in extra hours right now. The new manager said “okay” and that was that. Never be afraid to stand up to your boss.

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Glad February 23, 2013 at 11:27 pm

I worked in a company, but couldn’t take overtime, I don’t know why? but someone in my Part of wrod he taken overtime, I think he knows my boss and He every time taken smilling and talking with him. I don’t know what happen but I worked sometime after my work finish. Guys i don’t know what can I do? this is not fair to me from my boss give someone overtime, and to me not givin.

:(

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Vince August 12, 2013 at 12:10 am

The laws should protect people by limited weekly work hours to 50 hr. any Employer try to force the workers to work more than 50 hours a week( unless the worker volunteer for it), then that employer will be fined $250,000 every time they force the worker lol:X

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scott October 9, 2013 at 10:11 pm

I work 12 hours 4 days aweek I do one week days then nights Monday to Thursday. I work friday on day sometimes only till 3 as I have my little girl. My boss said to me tonight that he needs cover Friday nights. but I cannot do it as I have my little one and my mum has cancer so I look after her at weekend and if I do not do the overtime he will change my shift pattern so one week I do Tuesday till Friday then Monday Thursday what can I do help I pay the bills for my mum am so worried ???

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Kristjan Birnir March 22, 2014 at 6:08 pm

My best advice would be to check your employment contract, and see if overtime is required on your contract, if it isn’t then then you should have no problem refusing to work overtime. If you accept to work overtime its always a change that you will end up being abused to work more and more overtime without you being payed more. Some companies do that others actually pay the overtime even if they don’t request it in the employment contract. Some companies might end up fire you for not wanting to work overtime, even if they don’t request it in your employment contract but that kind of sacking might be illegal so you could always sue them for unfair sacking.

I personally find it best if the overtime is actually requested in the contrct, at one company I worked it was requested that you worked max 10 hours 5 days a week, first 8 hours being regulars, and next 2 being the overtime hours, and I never was in limbo regarding the overtime. But at another company I worked it wasn’t in the contract yet you were semi-constantly asked to work over time, I ended up refusing almost every time I was asked, since the work was unintresting and I disliked the place.

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tata April 22, 2014 at 5:52 am

Even though I am a supervisor am I required to work 24 hour shift with no break and the general manager doesn’t really care that I am the one working all of these hours. I always end up working almost another 40 hour work week after my regular 80 hours for two weeks. Is this right or legal? I live in Oklahoma by the way!

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