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cogitech
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p.1 #1 · Overtime?

My wife and I quoted a job based on a daily rate. We went and did the work, but the shoot took 15 hours. This is 7 hours longer than we had accounted for in our daily rate. We have informed the client that we need to be fully compensated for our time. The client is stating that it is "accepted" in the industry that the shoot goes until the job is done and that is included in a regular daily rate.

What would you do?

(And before you ask, no, we don't have a contract (stupid, of course))

Note: We still have the images.

Edited on Nov 19, 2007 at 02:55 AM

Nov 13, 2007 at 09:51 PM

cwebster
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p.1 #2 · Overtime?

If you don't have a contract, you don't have a leg to stand on. The fact that you bid the job at a fixed price, not an hourly rate, means that since it took longer you eat the difference.

This is exactly what contracts are for.

No where did you create any expectation that you would charge for additional time beyond what is "customary" so you aren't going to gain much by insisting on being paid. In the end you might gain the pay, but you will have lost the client's goodwill.

My $0.02 worth

Chas

Edited on Nov 19, 2007 at 02:55 AM

Nov 13, 2007 at 10:08 PM

Nathan Whitchu
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p.1 #3 · Overtime?

You don't have a contract, sounds like you turn over the images and collect your check. You should have specified, in writing, how long your "Day Rate" covers, how long your "Half Day Rate" covers and what happens to each when the assignment runs long. I would consider this a learning experience. Weather or not his idea is truly the industry standard is beyond the point, it's what he believed he was paying for and you didn't tell him otherwise.

Edited on Nov 19, 2007 at 02:55 AM

Nov 13, 2007 at 10:13 PM

nathanlake
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p.1 #4 · Overtime?

The only chance you might have is if the client was somehow directly responsible for the overrun. Did they somehow slow things down in a way that could not have been anticipated. If that is the case, a court might find in your favor. Not sure if it is worth that effort, but that is up to you.

Edited on Nov 19, 2007 at 02:55 AM

Nov 14, 2007 at 01:15 PM

cogitech
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p.1 #5 · Overtime?

Thanks everyone,

The client and the food stylist determined the speed of the process. It was completely out of our control. Due to the client's poor planning, both the photographers (us) and the food stylist did 7 hours of overtime.

The client intended to shoot two series of seven products and one series of three products in "a day." That's 17 products, 14 of which needed to be manipulated extensively by the food stylist before and during shooting. We indicated beforehand that the speed would be determined by the stylist and the client, not by us, and that we did not think it was realistic to try to shoot that many products in one day. The food stylist told us on location that he would normally do between 3 and 5 products a day. We completed one series of 7 products in 15 hours, so I guess he was correct.

I have already offered the client a discount on the overtime hours (charging our standard rate rather than our overtime rate) but it looks like we might need to knock even more off the total.

Regarding the contract; they don't have one either (and they don't have the images). I've already sought legal advice and I have been told they have no legal right to the images until they have paid for them. I have also been told that the Canada Employment Standards Act defines a "work day" as 8 hours and that if we worked for 15 hours, we should be paid for it, regardless of contract.

In summary:

1) We'll have a contract from now on, even if it does seem like a small job.

2) We had nothing to do with the fact that it took so long. We could only shoot as fast as the products were prepared.

3) I do not believe for one minute that the client believed they were paying a flat daily rate for 15 hours of photography services, and I do not believe the law will see it that way either. Since the legal definition of "a work day" is 8 hours, the client should have *expected* to pay more for 15 hours of work. And they will. Or they will not get the images.

Edited on Nov 19, 2007 at 02:55 AM

Nov 15, 2007 at 08:20 PM

Jonathan H
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p.1 #6 · Overtime?

I commend you on sticking to your guns - this is far from easy and I've capitulated plenty of times myself. A 1-2 hour OT wouldn't be worth pursuing, this however is a full extra day and you should be compensated accordingly.

Edited on Nov 19, 2007 at 02:55 AM

Nov 16, 2007 at 05:19 AM

Micky Bill
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p.1 #7 · Overtime?

In the US the labor laws pretty much only apply to employees, not independent contractors. As an independent you are pretty much able to determine what is a "day" is it a set number of hours or is it until the job is complete?
If the stylist was Mr. Speedy and finished it all up in 5 hours would you be refunding the 3 hours?
I usually deal with Purchase Orders not contracts (although POs are a form of contract) and estimates that outline the scope of the job.

1. Good for you in deciding that you need contracts when you are in business.
2. When you saw that the job was running out of control did you notify the client that his overly ambitious schedule was not realistic?
3. What you 'believe' and what they 'believe' are probably two different things. Thats why it's better to have facts than faith when dealing with money.

IMO a court would decide to split the difference because you were both negligent in neither of you having any paperwork so it's a he said/he said situation. Who to believe?

Edited on Nov 19, 2007 at 02:55 AM

Nov 16, 2007 at 06:32 AM

cogitech
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p.1 #8 · Overtime?

Micky Bill wrote:
In the US the labor laws pretty much only apply to employees, not independent contractors. As an independent you are pretty much able to determine what is a "day" is it a set number of hours or is it until the job is complete?
If the stylist was Mr. Speedy and finished it all up in 5 hours would you be refunding the 3 hours?
I usually deal with Purchase Orders not contracts (although POs are a form of contract) and estimates that outline the scope of the job.

1. Good for you in deciding that you need contracts when you are in business.
2. When you saw that the job was running out of control did you notify the client that his overly ambitious schedule was not realistic?
3. What you 'believe' and what they 'believe' are probably two different things. Thats why it's better to have facts than faith when dealing with money.

IMO a court would decide to split the difference because you were both negligent in neither of you having any paperwork so it's a he said/he said situation. Who to believe?

I may offer to split the difference with them, but that will depend on the nature of the client's response. If they are willing to be reasonable and admit that it was not our fault, then I will be much more likely to cut a deal. Otherwise, the judge can decide.

In response to your points:

1) If this only ends up being a learning experience, that is fine with me.

2) I think the fact that it took twice as long to shoot half the products is evidence enough that the schedule and budget was not realistic.

3) True. In the end it will only matter what the judge believes and I believe he'll see it our way. If not, see point 1)

Edited on Nov 19, 2007 at 02:55 AM

Nov 16, 2007 at 02:40 PM

200231786
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p.1 #9 · Overtime?

You can't reasonably charge them the extra, time to make a contract I'm afraid.

James

Edited on Nov 19, 2007 at 02:55 AM

Nov 16, 2007 at 02:52 PM

claudermilk
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p.1 #10 · Overtime?

Seems to me splitting the difference in this case is the fair way to go. Then lessons learned: get a contract first, notify the client when the shoot scheduls is looking too ambitious or starts getting out of control.

Edited on Nov 19, 2007 at 02:55 AM

Nov 16, 2007 at 06:10 PM

lordarka
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p.1 #11 · Overtime?

I can't imagine that labor laws in Canada apply to independent "contractors," which you clearly are, regardless of whether you have a contract or not. Hence, I'm not sure a judge would rule in your favor on that point, though again, I'm learning U.S., rather than Canadian, law.

The fact that it was their fault... I don't see how that helps you, since you don't have a contract with a force majeure clause or other disclaimer of responsibility for the other party's conduct.

As you already realize, not having contract practically eviscerates your position. If you can negotiate a settlement, more power to you, but I don't think litigation will get you far. If you act pro se, you might learn a little bit about civil procedure, contract, and employment law, but I don't think you'll get any money. If you hire attorneys to represent you, you'll likely lose money unless you can get an attorney to take you on a contingent basis (which I certainly wouldn't do, given the facts).

How important are future client relations? Referral business? Given your wobbly position absent a contract, might be better to take your lumps and and move on.

Edited on Nov 19, 2007 at 02:55 AM

Nov 17, 2007 at 05:58 AM

cogitech
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p.1 #12 · Overtime?

lordarka wrote:
I can't imagine that labor laws in Canada apply to independent "contractors," which you clearly are, regardless of whether you have a contract or not. Hence, I'm not sure a judge would rule in your favor on that point, though again, I'm learning U.S., rather than Canadian, law.

The fact that it was their fault... I don't see how that helps you, since you don't have a contract with a force majeure clause or other disclaimer of responsibility for the other party's conduct.

As you already realize, not having contract practically eviscerates your position. If you can negotiate a settlement, more power to you, but I don't think litigation will get you far. If you act pro se, you might learn a little bit about civil procedure, contract, and employment law, but I don't think you'll get any money. If you hire attorneys to represent you, you'll likely lose money unless you can get an attorney to take you on a contingent basis (which I certainly wouldn't do, given the facts).

How important are future client relations? Referral business? Given your wobbly position absent a contract, might be better to take your lumps and and move on.

I've already sought some (free) legal advice and I have been told if it goes to small claims court the judge will likely split the difference, since the client doesn't have a leg to stand on either. I have offered to split the difference with the client. If they accept, fine. If not, small claims court it will be. I'll represent myself.

Future client relations are not a concern. I wouldn't work for them again, knowing what I know now. I now have the distinct impression that they asked for a daily rate with the intention of going way overtime. I have heard stories of other people waiting a very long time to get paid for services they provided this client. Referral business? This wasn't likely even before these complications, due to the nature of the client's business. These people are shady.

Edited on Nov 19, 2007 at 02:55 AM

Nov 17, 2007 at 05:21 PM

Micky Bill
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p.1 #13 · Overtime?

Boy I thought Americans were sue-happy. Realistically how much is this worth in dollars...or is it loonies? Unless it's more than a couple thousand I would chalk it up to an expensive lesson.
But then if you are suing them for the 'satisfaction' that's another way to get back at them.
But small claims or not with no contracts it still comes down to your word against theirs (and you will have to also call on the stylist for a witness). I doubt that your stories are the same.
I wonder if they are posting in another forum claiming that you said you could do their job in one day but took forever to do it and now want overtime....

There are at least 2 sides to each lawsuit and the truth is usually somewhere in the middle.

Nov 19, 2007 at 02:55 AM


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