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Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Are you adamant you do not want to opt out of the WTD?
No, I just want to protect myself, since this is a US start-up, I know I'll have to work longer than standard, but I don't want to end up being 'expected' to work really crazy hours and then have nowhere to turn to if I'm completely exhausted ( only have 1 week's notice in my 6 month probation period), so I was hoping I could suggest to them, that if I wanted to opt-in again, I could change it so it reads something like - 'If I want to opt-in to the WTD, I should do so in writing to my employer giving a minimum of 4 weeks notice', or something like that.
ok let me get my response ready please
An employer cannot force an employee to opt out of the maximum 48 hour working period, but they can give the employee the option of doing so. Also, whilst it is unlawful to dismiss a worker or otherwise victimise them for refusing to sign an opt-out or for opting back in, there is currently no law that prevents an employer from refusing to employ someone unless they opt out. So to keep the job you may wish to opt in and deal with any opt out at a later stage.
Even if you had opted out of this limit, the way it is calculated is over a 17-week reference period where the average working hours are calculated. So it could easily happen that you have decided to stay within the 48 hour limit but you are made to work long hours in some weeks or on some days, yet the average over the 17 weeks is less than 48 – that would still be legal even though in some weeks you could work way above the 48 hours you think you may have decided to stay opted in for.
Saying that, even if you have agreed to opt out of the limits, you cannot be required to work excessively long hours if this creates a reasonably foreseeable risk to your health and safety. This is because the employer has a duty at common law to protect workers' health and safety.
Once you have opted out, you can cancel this by giving at least seven days' notice unless the opt-out agreement provides for longer notice, which cannot exceed three months. You could try and negotiate a shorter notice period with the employer but remember they do not have to do this and can also refuse to employ you if you are not happy to sign this opt out.
that's great, that really clarifies some of the finer points, I am a working parent to a young child, so as you can imagine, I just want to be sure I'm not under fear of dismissal because I couldn't cope, thanks for your advice, I'll still go back to them and see whether I can simply reduce the period from 3 months notice to 1 or 2 months, (I think they'd be ok with that), but I feel more reassured now.
You are most welcome, hope you get this resolved