Moonlighting?
Print this Article | Send to Colleague
Question
We just discovered that one of our full-time employees is working a second job at another company. Are we allowed to prohibit our employees from “moonlighting”? We are afraid this employee’s other job will interfere with his ability to adequately perform his position at our company.
Answer
Implementing a broad policy prohibiting all outside employment, or otherwise seeking to limit what employees do outside their scheduled work hours, is generally not a best practice. Most additional employment is lawful conduct that presumably would occur during non-working hours away from the employer's premises. A policy or practice that seeks to prohibit outside employment can lead to resentment among current employees (who may, for financial reasons, need additional income) and create a disincentive for employees to be honest with their employers—in other words, employees may still take but not disclose secondary employment. Furthermore, in addition to the federal National Labor Relations Act (NLRA), which protects union and non-union employee rights, some states provide employees with protections under lawful off-duty conduct laws. Blanket employer policies that prohibit moonlighting may violate the NLRA and/or state law.
Employers who want to prohibit moonlighting by employees should outline specific business-related concerns for doing so. Employers can generally implement conflict of interest policies, which may be enforceable if they seek to prevent an employee from taking a second job that actually and directly conflicts with the employer's essential business-related interests. Of course, a determination as to whether a second job conflicts with the employer's essential business-related interests should be made cautiously and on the basis of reasonable and reliable information. Given the legal complexities, an employer should consult with legal counsel before implementing any moonlighting policy.
That said, an employer can generally require that employees maintain the confidentiality of proprietary information and not use company resources and time for work on matters that are not company-related. Also, an employer should require that any employees who take second jobs satisfactorily perform the duties for the employer when they are at work. In general, an employee who is unable to perform job duties or meet scheduling obligations because he or she has another job can be disciplined or terminated. If an employee is not meeting expectations due to secondary employment, the employer should address this issue from an objective performance management standpoint and in a manner consistent with company policy and practice.
