Your People Experts

Moonlighting Employees

Moonlighting is the practice of working one or more jobs during non-working hours from a primary job. Generally, the primary job is a full-time position and the moonlighting job is part-time; so an employee who works several part-time jobs isn’t necessarily considered a moonlighter.

Why do employees moonlight?
Employees moonlight for various reasons. The most common reason usually is for more income, but other aspects that may seem appealing include:

  • Skills – an employee may feel they’re not given the chance to use their current skills to their fullest, or perhaps another job affords them the opportunity to learn new skills.
  • Security – if an employee doesn’t feel their position is secure, they may seek other avenues to obtain a position that provides better job security.
  • Benefits – a second job may provide additional benefits for the employee, such as employee discounts on merchandise.
  • Flexibility – if an employee is considering leaving the company, moonlighting gives them the chance to try other jobs before making that decision.
  • Hobby/fun – an employee may work at another company just because they like the environment or the work there. Example: an employee may moonlight at a retro music store because they enjoy collecting vinyl albums.

A majority of employers may want a solid commitment from their employees and frown on moonlighting. Reasons for this can include position status – an employee may be in a safety or on-call position and moonlighting could interfere with their ability to respond in a timely manner, or the extra work time might make them more tired and therefore less responsive and attentive at their primary job; production quotas – as in position status, the extra work time might affect an employee’s ability to perform up to standards and meeting production quotas; and perhaps the most relevant reason would be loyalty & presentation – employers will not be happy if an employee is moonlighting with a competitor, especially if a non-compete agreement is in place, or if the moonlighting position is not in line with the company morale’s and values…some companies do have a reputation to uphold after all.

So, do you need a policy on moonlighting?
While moonlighting is not one of the most common policies in a company handbook, it is a facet a company might want to address in order to avoid some of the challenges that come with employees working outside their organization. Employers expect their employees to be loyal, show up on time, and perform to certain standards, but banning moonlighting altogether could cost you a valuable employee and subject you to accusations of trying to regulate what they do on their off-time. A policy on this topic should focus on discouraging, but not outright banning moonlighting, except in certain circumstances.

Consider the below factors when creating your policy:

  • Primary Employer – state that you consider your company to be the primary employer
  • Management Approval – employees must get management approval before accepting outside employment
  • Stipulations – outline what your stipulations are, including: not working for competitors, not working jobs that cast a negative light on the company’s reputation, etc.
  • Discipline – layout your discipline path for failing to produce accordingly due to moonlighting factors (i.e., coming in late, being tired, etc.)
  • Leaves of Absence – particularly FMLA…The FMLA does not have a specification that prohibits employees from working at a secondary job while being on an approved leave of absence from your company….even if the secondary position is the same or close to the job they are working for you. Section 825.216(e) of the FMLA regulations state, “If the employer has a uniformly applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer which does not have such a policy may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained as in paragraph (d) of this section.” So basically, whether or not an employee can work their second job while on FMLA from their primary one depends largely if you have a valid, equally applied moonlighting policy, or a policy that states employees may not perform outside or supplemental work while on leave.

If you do have an employee who is on FMLA and moonlighting, you should…

  • Speak with the employee to confirm the situation.
  • If you have a policy on moonlighting and leaves of absence, make sure your employee understands your position on this. If they signed an acknowledgment, remind them of that.
  • Review the employee’s job descriptions with their medical restrictions then compare this with their second job. They may be performing totally different job duties that would not fall within the scope of their restrictions. If they are performing the same or very similar job duties, investigate why they are able to work the second job and not their primary one. Perhaps they are feeling stressed in their primary position or are having an issue with a co-worker.
  • Discuss with your legal counsel before taking any steps for disciplinary action.

Whether or not you choose to allow moonlighting, you should have a policy outlining your stance that puts your employees on notice about your restrictions and guidelines on employment outside your organization.


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Disclaimer

EAF provides information about current developments in labor and employment law. This information is intended for educational purposes only and should not be considered legal advice. Questions requiring legal advice should be addressed to the attorney of your choice. EAF members may be able to obtain a legal interpretation through our FREE Legal Hotline.