Question

We are concerned about our employees moonlighting. What options are there for us to limit or better control the practice?

Answer

According to the U.S. Bureau of Labor Statistics (BLS), in 2022 more than four million American workers were moonlighting, defined as working at both a full-time job and a second part-time job.

Perhaps even more surprisingly, a few hundred thousand workers held two full-time jobs simultaneously in 2022.

Moonlighting employees often do not inform their primary employer about the second job, which may lead to problems.

Employees’ reasons for moonlighting are as long and varied as you can imagine. They include money, more interesting or challenging work at a second job, testing the waters to see if they’re going to make a career move, working in the family business, learning a new skill, or operating their own business.

Employers may have concerns about employees moonlighting because of its negative impact on productivity, safety or use of trade secrets.

Massachusetts employers may adopt a moonlighting policy that would limit employees’ off-duty conduct because, unlike some other states in the country, the state has no law regarding lifestyle protection. Several states have adopted significant employee off-duty protections. California, Colorado, New York, and North Dakota all prohibit discrimination based on a lawful activity by an employee off-premises during non-working hours.

While Massachusetts’ off-duty activity limitations are not enumerated in the laws, any excessive or unreasonable intrusions into an individual’s off-duty conduct may give rise to a right to privacy claim under the Massachusetts privacy law. MGL c 214 1B.

Another option for employers interested in adopting a moonlighting policy would be a policy rooted in acquiring information. Such a policy could provide management with the opportunity to learn who is moonlighting and where they are doing so to determine if there is any risk to the company.

The remainder of this article touches on some of the more common concerns about adopting and enforcing any moonlighting policy.

Employer options when an employee’s productivity is decreasing due to moonlighting.

Moonlighting employees should be held to the same performance standards as other employees. If you have evidence that the employee’s performance has declined over time, meet with the employee confidentially and explain what is happening with the employee’s performance. Keep the focus on performance issues and cite examples to help the employee understand your concern. If the employee happens to mention that she or he is working two jobs, refer the employee to your company policy about your job being the primary position and remind them they are expected to meet your performance standards. If you don’t have a policy, this may be the time to consider creating one.

Be aware that the employee may deny that moonlighting has impacted performance and may attribute it to a completely different and unexpected reason such as harassment, a disability triggering the need for reasonable accommodation discussion, or difficulty with a coworker.

Working a second job while on leave of absence

If one of your employees is taking an authorized leave of absence, such as under Paid Family Medical Leave (PFML) or Family Medical Leave Act (FMLA), employers may want to explicitly state in the policy that the employee is prohibited from working at another job while on leave. Be sure that your employees understand that any leave must conform with the legally authorized reason, and that the law does not exist to allow the employee time off from one job so that they may engage in activity for another job.

Burning the candle at both ends

If an employee explains that he or she can’t work their assigned schedule due to moonlighting, an employer should make it clear to the full-time employee that the position with your company is the primary job. Be sure that the employee understands that your company will not adjust work assignments and schedules to accommodate an employee’s outside jobs.

Is there a conflict here?

One of the primary concerns with any employee moonlighting is the risk of the employee working at a competitor and disclosing confidential trade secrets or other information to the second company. Employers may adopt a policy requiring employees to disclose the name of the second job, which should include a statement as to why the employer wants this information. It may be helpful to include in the policy examples of activities that constitute a conflict of interest. As part of the enforcement of the policy, employees may be asked to make a choice between which employment relationship the employee wishes to continue.

Hey, those tools belong to the company!

Employers certainly may ban employees from using company equipment and/or work time to perform work for an outside job. Company equipment runs the gamut from trade tools to computers or cell phones, depending on the person’s position in your company. A company’s policy should clearly state that these items are issued by the company for use only while performing work for the company.

Everybody seems to be moonlighting at my company.

At this point employers have two choices – live with the status quo or attempt to uncover and address the reasons for the spike in moonlighting. Adopting the latter strategy may raise some fundamental questions about your workplace and what you are prepared to do about them. For example, if employees are concerned about wage levels, can the company increase employee wages sufficiently to minimize the amount of moonlighting? If employees tell you the work is not challenging enough, is there a way to alter your operation to make it more challenging?

Conducting an employee survey may help provide you with more information here but then remember that once identified, employees are likely to expect you to address the issues.

Keep in mind that moonlighting policies may be subject to legal review. A 2018 case from the National Labor Relations Board highlights this fact.

Several employees of a maritime cargo company brought an unfair labor practice case to the National Labor Relations Board (NLRB) alleging that their employer’s moonlighting policy was too broad and violated federal labor law. The administrative law judge (ALJ) agreed with the employees and struck down the employer’s ban on workers taking a second job as being too broad.  The ALJ determined that the policy violated the law because of the way it was phrased. The ALJ focused on two provisions in the policy that stated any work by the employee at another company would violate the moonlighting policy if the moonlighting job:

• Would be inconsistent with the company’s interests or
• Would all have a detrimental impact on the company’s image with customers or the public.

While the company claimed that the intent of the rule was safety and preventing employees from working for competitors, the ALJ determined that those concerns didn’t outweigh the employees’ substantial, core National Labor Relations Act (NLRA) rights to organize, associate and affiliate with other employees and participate in union activity on non-work time without their employer’s interference. Section 7 of the NLRA (enabling employees to engage in concerted and protected activity) applies to both union and non-union workplaces.

That means that any policy suggesting concerns over company interests and/or “detrimental impact on the company’s image” are the types of wording that may draw the attention of the National Labor Relations Board.

If you do not already have a moonlighting policy, you will want to take care in crafting one so that it achieves your purposes while not running afoul of state (right to privacy) or federal law (NLRA). The policy should be narrowly focused on topics such as employee performance, protection of trade secrets, and security/safety concerns, and should provide the employer with discretion to approve or deny moonlighting requests.

Members with questions about moonlighting or any other human-resource matters may call the AIM HR Helpline at 1-800-470-6277.