MMC, Inc. HR Tip Volume 1 Issue 10

September 2009

Moonlighting Trend: Employee by Day, Entrepreneur by Night

Written by: Michele O'Donnell, M.S. Human Resources Management

In today’s economic climate, employers are facing the ever-increasing situation of employees taking on additional jobs outside of their full time employment. Many employers are encountering various issues with moonlighting and are left wondering what they can do to ensure they are getting the best from their employees as the primary employer. This can be a very tricky situation for both employers and employees.

Many employers wonder if they can institute a policy that prohibits employees from accepting outside employment altogether. Preventing an employee from obtaining outside employment is typically not legal. Many states have enacted “lawful conduct statutes” that say employers can not take adverse action against employees for lawful off duty activities the employee may engage in outside of the workplace, which would include moonlighting. Outside of these statutes, constricting employees’ off duty activities is generally frowned upon by society unless there is a legitimate business reason for concern. For this reason, it is best to forego attempting to institute a specific no moonlighting policy that would most likely be unenforceable if tested in court.

Employers should focus their attention on areas of legitimate business concern when addressing the matter of outside employment. For example, a company has a legitimate concern that their customers receive the highest product quality and best customer service support possible. Conflict of Interest policies are standard issue in today’s employee handbooks and cover many of the areas concerning employees’ secondary employment. Some important items that should be covered in a Conflict of Interest Policy include;

• Language that employment with your company is considered primary employment
• Secondary employment can not be a conflict of interest in terms of working for a competitor or the employee starting a company that is in direct competition with the primary employer
• Company time and materials are not to be used for non-company endeavors
• Proprietary information is not be shared with anyone outside of the company (This may also be covered in a Confidentiality Policy)

The second major area of concern for employers is that of productivity. It is clearly a conflict of interest if an employee takes a second job on the night shift and is tired and can not properly perform their duties for the primary employer. The concerns in this area are most likely covered in policies that already exist in your current employee handbook, such as;

• Customer Relations
• Professional Behavior
• Performance Standards
• Safety Standards
• Confidentiality
• Prohibited Behavior (sleeping and/or attentiveness issues on the job)
• Solicitation (may apply when second job is direct sales such as Avon, Pampered Chef, etc.)

Employers must let employees know what is to be expected of the employee performance-wise, and that employment with their company is considered primary employment. When and if a performance issue arises, it should be addressed immediately and the appropriate disciplinary steps should be taken according to the organization’s policies and practices.

Many employers are encouraging employees to discuss potential secondary jobs with them to determine if there is a conflict of interest prior to the employee accepting the position. This also gives the employer the opportunity to remind the employee about the performance standards expected of all employees.

Please remember the friendly representatives at MMC, Inc. are always available to assist with any of your business concerns. If you have any questions please give us a call (888) 866-2476 or email us at info@mmchr.com

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