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Make sure employees know your policies on moonlighting

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in Employment Law,Firing,FMLA Guidelines,Human Resources

Do your employees ever take time off (whether vacation, personal time or even FMLA leave) to work a second job? You can’t do much about that unless you have a solid policy that prohibits moonlighting. Otherwise, employees on leave are free to spend that time any way they want, even working for someone else or in their own business.

Recent case: Douglas Rooks, who is black, worked for Altamaha Technical College (ATC) teaching commercial truck driving. He was out on FMLA leave but taught several classes at a defensive driving center his wife owned in Baxley, GA. His ATC supervisor knew what he was doing.

Also while out on FMLA leave, Rooks submitted a memo to the college alleging a variety of unfair and discriminatory practices. One supervisor was disciplined as a result of Rooks’ charges. But from then on, according to Rooks, other supervisors harassed him. He then filed an race-discrimination complaint with the EEOC.

After his doctor cleared him to return to work, ATC refused to renew Rooks’ contract. He sued for retaliation. The college said it hadn’t renewed Rooks’ contract because he taught classes at his wife’s school during his FMLA leave.

But because ATC didn’t have a “no-moonlighting” policy, and because Rooks’ supervisor already knew he worked elsewhere, the court said Rooks deserved a trial. Now a jury will decide whether firing him because he worked a second job was just an excuse for retaliation. (Rooks v. Altamaha Technical College, No. CV-206-72, SD GA, 2007)

Final note: If the college had a no-moonlighting policy, then there would be no question that it had a legitimate reason for discharging Rooks. But this looks like retaliation, since no one at ATC had questioned his second job before, even though they knew about it.

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