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Double duty: Regulating moonlighting and following the law

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in Discrimination and Harassment,Employment Law,Human Resources

As the economy heads south, many of your employees have probably considered—or already found—second jobs to supplement their incomes.

Most of the time, moonlighting poses no conflict with your organization’s work. But an employee’s second job could lower productivity and morale. It could create liability for you.

Case in point

A court decided it was legitimate for the U.S. Postal Service to demote Denise Roland after her Mary Kay cosmetics business began taking up too much of her day. Roland, who is black, sued for race discrimination. She argued that the post office ignored it when a white male employee delivered Avon orders on duty.

But Roland had solicited fellow employees and even customers to buy her products and become sales reps.

The court said the punishments could differ without being race discrimination. (Roland v. U.S. Postal Service, No. 06-12261, 11th Cir.)

How hard to crack down?

You are free to regulate off-duty employee behavior—within narrow limits.

You have a right to prohibit employees from taking other jobs. But can you ban off-the-clock moonlighting? And when should you discipline employees for moonlighting?

Advice: Set a clear policy that outlines what you consider acceptable outside employment. Address moonlighting in your employee handbook. Specify what off-duty activity is prohibited in terms of unbecoming, immoral or illegal behavior. Feel free to restrict outside employment that conflicts with your legitimate business interests. Spell out restrictions on outside business or employment.

5 moonlighting rules

1. Avoid blanket anti-moonlighting policies—or rules against interacting with competitors. If you need to protect trade secrets, have employees sign noncompete agreements.

2. Check state laws and get legal advice on anti-moonlighting policies.

3. Uniformly apply your moonlighting policies. Otherwise, you run the risk of a discrimination lawsuit.

4. Thoroughly investigate all violations of the policy. Employers may not fire or discipline an employee on mere suspicion of unbecoming, illegal or conflict-of-interest behavior.

5. Be absolutely equitable about how you punish employees who break your rules. Deviating from standard policy could be seen as discrimination.

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