Moonlighting Trend – Employee by Day, Entrepreneur by Night

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: 

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