Employer Considerations: When Moonlighting Jobs Tend to Increase

Employers may find it is not uncommon that their employees start taking on moonlighting jobs during recessionary periods. Of course, that is, for those people fortunate enough to even find additional work! 

In fact, the U.S. Department of Labor reported in late 2008 that the number of employees working two jobs had already increased by five percent since the previous year. And I suspect that those numbers are continuing to increase. Not only that, the Bureau of Labor Statistics showed that in 2008, there were 7.5 million workers holding down one full-time job and one part-time job. So this is a major workplace trend we are experiencing. 

I think you will find a number of reasons for this growing employment trend, which are also probably a direct result of the country’s economic conditions: 

1. Some workers may have had their hourly or weekly hours reduced.
2. Some workers might have to moonlight out of financial necessity or as a way to meet their family’s financial needs.
3. Some workers might be exploring new career opportunities.
4. Some workers might want to gain new skills and experiences.

The question then becomes: What should employers do when confronted with this issue of employees who are compelled to seek moonlighting jobs? 

Depending on your business and circumstances, I summarized a few considerations below that you may wish to think about: 

1. Reconsider establishing policies against moonlighting—understandably, an employer’s first reaction might be to ban the practice and put a policy in place that forbids employees from accepting outside employment. Policies of this nature are usually intended to protect the company’s interest. For instance, employers may want to keep confidential and proprietary information from being disclosed to competitors. Or employers may want to control risks associated with loss of employee productivity and/or absenteeism. Irrespective of moonlighting concerns, however, these are legitimate concerns that employers will always have about their workforce. The reality is that moonlighting policies can be difficult to enforce, and they can be even more difficult to defend. Another reality is that the political climate is changing and the sphere of employee rights is gaining momentum.
2. Consider executing confidentiality or a non-compete agreement with key employees or with those employees who have access to proprietary information. This type of document should be prepared by the organization’s legal counsel, so that it addresses specifics and meets all federal and state laws and regulations. 
3. Consider alternatives to including a specific policy against moonlighting in an employee handbook (as such policies can be difficult to enforce, as mentioned in number one). Alternatively you might consider:

• Addressing common employer concerns such as absenteeism, loss of productivity, appropriate work guidelines, etc. For instance, you can remind employees that outside employment commitments will not be considered a valid excuse for tardiness, for refusing to work required overtime, or meeting work-related traveling obligations.
• Including information about ethical concerns and respective appropriate behaviors.
• Creating job descriptions. This information identifies the essential duties that must be performed in order to be successful in the employees’ respective positions.
• Creating performance standards. These metrics provide employers with a way to measure and evaluate employees. As a result, if an employee fails to meet these standards, then this process affords the employer with disciplinary options. 

In closing, I want point out that this area of moonlighting jobs represents complicated issues. Employers are encouraged to seek legal counsel, as these employment law professionals are best equipped to help employers determine their options. The United States has numerous federal, state and local laws governing individual privacy rights, so employers must be very careful when delving into the private lives of its employees. 

Remember, too, as an employer, your ultimate goal is to build and maintain that employer-to-employee trusting relationship.

Employers may find it is not uncommon that their employees start taking on moonlighting jobs during recessionary periods.